Ex Parte Tracey

• Citation: 93 S.W. 538
• Parties: Ex parte TRACEY.
• Decision Date: 15 February 1905
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

93 S.W. 538

Ex parte TRACEY.

Court of Criminal Appeals of Texas.

February 15, 1905.

Original application by Ed Tracey for writ of habeas corpus. Applicant remanded to custody.

Barry Miller, for relator. Coke & Coke, J. J. Collins, City Atty., John C. Robertson, Asst. City Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Applicant, Ed Tracey, sued out an original writ of habeas corpus before this court, alleging that he was unlawfully restrained of his liberty by one Epps G. Knight, chief of police of the city of Dallas, by virtue of a complaint made by M. B. Coone, charging said applicant with unlawfully interfering with, hindering, and resisting the said Coone, a police officer of the city of Dallas, who was then and there attempting to arrest G. A. Garvis, charged with an offense over which the corporation court of the city of Dallas had jurisdiction.

It is conceded that the proceedings leading up to the appointment of both Knight and Coone were regular; that Knight and Coone had both been appointed, the first as chief of police, and the latter as policeman, of the city of Dallas, by the board of commissioners of said city, consisting of Bryan T. Barry, mayor and ex officio president of said board, and J. E. Cockrell, commissioner of the fire department, and L. Blaylock, commissioner of the police department—the last two appointed by the Governor; that said commissioner of the police department appointed and nominated said Knight and Coone as chief of police and policeman respectively; and that they had been confirmed by the board of commissioners, and the commissions issued to them by Bryan T. Barry, mayor of said city. The contention is that the proceedings involving the appointment of said chief of police and policeman, though provided for in the charter (section 201), was illegal and void, because, under the Constitution, the offices of policeman and chief of police of the city of Dallas, being local offices, are elective by the voters of the municipality; or, if appointive, such appointments must be made by the local municipal officers, and not through or by the commissioners named by the Governor. It is further insisted that, the appointment of Knight being illegal and void, the appointment by him, or by the commissioner of police, of M. B. Coone, as a police officer, is void, although his commission was issued by the mayor of said city; that said persons, being neither de jure nor de facto officers, were not authorized to make the arrest of Garvis, and not authorized to detain him in custody; that the action of said officer making the arrest was a trespass and an assault, and that applicant, Tracey, was authorized to interfere and prevent said arrest. This is a brief and sufficient statement of the case in order to discuss the questions presented.

Applicant contends that the case of Ex parte Lewis, 73 S. W. 811, 7 Tex. Ct. Rep. 974, is decisive of this question in his favor. The question presented in that case was whether the Governor was authorized to appoint the mayor and two aldermen of the city of Galveston, who constituted a majority of the board of aldermen; the charter providing for the appointment of said officers by the Governor of the state. The decision in that case was based upon the proposition that they were purely municipal officers, and that by the terms of the Constitution they were elective officers, and the power could not be conferred on the Governor to appoint them. There it was said: "No question is or can be made here that the officers appointed were not municipal officers. Indeed, they were both executive and legislative officers of the city of Galveston. It was there maintained that, in a case involving the interpretation of the Constitution, it was competent to refer to the former history and traditions of our state with reference to municipal corporations, in order to determine the right of the voters to elect their municipal officers. And we there held, if the construction on that subject was at all doubtful or open to interpretation, that, in view of our history and traditions regarding the election of municipal officers, it was strongly implied that municipal corporations had the right to select their mayor and aldermen. In support of this doctrine, we referred to McAlister's Case, 88 Tex. 284, 31 S. W. 187, 28 L. R. A. 523, an examination of which will demonstrate that the Supreme Court of this state announced that view. However, the decision of the Lewis Case, supra, was based on the proposition that the Legislature was restrained by our Constitution from authorizing the Governor to appoint purely municipal officers. To sustain this view, article 6 of the Constitution was referred to. This article, after providing for the qualification of voters in towns and cities, uses this language: "These shall have the right to vote for mayor, and other elective officers." We considered this strong language, for it not only defined who were voters in towns and cities, but conferred upon them the right to vote for mayor and other elective officers. I understand the rule there enunciated was to the effect that the Legislature could do anything of a legislative character, unless restrained by some clause of the Constitution, expressly or by strong implication. This has been the rule adopted by this court in the construction of legislative acts. See Ex parte Hazel Hart, 41 Tex. Cr. R. 581, 56 S. W. 341; Ex parte Wilbarger, 41 Tex. Cr. R. 514, 55 S. W. 968. Lytle v. Halff, 75 Tex. 128, 12 S. W. 610, is cited with approval, which uses the following language: "The Constitution of a state operates upon the lawmaking branch of the government purely as a limitation, and the Legislature exercises plenary power in the enactment of laws, except as such authority is expressly or by a clear implication thereunder denied." After the decision in Ex parte Lewis, supra, the Supreme Court of this state, in Brown v. City of Galveston, 75 S. W. 488, 7 Tex. Ct. Rep. 758, announced a different doctrine. There is was held that there was nothing in the Constitution prohibiting the Legislature from authorizing the Governor to appoint purely municipal officers of towns and cities. This, as I understand it, was based on the proposition that the Legislature was omnipotent in the passage of laws, except as restrained by the Constitution; and it was insisted that no prohibition could be found. It is somewhat remarkable that, in all the cases cited by the Supreme Court to sustain them in holding that the Governor was empowered to appoint purely municipal officers of towns and cities, only one of them, to wit, the Nevada case, sustains that court to the full extent of the doctrine announced by them in Brown v. Galveston. The North Carolina case is not in point, as it was decided under the peculiar provisions of their Constitution. In the subsequent case of Ex parte Levine (Tex. Cr. App.) 81 S. W. 1206, the writer uses this language: "Notwithstanding the able discussion of this question by the Supreme Court, I fail to see any cogent reason for a change of the views expressed by a majority of this court in the Lewis Case. However it is here contended that there is a distinction between the commissioners appointed in this charter and purely municipal officers, such as the mayor and aldermen." But this question was left undecided, and we are now for the first time confronted with it.

It must be conceded that there is nothing in the Constitution of this state making the office of chief of police or policeman elective. Nor can it be said that aforetime (that is, before the adoption of our present Constitution) by invariable custom, these officers were elective. If we recur to the history of such corporations in this state, the marshal or chief of police and policeman have sometimes been elective and sometimes appointive, according to the terms of the charter. In either event, the election or appointment has invariably been by the local authorities. From the cases cited by the Supreme Court and others, it appears that a distinction is drawn between the power of the Governor to appoint purely municipal officers, such as mayor and aldermen, and quasi state officers, such as those pertaining to the fire, sanitary, and health departments. People v. Mahaney, 13 Mich. 481; Davock v. Moore (Mich.) 63 N. W. 424, 28 L. R. A. 783; Britton v. Steber, 62 Mo. 370; State v. Hunter, 38 Kan. 578, 17 Pac. 177; Redell v. Moores (Neb.) 88 N. W. 243, 55 L. R. A. 740; Newport v. Horton, 22 R. I. 196, 47 Atl. 312; Burch v. Hardwicke, 30 Grat. (Va.) 38, 32 Am. Rep. 640; Americus v. Perry, 114 Ga. 871, 40 S. E. 1004, 57 L. R. A. 230; State v. Fox (Ind. Sup.) 63 N. E. 19, 56 L. R. A. 893; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; Allor v. Wayne Co., 43 Mich. 76, 4 N. W. 492; State v. Denny, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79; Amer. & Eng. Ency. of Law, vol. 20, p. 1223, and notes. Under our statutes, chiefs of police, as well as policemen, are made state officers, i. e., peace officers to execute state laws. Articles 43 and 44, Code Cr. Proc. 1895. In this state policemen and firemen are held to be state officers. Whitfield v. City of Paris, 84 Tex. 431, 19 S. W. 566, 15 L. R. A. 783, 31 Am. St. Rep. 69; Shanewerk v. City of Ft. Worth (Tex. Civ. App.) 32 S. W. 918; Givens v. City of Paris, 5 Tex. Civ. App. 705, 24 S. W. 974; City of Corsicana v. White, 57 Tex. 382. In Whitfield's Case, supra, our Supreme Court held that, where a policeman was authorized by the city to shoot unmuzzled dogs running at large in said city, and in attempting to shoot such a dog, and by his carelessness, inflicted a wound upon a bystander, the city was not liable, because he was acting as a state officer, and the rule respondeat superior did not apply. In Givens Case, supra, the same rule was adopted; and in Shanewerk's Case, supra, the same rule was applied to firemen.

A chief of police and policemen being state...