Gabel v. City of Hous.

• Decision Date: 31 January 1867
• Citation: 29 Tex. 335
• Parties: PETER GABEL v. THE CITY OF HOUSTON.
• Court: Texas Supreme Court

29 Tex. 335

PETER GABEL

v.THE CITY OF HOUSTON.

Supreme Court of Texas.

January, 1867.

A motion to quash a writ of certiorari, for want of sufficient grounds in the petition, must be made at the first term of the court after the return of the writ. A motion made at a subsequent term will not be entertained. Pas. Dig. art. 468, note 331; 5 Tex. 570;6 Tex. 243;12 Tex. 31.

If no motion was made in the district court, an objection to the sufficiency of the writ will not be entertained in the supreme court.

The Sunday ordinance, under which the proceeding was had, reads as follows: “If any person or persons shall, on Sunday, in any public house, room, building or inclosure, or in any storehouse or bar-room, in said city, sell, or furnish for use, any spirituous, vinous or malt liquors of any kind, such persons shallq be deemed guilty of a misdemeanor, and shall pay a fine of not less than $20 nor more than $50, for each and every such offense, to be recovered, with costs, as in cases of other breaches of the city ordinances.” The defendant contended that the charter did not give the power to pass this ordinance; and that, if it did, it was unconstitutional. Both propositions were overruled by the court.

The 4th section of the charter of the city confers these powers: “The mayor and city council of the city of Houston shall have full power and authority to make and pass such by-laws or ordinances as they shall deem necessary to maintain the cleanness and salubrity of said city; to secure the safety and convenience of passing in the streets; * * to regulate everything which relates to bakers, butchers, tavern-keepers, or of grog-shops and other persons keeping public houses; * * and to make other regulations which may contribute to the better administration of the affairs of said corporation, as well as the maintenance of the police, tranquillity, and safety of said city.” 3 Session Laws, 85. This authority is ample for the enactment of the Sunday ordinance.

The enacting the necessary by-laws is an incidental power to a corporation; but these laws must not be inconsistent with the charter, for that is the constitution to the petty legislative body to whom the power to enact by-laws may be delegated.

The language of a charter will be liberally construed, in order to support a by-law which reasonably tends to effect that purpose.

The 3d section of the bill of rights, in the constitution of the republic, reads as follows: “No preference shall be given by law to any religious denomination or mode of worship over another, but every person shall be permitted to worship God according to the dictates of his own conscience.” Pas. Dig. p. 41, § 3, note 154; Pas. Annot. Const. note 245, pp. 254-256.

And the 4th section of the bill of rights of the state constitution of 1845 reads as follows: “All men have a natural and indefeasible right to worship God according to the dictates of their own consciences: no man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry, against his consent: no human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion; and no preference shall ever be given by law to any religious societies or mode of worship. But it shall be the duty of the legislature to pass such laws as [may] shall be necessary to protect every religious denomination in the peaceable enjoyment of their own mode of public worship.” Pas. Dig. p. 47, sec. 4.

The foregoing city ordinance is not obnoxious to either of these constitutional provisions, but, in fact, it has the effect to protect the inhabitants of the city of Houston in the unmolested enjoyment of the religious privileges, secured by these sections of the bills of rights.

That all people of this country shall have the right to worship God according to the dictates of their own consciences, or not at all, if they prefer, and that government shall not establish any religion for the people to obey, or prohibit the free exercise thereof, appears now to be the settled American doctrine, well established in the organic law of the nation and the states. Pas. Annot. Const. note 245.

No one here shall be compelled to observe the Jewish, Mohammedan, Catholic, or Protestant form of religion, or to embrace any religion at all. All are free to embrace any religious denomination, civilized or pagan, which his judgment or taste may dictate as the best or preferable for himself.

The Christian religion has been recognized by our constitution, and the Christian Sabbath observed, not as a habit merely, but as a sentiment of our social organism. (The subject discussed.)

The ordinance does not deny to any citizen or inhabitant any religious privilege or deny any right guarantied by the constitution of the United States or of this state.

The last clause of the bill of rights (already quoted) makes it the duty of the legislature to pass such laws as may be necessary to protect every religious denomination in the peaceable enjoyment of their mode of worship. This ordinance of the council of Houston is of this character.

APPEAL from Harris. The case was tried before Hon. PETER W. GRAY, one of the district judges.

Peter Gabel was a lager-beer distiller and seller of the beverage in the city of Houston. Peter partook of the notion, quite prevalent among a large and influential class all over the United States, that whatever may be lawfully done on week days may be done on Sundays; and that all laws restricting the vending of liquors and other drinks on Sunday, and drinking and jollifying over them, are infringements upon liberty and natural right; that they violate the rights of conscience and of religion; and that such laws are an infraction of the constitution of the United States and of the state, and are void.

The city of Houston was incorporated by an act of the congress of the republic, on the 28th January, 1839. Vol. 3, pp. 84-89. The 4th section of the charter gives the right to the mayor and common council of the city to regulate everything which relates (among other things) to tavern-keepers, or grog-shops, and other persons keeping public houses, * * “and to make other regulations which may contribute to the better administration of the affairs of the corporation: Provided, That no by-laws or regulations which may have been made by said mayor or city council shall have any force and effect in what may be contrary to the provisions of the constitution of the republic of Texas.” To the mayor and recorder, as justices of the peace, were given the right to try offenses. There were various amendments to the charter, but none of them particularly enlarge the powers of the corporation beyond preserving order and punishing misdemeanors. The Sunday ordinance on which the case turned was fully set out in the opinion of the judge, and it is printed in the syllabus.

Peter Gabel presented his petition to the court, in which he set forth that he had been condemned to pay a fine for violating the Sunday law, which law, he insisted, was unconstitutional and void; and, moreover, insisted that he proved that lager is not “malt liquor;” that it is a harmless beverage, and little or none given to intoxicate; and that the city did not fully prove that lager was ““malt liquor,” though it was proved that Peter was a lager-beer distiller, and a large purchaser of malt. He said that his condemnation was in violation of the constitution, and contrary to the evidence. The judge granted the certiorari, and the case was tried, de novo, in the district court. The parties waived a jury and submitted the case to the court. It was proved that on Sunday, 6th March, 1859, Peter sold lager-beer to his guests at his brewery, which was also used as a place of recreation, where various persons were in the habit of resorting on Sunday and other days; that the house was kept in an orderly manner, and in such way as to give no special annoyance to the inhabitants in the neighborhood, or to passers-by, except in one or two instances of quarreling; that the liquor called “lager-beer” is not technically such, though it resembles it and is made of the same materials; that neither lager-beer proper nor Peter's drinks are “malt liquor,” according to its classification in chemistry, or as understood by the manufacturers of liquors; that malt liquors must contain a certain per cent. of malt, which per cent. this liquor does not contain; but that, in common parlance, both lager-beer and porter are called “malt liquors,” for, generally, there is a small quantity of malt used in their manufacture; that a kind of beer sold by defendant, and usually called here “lager-beer,” may be made without malt, and often is so made, and has been made by defendant, for sale on Sundays, since this proceeding was instituted; that malt has been seen at Peter's brewery, before and after the institution of the prosecution; that he had imported malt for making beer. One witness testified that he had seen malt at Peter's and other breweries in the process of making beer. The printed city charter and amendment and the Sunday ordinance were made a part of the record, and they are sufficiently set out in the opinion.

As this case is the first permanent record of a great controversy, which assumed shape in the constitutional convention, and is destined to form no inconsiderable part in the political elements which control society, the judgment of Judge Gray, which gives his reasons, is here copied in full:

“This day came the parties by their attorneys, and waiving trial by jury, and submitted the cause to the court for adjudication on the evidence; and the same having been heard and agreed, because it is considered by the court that the city council, having power delegated by the charter to regulate public houses, grog-shops, hotels, and places of amusement, and to provide for the tranquillity, peace and order of the city, therefore...