Ex Parte Fagg , 40 L.R.A. 212 ( 1898 )

This is a proceeding on an original habeas corpus, granted and made returnable before this court. The petition alleges that applicant is illegally restrained by one J.C. Arnold, chief of police of the city of Dallas, by virtue of a certain judgment of commitment of the city court of Dallas. The agreed statement of facts contains a copy of the judgment and writ of commitment, the complaint on which the applicant was tried, together with a copy of the ordinance under which the prosecution and conviction were had. Said ordinance follows the State law on the subject, and makes it an offense against the city of Dallas for any person to keep or exhibit, for the purpose of gaming, any gaming table or bank of any kind or description whatever, or any table or bank used for gaming, etc.; and the punishment imposed is a fine of not less than $25, nor more than $100, and imprisonment in the city jail for not less than ten nor more than ninety days, which is the same in amount and degree as that provided under the State law or statute on the subject, which makes gaming an offense against the State laws. There was no information filed against defendant, but the complaint on which he was tried is as follows: "The State of Texas, County of Dallas, City of Dallas. Personally appeared before the undersigned authority, E.F. Gates, who, after being duly sworn, deposes and says that Bud Fagg, in the city of Dallas and State of Texas, on the 9th day of October, 1897, and before the filing of this complaint, did unlawfully keep and exhibit, for the purpose of gaming, a gaming table and bank, to wit, a faro bank, contrary to ordinances in such cases made and provided. [Signed] E.F. Gates." Sworn to and subscribed before T.L. Lawhon, city secretary. On the trial the relator Fagg was convicted, and his punishment assessed at a fine of $25 and ten days imprisonment in the city jail.

The contention of the applicant is that said conviction, being under an ordinance, and in the city court of Dallas, is illegal and void: (1) Because the statutes of the State make the exhibiting of a gaming table for the purpose of gaming an offense against the State, and it is not competent for the Legislature to grant to a municipality authority, by ordinances, to supersede the State law on the subject; (2) because the city court of Dallas has no authority to try offenses against the State law; (3) and, granting the city court of Dallas has the power to try State cases, it must proceed as a State court. In the view we take of this question, it is not necessary to discuss the last two propositions, inasmuch as the offense alleged against applicant was prosecuted merely as a violation of the city ordinances; and we are accordingly confronted with two questions: (1) Does the charter of Dallas authorize the city council to pass an ordinance making said offense of keeping and exhibiting a gaming table for the purpose of gaming an offense against the city? (2) If the charter grants this power, did the Legislature have the power, under the Constitution and laws or this State, to confer upon the municipality of Dallas authority to make the exhibiting and keeping of a gaming table for the purpose of gaming an offense against the city?

We might observe here that section 24 of the new charter of the city of Dallas, granted by the Twenty-fifth Legislature, gives to the city court of Dallas jurisdiction as follows: "(1) To try, hear, determine, and punish all misdemeanors over which the Dallas city court now has jurisdiction. (2) To try, hear, determine, and punish all misdemeanors arising under the provisions of this charter; to have concurrent jurisdiction with the State courts over all misdemeanors against the State laws, committed within the city limits, except theft and those involving official misconduct, and to have exclusive jurisdiction over disorderly houses and female vagrants." But, as stated, it is not necessary to discuss this provision with reference to the jurisdiction of the city court of State offenses, prosecuted as such; and so it does not become necessary to discuss the bearing of the case of Harris County v. Stewart, 91 Tex. 133, or to review the case of Leach v. State, 36 Texas Criminal Report, 248; nor will we do so, further than to suggest that we find nothing in the former case requiring us to change the views expressed in the Leach case. Furthermore, while not necessary, yet the question being insisted on, we will examine the position of applicant with reference to the caption of the charter of the city of Dallas as passed by the Twenty-fifth Legislature, said caption being entitled "An act to incorporate the city of Dallas, and grant it a new charter."

Appellant's contention is, that if it be conceded that the Legislature has the power, in accordance with the view taken by the Supreme Court in Harris County v. Stewart, supra, to confer jurisdiction upon a municipal court, and so create a State court, the Legislature has not done so in this instance. Entertaining the view, as we do, that a municipal court is not a State court, except in a limited sense (that is, a State court for municipal purposes only), we would expect to find, under the above caption, not a State court, as a part of the judicial system of the State, but a municipal court, having jurisdiction and cognizance of matters incidental to the corporation. In this regard we hold the views expressed in Blessing v. City of Galveston, 42 Tex. 641. As we understand that case, it was an injunction proceeding brought by Blessing and others to restrain the city of Galveston from proceeding in prosecutions alleged to have been commenced by warrants issued by John S. Rhea, claiming to be acting as recorder, under pretense of authority alleged to have been conferred on him by an act of the Legislature incorporating the city of Galveston. Several of the parties had been arrested, and others threatened with arrest, for breach of an ordinance requiring them to pay a license tax on their respective occupations, trades, and professions, and also to enjoin and restrain appellee from the collection of said license tax. The fourth ground urged by complainants against the enforcement of the tax in the city court was that the recorder's court, created by the charter of the city of Galveston, in which the proceedings were had to enforce the penalties for failure to pay said taxes, is not such a judicial tribunal as is warranted by section 1 of article 5 of the Constitution. On this question Judge Moore uses the following language, which we quote in full: "The objection made to the constitutionality of the recorder's court created by the charter has been, in effect, answered by what has been heretofore said. If the Legislature may, by reason of its inherent legislative power, create a municipal corporation for purposes of local government, it seems to follow, as a necessary conclusion, that it may invest with such powers as are necessary and essential for the ends and purposes of its creation. Without the grant of general police powers, and the means of enforcing their respect and observance, the act of incorporation of a town or city would be little better than waste paper. Judicial power of a general character, such as is conferred upon constitutional tribunals, or officers clothed with judicial functions for the general administration of the laws, in contradistinction to local or municipal ordinances and regulations, can not be conferred upon mere corporation courts created to enforce the police powers delegated to such corporations. This seems to be the extent to which we can certainly say, in the absence of the constitutions and statutes applicable to them, that most of the cases cited by appellant clearly go. Some of them, however, seem to lay down a broader rule. We can not consent to give the sections of our Constitution, conferring and distributing the judicial power, so limited and technical a construction and application. We think its language, vesting judicial power 'in such inferior courts and magistrates as may be created in this Constitution, or by the Legislature under its authority,' entirely sufficient to warrant the Legislature, when creating municipal corporations, in the absence of any restriction, to create local municipal tribunals as an essential necessity to the well-being of such local municipal corporations;" citing State v. Young, 3 Kan. 445; Hutchings v. Scott, 9 N.J. Law, 218; Shafer v. Mumma, 17 Md. 381; Mayor, etc., v. Dechart,32 Md. 369. Here, to our minds, it is very apparent that Judge Moore drew a distinction between State tribunals constituting a part of our judicial system and municipal courts as such. The latter he regarded as merely an incident to the corporation, and with limited powers to enforce municipal ordinances only. As stated above, we would not expect, under the caption of an act to charter or incorporate a city or town, to find thereunder an article or clause creating a court for other than purely municipal purposes, much less an act creating a State court, or vesting a municipal court with jurisdiction which pertains to a State court. And, if the prosecution in this case was for a State offense as such, we would be inclined to hold that the title of said act does not embrace the subject of creating a State court of the municipal court of the city of Dallas, or of conferring a jurisdiction which pertains to our State courts on said tribunal. On this subject we refer to Wulftange v. McCollom, 83 Ky. 361; Brown v. State,79 Ga. 324, 4 S.E. Rep., 861; State v. Kinsella, 14 Minn. 524 (Gil., 395); Holmberg v. Hauck, 16 Neb., 337, 20 N.W. Rep., 279; City of San Antonio v. Gould, 34 Tex. 49; Giddings v. San Antonio,47 Tex. 556.

However, as stated before, the question here presented to us is whether or not the charter of Dallas confers authority on the city council to make this an offense against the city, and whether or not the Legislature can confer this authority. The charter of the city of Dallas is a special charter, authorized under the Constitution for cities having more than 10,000 population; and by a number of sections, from 48 to 124, inclusive, said charter proposes to confer general powers on the city council to do certain things. Among a number of other things which the city is thus authorized to do, it appears to be authorized, by ordinance to make certain acts which are penal offenses under the State laws, offenses against the city. See secs. 83, 84, 86, 87, 89, 92, 93, and 103. All of the other enumerated sections appear to be regarding matters incidental to and growing out of the municipal corporation. Section 103, we presume, contains the provision under which it is contended the city council had authority to pass the ordinance against keeping and exhibiting gaming tables, under which the conviction was had in this case. Said section reads as follows: "To license, tax, and regulate billiard tables, pin alleys, and ball alleys; to suppress, restrain, and regulate and control disorderly houses, tippling shops and groceries, gambling and gaming houses, and games of every kind, lotteries and all fraudulent devices and practices, bawdy houses of prostitution, and to punish all keepers of said houses and exhibitors or players at said games and other things, with the same penalties, fine, and imprisonment as may be inflicted therefor by the statutes of the State of Texas." It would appear therefrom that the Legislature had conferred the power (if it was authorized to do so) on the city council to pass an ordinance making the offense created by the statutes of the State an offense against the State, to wit, the keeping and exhibiting of a gaming table and bank for the purpose of gaming, also an offense against the city; and the only question then is, did the Legislature have the constitutional right, under the Constitution and laws of this State, to confer this power? We would observe here that the general laws of the State (see articles 929-931, Code of Criminal Procedure 1895, inclusive) puts mayors and recorders of cities on the same plane, as to the administration of laws with reference to criminal prosecutions, as justices of the peace, and vests them with the same power and jurisdiction, and authorizes municipal councils, by ordinances, to create acts which are made penal by State laws also offenses against the city, and to make all prosecutions and convictions under city ordinances good in bar of prosecutions for the same act under State laws, and vice versa. The act here complained of does not come within this category. It is such an offense as a justice of the peace has no jurisdiction to try, but the power to try and punish the same is vested by the Constitution and laws of the State in the county court (see secs. 16 and 19, art. 5, Const.; and see arts. 91 and 96, Code Crim. Proc. 1895); that is, imprisonment in the county jail being a part of the punishment under the State law for this offense, it can only be tried in the county court, same being a court of record. Some authorities hold that where the State law has acted upon a matter, and made the act an offense against the State, the Legislature can not afterwards delegate authority to municipal governments to create the same act an offense against the city. The State having once occupied the territory, the city is excluded from interfering with it. See Mayor, etc., of Savannah v. Hussey,21 Ga. 80; Wayne Co. v. City of Detroit, 17 Mich. 390; Cool. Const. Lim., 140, 228; 11 Am. and Eng. Enc. of Law, p. 955; 17 Am. and Eng. Enc. of Law, p. 237. The decisions of our State, however, appear to be otherwise, and to authorize municipal corporations to take jurisdiction, and by ordinance create an act which is already a State offense an offense against the city. This seems to be the holding of this court with reference to such offenses as justices of the peace have jurisdiction to try; and in such cases it is held that the ordinance must conform to the State laws in creating the offense and imposing the penalty therefor. See Ex Parte Boland, 11 Texas Crim. App., 159; Flood v. State, 19 Texas Crim. App., 584; Ex Parte Freeland, ante, p. 321; Angerhoffer v. State, 15 Texas Crim. App., 613. There are some decisions of this court which hold that a municipality can, by ordinance, take jurisdiction of offenses which are made such by the laws of this State, and of which the county court has exclusive jurisdiction; and this notwithstanding section 12 of article 5 of the Constitution, which requires that "all prosecutions must be in the name and by authority of the State of Texas, and shall conclude against the peace and dignity of the State." See Ex Parte Wilson, 14 Texas Crim. App., 592. In the Wilson Case, supra, the constitutional provision above mentioned was not discussed at all; nor was it discussed in any case we are aware of, except in Leach v. State, 36 Texas Criminal Reports, 248.

Of course, a great many matters are incidental to municipal corporations, and are not at all violative of State laws, and no question can arise as to ordinances covering said acts. A number of acts are petty offenses, and are covered by State laws, and would appear also to be peculiarly offenses against the municipal government, and incidental to such government, as well as offenses against the State. Our Penal Code defines a petty offense as "one which a justice of the peace or the mayor or other officer of a town or city may try and punish." Penal Code 1895, art. 57. And this appears to be in consonance with the authorities defining a petty offense. Some of the cases hold that a petty offense can be made an offense against the municipal corporation by ordinance, and can be punished without violating the above provision of the Constitution with reference to prosecutions, while others hold the contrary. See note to State v. Robitshek (Minn.), 33 Law. Rep. Ann., 33 (same case, 61 N.W. Rep., 1023), and authorities there cited; City of Davenport v. Bird, 34 Iowa 524. In the latter case the action was under an ordinance of the city of Davenport prescribing that "every person who shall unlawfully disturb the public quiet of any street, alley, avenue, public square, market place," etc., "by loud or unusual noise, by blowing horns or other instruments," etc., "shall be guilty of a misdemeanor;" and the fine provided was not less than $3 nor more than $100, and imprisonment until the fine and costs were paid, provided that the imprisonment should not exceed thirty days. It was claimed in that case that said action was a prosecution; that it was not authorized under the Constitution of Iowa, which is similar in its provisions to ours. We quote from that case as follows: "Is it necessary, under the Constitution, that all prosecutions for violations of municipal police ordinances shall be conducted in the name and by the authority of the State of Iowa? Or, in other words, is that clause of the city charter of Davenport which directs 'that all suits, actions, and prosecutions instituted, commenced, or brought by the corporation, shall be instituted, commenced, and prosecuted in the name of the city of Davenport,' in conflict with the constitutional provision before referred to? We are of opinion that it is not. This clause of the Constitution occurs in article 5, which treats of the judicial department of the government. This article vests and defines the judicial power of the State, establishes the tenure of office of the judges, and defines the mode of their election; fixes their salary, and limits the number of judicial districts; provides for the election of an attorney-general, and other matters pertaining to the judicial arm of the State, among which is the clause under consideration. From all this it seems manifest that the requirement that 'all prosecutions shall be conducted in the name and by the authority of the State of Iowa' contemplates such criminal prosecutions as shall be instituted and prosecuted before the tribunals, which are provided for in that article of the Constitution, under the statutes of the State. It is fitting and appropriate that prosecutions for violations of the criminal laws of the State should be carried on in the name of the government. But there is no fitness or propriety in requiring the State to be a party to every petty prosecution under the police regulations of a municipal corporation. Such a construction of this article of the Constitution seems to us unwarranted, and not intended by the framers of the Constitution. It was held by the Supreme Court of Pennsylvania that the word 'process,' in the eleventh section of the fifth article of the Constitution of Pennsylvania, which provides that the style of all process shall be 'The Commonwealth of Pennsylvania,' was intended to refer to such writs only as should become necessary to be issued in the courts of the exercise of that judicial power which is established and provided for in the article of the Constitution, and forms exclusively the subject matter of it. 3 Pa. St., 99. See also Sprague v. Birchard, 1 Wis. 457. On the same principle, we are of opinion that the word 'prosecutions,' in the eighth section of article five of our Constitution, was intended to refer only to such criminal prosecutions, under State laws, as should be cognizable by the judicial power, which is established and provided for in that article, and that it was not intended to include prosecutions under ordinances of municipal corporations, cognizable before local police magistrates. It follows, therefore, that, in sustaining the demurrer on the first ground stated, the court below erred." This does not appear to have been a State offense by statute. Treating it as a municipal offense merely, it states the correct doctrine. Under the authorities, we are inclined to the view that, in the face of the constitutional provision before quoted, where an offense has been made such by State law, notwithstanding it is a petty offense, it must be prosecuted by authority of the State, and against its peace and dignity. In this case, however, it is not necessary for us to decide that question, as the offense for which the relator was tried and punished was not a petty offense, but an offense over which the county court, being a court of record, alone had jurisdiction.

Now, the question which presents itself is: Does the fact that the municipal council of Dallas has, by ordinance, created the exhibiting and keeping of a gaming table for the purpose of gaming, an offense against the municipality, relieve it of being a prosecution? A "prosecution" is defined by our statute to be "the whole or any part of the procedure which the law provides for bringing offenders to justice." See article 26 of the Penal Code of 1895. "It is a criminal proceeding at the suit of the government." Tennessee v. Davis, 100 U.S. 269. A proceeding by a municipal corporation to enforce such fines and penalties as are ordinarily and by usage enforced by them is not criminal in its nature, whatever may be the form of the procedure. Such proceedings are only quasi criminal, and are not prosecutions. 17 Am. and Eng. Enc. of Law, p. 260, and note; 1 Dill. Mun. Corp., sec. 432; City of Sparta v. Lewis (Tenn. Sup.), 23 S.W. Rep., 183. As heretofore stated, the conviction in this case would not come in the category of petty offenses, nor an offense merely growing out of and incidental to the municipal government; and, in our opinion, no matter what might be the tribunal or what the character of procedure, the prosecution, under the Constitution and laws of this State, must be carried on in the name and by the authority of the State of Texas, and conclude against its peace and dignity. The fact that the prosecution was brought under the city ordinance did not deprive it of the characteristic of a prosecution; nor could the Legislature by indirection, as by vesting jurisdiction of the case in some other than a State tribunal, so change the nature of the offense as to take in out of the category which had been affixed to it by State law, of a prosecution for a criminal offense. And we hold that it was not competent for the municipal council of Dallas, by ordinance, to create the keeping and exhibiting of a gaming table or bank (which was by the statute an offense against the State) an offense against the city of Dallas; and the prosecution under such ordinance could not be maintained in the face of our Constitution, which prescribes, as before stated, that all prosecutions shall be conducted in the name and by the authority of the State, and shall conclude against the peace and dignity of the State. And we accordingly hold that the relator is entitled to be discharged, and that the costs of this court be taxed against relator; and it is so ordered.

Relator discharged.

HURT, Presiding Judge, concurs in result, but dissents as to some of the propositions announced in the opinion.