Ex Parte Broussard , 74 Tex. Crim. 333 ( 1913 )

I have been unable to agree with the conclusion of the majority as expressed in Judge Harper's opinion. I believe the legal propositions relied upon and presented by relator correctly present the law of the case. These propositions have been ably and forcefully stated by his counsel in their brief and written argument and so clearly reasoned and supported by authority they should have been sustained. So believing, I requested his counsel, Messrs. Dougherty Gordon and Messrs. W.F. Ramsey and C.L. Black to formulate and state the propositions of law applicable to the case to form the basis of my dissenting opinion. They have done so, and so clearly and ably I have thought it but just and appropriate to adopt their statement of the law as my dissenting opinion, which I now do, which is as follows:

"1. The ordinance under review in this case, in effect, prohibits any person from keeping more than six head of stock within 300 feet of any hotel or private residence in the City of Beaumont without first obtaining a permit from the city council. The ordinance contains no conditions regulating the issuance of permits by the city council. It prescribes no conditions, upon the satisfaction of which the applicant for a permit would become entitled to same and entitled to enforce his right to same in the courts by proper remedy. The whole matter, under the terms of the ordinance, is left within the unconditioned and consequently uncontrollable discretion of the city council. Under the terms of this ordinance, the city council may grant a permit to one person and refuse it to another under the same circumstances, and there would be, if the ordinance is valid, no legal remedy for the person to whom a permit is refused. I think the overwhelming weight of authority condemns such an ordinance as void, upon the ground that it subjects the right to the lawful ownership and use of the property to the unconditioned and arbitrary discretion of the city officers. The following are a few of the cases condemning as void ordinances similar to the one here under review:

"Yick Wo v. Hopkins, 118 U.S. 356 (prohibiting the establishment and maintenance of laundries except in brick and stone buildings within the City of San Francisco without first obtaining a permit from the Board of Supervisors).

"Barthet v. City of New Orleans, 24 Fed. Rep., 563 (ordinance void prohibiting the maintenance of a slaughter house within certain limits of the city, unless permission be first granted by the city council).

"State v. Mahner, 45 La. Ann., 496, 9 So. Rep., 480 (ordinance void forbidding the maintenance of dairies within certain limits of the city without a permit from the city council).

"Dubarry v. State (La.), 11 So. Rep., 718 (ordinance void prohibiting the keeping of a private market within the city without permission of the city council).

"Montgomery v. West (Ala.), 42 So. Rep., 1000, 123 American State Reports, 33, and note (ordinance void prohibiting the operating of steam engine, foundry, cotton gin, bakery or establishment for boiling soap in the city without first obtaining the consent of the city council).

"May v. The People (Colo.), 27 Pac. Rep., 1010 (an ordinance void which prohibited the storing of hides or pelts within the city limits without permission of the council).

"Mayer v. Radecke, 49 Md. 230, 33 American Reports, 239.

"Mayor and City Council of Hagertown v. Baltimore O.R. Co. (Md.), 68 Atl. Rep., 490 (an ordinance void, prohibiting the keeping of live stock within 250 feet of two private residences within the limits of the town, without a permit from the mayor and city council — almost literally the same as the ordinance here involved).

"Cicero Lumber Co. v. Town of Cicero (Ill.), 51 N.E. Rep., 758 (ordinance void which prohibited the driving of omnibuses or heavy vehicles over a certain boulevard without a permit therefor from the board of trustees of the town).

"Noel v. People (Ill.), 58 N.E. Rep., 616 (Act void which delegates power to a State Board of Health to issue permits and does not prescribe restrictions or conditions).

"City of Richmond v. Dudley (Ind.), 28 N.E. Rep., 312 (ordinance void which prohibits the storing of oils or inflammable materials in the city except by persons or at places permitted by the city council).

"City of Elkhart v. Murray (Ind.), 75 N.E. Rep., 593 (adhering to the rule stated in the last case).

"Bear v. Cedar Rapids (Iowa), 126 N.W. Rep., 324 (ordinance void providing that no person should be allowed to sell milk within the city without first obtaining a permit from the Board of Health, and not providing any conditions upon which permits shall be issued or withheld).

"Walsh v. City of Denver (Colo.), 53 Pac. Rep., 458 (ordinance requiring butchers to obtain a permit from the health committee of the city before carrying on their business, and not containing any conditions or regulations governing issuance, held void).

"Commonwealth v. Maletsky (Mass.), 89 N.E. Rep., 245 (ordinance void which prohibits any person to occupy or use a building for the purpose of picking, storing or assorting rags, without a written permit from the chief of the fire department, and no conditions prescribed).

"City of Richmond v. Model Steam Laundry (Va.), 69 S.E. Rep., 932 (ordinance void which prohibits a certain act to be done except by a permit from the city council).

"Boyd v. Council (Ky.), 77 S.W. Rep., 669 (ordinance void which prohibits any person from erecting any structure within the city without the permission of the common council, no conditions being prescribed).

"Mayor v. McCann (Tenn.), 58 S.W. Rep., 114 (ordinance void which makes it unlawful for the proprietor of any saloon where intoxicating liquors are sold to enter his saloon on Sunday for any purpose without obtaining a written permit from the mayor).

"Goodale v. Sowell (S.C.), 40 S.E. Rep., 970, laying down the same principle.

"Village v. Van Camp (Wis.), 117 N.W. Rep., 1012 (ordinance void which provided that all saloons of the village should close at 11 o'clock and remain closed until 5 o'clock, unless by special permit of the president of the village).

"State v. Crepeau (R.I.), 71 Atl. Rep., 449 (ordinance void which undertakes to control the construction of buildings without a permit first obtained, and does not define conditions under which permits may be obtained).

"City v. Kirby (S.D.), 60 N.W. Rep., 156, construing a similar ordinance and holding same void.

"State v. Kuntz (La.), 16 So. Rep., 651 (ordinance void which prohibits the stabling of more than two horses within the city without a permit from the city council).

"Los Angeles v. Hollywood Cemetery Association (Cal.), 57 Pac. Rep., 153 (annulling an ordinance prohibiting the enlarging of cemeteries without the council's permission, no conditions being prescribed).

"Ex parte Theisen (Fla.), 11 So. Rep., 901 (annulling an ordinance forbidding liquor sales within certain districts of the city without the council's consent).

"State v. Tenant, 110 N.C. 609 (ordinance void which prohibits the erection of buildings without the permission of the aldermen, no uniform rules being prescribed to obtain permits).

"State v. Dearing (Wis.), 54 N.W. Rep., 1105 (annulling an ordinance prohibiting parading in the city without the mayor's permission).

"Bostock v. Sams, 52 Atl. Rep., 665 (condemning ordinance similar in effect).

"Some of the foregoing cases, as will be noted, involve ordinances almost identical with the one here construed. All of them involve the application of a similar principle. It is not necessary to quote from them in detail. The following quotation, however, in the case of Cicero Lumber Co. v. Town of Cicero (Ill.), 51 N.E. Rep., 758, evidences a course of reasoning which will be found in all the above cases and which states clearly the grounds upon which these ordinances are held void: ``It prohibits that which is in itself and as a general thing perfectly lawful and leaves the power of permitting or forbidding the use of traffic teams upon the boulevard to an unregulated official discretion, when the whole matter should be regulated by permanent legal provisions, operating generally and impartially. The ordinance is not general in its operation. It does not affect all citizens alike to use traffic vehicles. It is only persons driving traffic vehicles upon the boulevards without the permission of the board of trustees who are subjected to the penalties of this ordinance. The ordinance in no way regulates or controls the discretion vested thereby in the board. It prescribes no conditions upon which the special permission of the board is to be granted. Thus the board is clothed with the right to grant the privilege to some and to deny it to others. Ordinances which thus invest the city council or board of trustees with a discretion which is purely arbitrary and which may be exercised in the interest of a favored few are unreasonable and void.'

"The following quotation from State v. Mahner, 9 So. Rep., 480, where the court had under review an ordinance almost identical with the one here involved, is clearly in point:

"``The ordinance is not general in its operation. It does not affect all citizens alike who follow the same occupation which it attempts to regulate. It is only those persons who keep more than two cows in the prohibited limits without the permission of the city council who are subjected to the penalties in this ordinance. The discretion vested by the ordinance in the city council is in no way regulated or controlled. There are no conditions prescribed upon which the permit will be granted. It is within the power of the city council to grant the privilege to some, to deny it to others. The discretion vested in the council is purely arbitrary. It may be exercised in the interest of a favored few. It may be controlled by partisan considerations and race prejudices, or by personal animosities. It lays down no rules by which its impartial execution can be secured or partiality or oppression prevented.'

"The same reasoning is applicable to the ordinance, with the violation of which the relator is charged. It does not prohibit all persons within the city of Beaumont from keeping more than six head of stock within 300 feet of a private residence. It prohibits only those to do this who are unable to secure a permit from the city council; and does not prescribe any conditions regulating the issuance of permits and upon compliance with which the citizen could enforce in the courts the issuance of same. In this connection it should be remembered that it is not even pretended that, aside from this ordinance, the keeping of more than six head of cattle in a city is an unlawful act or is, in itself, a nuisance. In other words, this ordinance undertakes to prohibit or regulate an otherwise lawful use of property. This being true, it should have prescribed conditions and regulations governing the issuance of permits, so that, upon a compliance with same, a citizen desiring a permit could enforce his right to same by appropriate remedy in each case.

"2. I am also unable to agree with the position of the majority, stated in the original opinion, that the proper remedy, if any, for the relator is that of mandamus. If this ordinance is valid, it confers upon the city council a pure and uncontrolled discretion with reference to the issuance of permits. This being true, no court would issue a writ of mandamus to compel the issuance of same, for the rule is elementary that, before the writ of mandamus will issue, it must appear that the duty is ministerial. The cases cited in the majority opinion, holding mandamus to be a proper remedy to compel the issuance of a license, upon examination, will be found to be cases where the ordinance or statute under which the license was to be issued prescribed regulations and conditions governing the issuance of same and upon compliance with which the applicant became absolutely entitled to the license. This ordinance prescribes no conditions and no regulations. It would, therefore, be an impossibility for the applicant, in his petition for mandamus, to make it appear that he had satisfied all conditions, for the reason that none are prescribed. The whole matter is left unconditioned and, as stated in many of the authorities, consequently uncontrollable discretion of the city council. It is upon this very ground that these ordinances have been generally held void by the courts. An examination of the authorities hereinbefore cited will show that many of the courts have regarded this fact as of controlling importance in determining that the ordinance construed was invalid. See also the following: Yick Wo v. Hopkins, 118 U.S. 356; Cyc., vol. 23, p. 138; Cyc., vol. 25, p. 623; Ry. Co. v. Railroad Commission, 95 Tex. 671; Sherman v. Smith, 35 S.W. Rep., 395; Brown v. Houston, 48 S.W. Rep., 760; Lewright v. Bell, 94 Tex. 556; Teat v. McGaughey, 85 Tex. 478.

"3. I am also unable to agree with the conclusion of the majority that the decisions of the Supreme Court of the United States are against the position of the relator. This case, it seems to me, presents, in all material respects, the same question presented in the great case of Yick Wo v. Hopkins, 118 U.S. 356. The ordinance there under review prohibited the establishment and maintenance of laundries within the City of San Francisco not built of brick or stone, without the permission of the board of supervisors. It was the object of the ordinance to prevent the establishment and maintenance of laundries in wooden buildings. The Supreme Court of California held it to be a valid police regulation. The Supreme Court of the United States also admitted that the police power of the city extended over the subject matter covered by the ordinance, but it held the ordinance void upon two grounds: First, that, on its face, it clearly vested in the city council an unconditioned and uncontrollable discretion with reference to the issuance or withholding of permits to establish and maintain laundries in the city. The ordinance, just as the one here under review, prescribed no conditions, upon the satisfaction of which one became entitled to the permit. It left the whole matter to the arbitrary discretion of the board, and the court held the ordinance void on that ground. Second, it further held the ordinance void on the ground that, aside from what might be its natural or possible operation it had in fact been so construed and so applied by the municipal authorities as to result in an actual discrimination. The court there laid down the rule which it has since followed in many cases that, in determining whether a given act or ordinance is violative of the Fourteenth Amendment, it will not confine itself to the mere language of the Act or ordinance, but will look rather to its actual construction and administration by those whose duty it is under the laws of the State to construe and administer it. The facts of that case show that the ordinance under review had been so construed and so applied by the city authorities as to create against the relator a discrimination violative of the Fourteenth Amendment, and it was held that he was entitled to relief without reference to whether the ordinance was on its face void or not. Now, in the later case of Fischer v. St. Louis, 194 U.S. 361, cited in the majority opinion, the court had under consideration merely the question as to the bare validity of the ordinance considered aside from its actual operation. The court, in that opinion, calls attention to the fact that no complaint was made as to the actual operation of the ordinance and that it was not contended that there had been any discrimination in the operation of the ordinance. This fact distinguishes the case from the case of Yick Wo v. Hopkins and from the case here presented. It is agreed in the record on this appeal that there are twenty-three other places in the City of Beaumont, situated within 300 feet of a private residence and situated exactly under the same conditions as the relator as to sanitation and proximity to residence, where more than six head of stock are kept by the permission of the city council. In other words, it is admitted in this record that the relator is prosecuted for the violation of this ordinance, when twenty-three other persons in the city of Beaumont, situated exactly similar to himself in all material respects, have been granted permits under this ordinance to do the same act. It therefore appears that, as this ordinance is construed and administered by the city authorities, it has resulted in actual discrimination against the relator, in violation of the Fourteenth Amendment. As stated in the case of Yick Wo v. Hopkins, it is not necessary for this court, in deciding the case at bar, to reason from the probable to the actual and pass upon the validity of this ordinance as tested merely by the opportunities which its terms afford of unequal and unjust discrimination in its administration, for the record as presented shows that the ordinance, in its actual operation and actual administration by the city authorities, has resulted in an unconstitutional discrimination against the relator. It was said in the case of Yick Wo v. Hopkins:

"``Though the law itself be fair on its face and impartial in its appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand so as practically to make unjust and illegal discrimination between persons in similar circumstances material to their rights, the denial of equal justice is still within the prohibition of the Constitution.'

"The same must be said in the case at bar. Even though this ordinance be fair on its face, yet it appears from the record that it has been so construed and so operated by the city authorities charged with the duty of administering it as to result in a discrimination, whereby this relator is prosecuted for the doing of an act which twenty-three of his neighbors are permitted to do under the express sanction of the city council.

"I find nothing in Mr. Dillon's work on Municipal Corporations that militates against this view. In section 598, just following what is quoted in the majority opinion, the learned author says:

"``There are, however, limits to the principle (referring to the principle quoted in the majority opinion). Thus, for example, if it is shown that the power thus conferred upon the counsel or officer is in fact arbitrarily exercised against the individual under the sanction of the State authority to deprive him of rights which he ought to be permitted to enjoy by discriminating against him in the enjoyment of these rights, the Supreme Court of the United States has given redress when the case has come before it in such manner as to authorize the interference of a Federal court,' citing Yick Wo v. Hopkins, supra.

"It thus appears that Mr. Dillon recognizes the distinction between the doctrine of the case of Yick Wo v. Hopkins and the doctrine announced in Fischer v. St. Louis. The doctrine last quoted should apply to this case with peculiar force, for it is agreed in the statement of facts that the relator is situated as to sanitation and proximity to residence in the same way as twenty-three other persons to whom the city council has issued permits. No reason is suggested in the record why he is thus discriminated against.

"I further find, in the recent case of Los Angeles v. Home Telephone Co., 227 U.S. 278, 57 Law. Ed., 510, that the Supreme Court has recently again held that, even though a State law or municipal ordinance be undiscriminating on its face, yet it is enforced in such a manner as to create discrimination, relief will be afforded. The case also cites with approval Yick Wo v. Hopkins, and many other authorities, laying down the same rule. I am sure that, in the case of Fischer v. St. Louis, supra, the Supreme Court did not intend to overrule the case of Yick Wo v. Hopkins, or in anywise to limit the effect of that great case. In the first place, the court, in deciding Fischer v. St. Louis, does not even refer to the case of Yick Wo v. Hopkins, and, in the second place, I find that, in many cases decided since Fischer v. St. Louis was decided, the court has expressly approved the holding of Yick Wo v. Hopkins. (See Los Angeles v. Home Telephone Co., supra; also State v. Van de Carr, 199 U.S. 552.) I think in this case that the agreed statement of facts shows that this ordinance is so administered as to create a discrimination. No reason is suggested in the record why the relator should be refused the permit when twenty-three of his favored neighbors are granted permits. ``The discrimination is, therefore, illegal and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution. The imprisonment of the petitioner is therefore illegal and he should be discharged.'

"If, however, it can be said that there is conflict between the case of Yick Wo v. Hopkins, and Fischer v. St. Louis, then I am constrained to follow the first cited case. I find that the opinion of the court in Fischer v. St. Louis is criticised as unsound by no less an authority than Judge A.C. Freeman, the great editor and annotator of the American State Reports, in his note to the case of Montgomery v. West, volume 123, page 41. I further find that the case of Yick Wo v. Hopkins has been cited with approval and followed by nearly all of the State courts before which this question has come for decision. (See authorities cited in the first section of this opinion.) It is approved by the great writers on constitutional law. It is generally regarded as one of the greatest decisions ever handed down by the Supreme Court of the United States, and is in fact almost a legal classic. I am unable to believe that a case so well considered, so often cited and so universally approved announces any doctrine that is unsound. The following quotation from the opinion states a principle which has been many times quoted with approval and which, if followed, renders the ordinances here construed void beyond all question:

"``When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and, in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth "may be a government of laws and not of men." For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.'

"I agree to this doctrine. A municipal ordinance which grants to certain municipal officers the unregulated, unconditioned and consequently arbitrary and uncontrollable discretion to determine whether a citizen shall enjoy, within the city, the lawful use of certain property should be stricken down as void. The ordinance under review commits to the city council of the City of Beaumont the unregulated, unconditioned and unrestrained discretion to determine whether or not a person residing in the city shall keep more than six head of stock. The ordinance prescribes no conditions or regulations governing the issuance or withholding of permits. A citizen of the city would be powerless in any court to enforce the impartial administration of this ordinance. The ordinance is, therefore, void, ``for the very idea that one man may be compelled to hold his life or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.'"

[Pending on writ of error in United States Supreme Court. — Reporter.]

[Case did not reach hands of Reporter until June, 1914. — Reporter.]