Gabel v. City of Houston

Smith, J.

A motion to quash the writ of certiorari for want of sufficient cause in the petition must be made at the first term of the court, and a motion made at a subsequent term will not be entertained. (6 Tex., 234; 12 Tex., 31; 5 Tex., 570.) In this cause no motion was made in the district court to quash, and we think it too late to make objections of that character for the first time in this court.

The defendant below was charged with having sold malt liquors in a public house in Houston, on Sunday, contrary to an ordinance of the city prohibiting it, which 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 person shall 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.”

That the defendant did sell malt liquors on Sunday within the city of Houston, in a public house, contrary to the provisions of this ordinance or by-law, we think is sufficiently established. He contends that the ordinance is inoperative and void, because, first, the mayor and city council had no power delegated to them in the charter of the city to enact such a by-law or ordinance; second, that if the charter, in language, does authorize it, expressly or by implication, the law and the ordinance in that respect are both unconstitutional, and therefore void.

So much of the law necessary here to cite, under which the mayor and city council acted, reads as follows, to wit:

“Seo. 4. Be it further enacted, That 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 better maintenance of the police, tranquillity, and safety of the city.”

It has been said that, whenever a corporation is created, the law creating it tacitly, if not expressly, conveys to it the power to make by-laws for its government and support. This power is incidental in the very act of incorporation. It is seldom left to implication, and hence it is sometimes said, that if the charter designate the cases and the purposes for which by-laws may be enacted by the corporation, the power is confined to them, and all others are excluded by implication.

This incidental power of malting by-laws results from necessity, to enable the corporation to effect the purposes and objects for which it was created. It being impossible for human sagacity to discern and make provision for all the varying circumstances attendant upon the operations of the corporation, and hence the necessity of delegating to the corporation the power to make such regulations as may be proper to meet the exigency of the occasion and accomplish the object and purposes for which it was created.

The by-laws must not be inconsistent with the charter. This is the fundamental law of its creation; and, in effect, it is the constitution to the petty legislative body to whom the power to enact by-laws may be delegated. (3 Burr., 1838.)

The language of a charter created for the public good will be construed liberally in order to support a by-law that tends reasonably to effect that purpose.

In this case the language of the charter is, that the mayor and council shall have authority to make by-laws to secure the safety and convenience of passing in the streets, and to regulate everything which “ relates to grog-shops and other persons keeping public houses,” and to make regulations which may contribute to the better administration of affairs of the corporation, as well as for the maintenance of the police, “tranquillity,” and safety of the city. It must'be admitted, that these powers were delegated for the public good of the city of Houston, and should receive a liberal construction in their application to effect the purposes intended; and we are of the opinion that the authority here delegated is ample for the enactment of the ordinance here complained of. It regulates the exercise of the right to sell spirituous, vinous, and malt liquors in public houses in so much only as was reasonably necessary for the tranquillity, good order, and safety of the corporation. It will not be denied that such an ordinance conduces to the good order and tranquillity of a city when it enforces obedience to the rules of sobriety and decency within its limits even more rigorously upon Sunday than other days; for the people, from custom if not from law, desist upon that day from labor, and observe it as a day of rest, and, if tempted, with the presence of the grog-shop vender of ardent spirits and malt liquors, may fall into the vice of intoxication, and consequent riots, breaches of the peace, and other outlawry, and greafly disturb the peace and tranquillity of the orderly and well-disposed inhabitants of the city upon that day, which should be kept holy, free from vice and worldly pursuits.

The- constitution of the Republic of Texas, under which this charter was granted, reads as follows, to wit: “Ho 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.”

Section 4, article I, of the State constitution of 1845, reads as follows, viz:

“ 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 be necessary to protect every religious denomination in the peaceable enjoyment of their own mode of public worship.”

We are equally well satified that the ordinance complained of is not obnoxious to either of these constitutional provisions, but, in fact, has the effect to protect the inhabitants of the city of Houston in the unmolested enjoyment of these religious privileges, secured by these sections of the constitution of the Republic and State.

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 the government shall not establish any religion for the people to obey, or prohibit the free exercise thereof, appears to be now the settled American doctrine, well established in the organic law of the nation and the States. Done here shall be compelled to observe the Jewish, Mohammedan, Catholic, or Protestant form of religion, or to embrace any at all. All are free to embrace any religious denomination, civilized or pagan, that his judgment or taste may dictate as the best or preferable for him.

When we consider the attributes of the Deity and of future rewards and punishments, and the temporal welfare of society, government can hardly consider itself entirely free from the fostering care and protection of religion, as connected with the personal, social, and domestic virtues of its people; but to what extent government may go in the support and protection of religion, with safety and propriety, may be a subject of much contrariety of opinion with statesmen and publicists.

The vast majority of our people profess a belief in the Christian religion, and its existence has been recognized by the constitution framed by them. The followers of that faith have from its earliest existence and foundation regarded and kept Sunday as a day of rest, free from labor and devoted to religious worship. And those not attached to any religious denomination have habitually kept that day as one of rest from secular pursuits; and its observance, as a day of rest and holy, has for centuries become more than a habit'or custom: it has become a sentiment, en-grafted into our very social organism, to be observed and respected by all, without the sanction of law or decrees of courts. And, as a civil regulation, it has been considered important for the physical well-being of society that Sunday be observed as a day of rest from labor, in order that the mind and body may repose, that the former may recover or retain its wonted elasticity and vigor, and the latter may recuperate and be prepared for more arduous and protracted exertions in manual labor. And in this view the observance of Sunday, by a suspension of all secular pursuits, may, with great propriety, be enforced by civil law.

The observance of Sunday we believe essential to a full enjoyment of religious exercises by the various denominations, in the spirit of the constitution of the State quoted above. How could a religious set of people worship in a city, crowded with a busy population, and in the midst of the confusion, noise, and bustle of worldly business, and the practices deemed by them unholy, and a sacrilegious desecration of that holy day?

The ordinance complained of does not deprive any inhabitant of the city of Houston of any of the religious rights and privileges guarantied to him in the Constitution of the United States or of this State. The mayor and council did not attempt to fasten upon the people of the city of Houston any particular form of religion—Jewish, Mohammedan, Homan Catholic, Protestant, or pagan; nor has the free exercise of the rites of any religious denomination been forbidden or prohibited in any way. The right to worship God according to the dictation of the conscience has not at all been interrupted; nor is it enjoined upon any inhabitant of the city to attend the religious exercises of any denomination; and he may decline to attend any, and amuse himself with the metaphysical reflections and deductions of the infidel. He is not required to attend, erect, or support any place of worship, or to maintain any ministry, directly or indirectly, contrary to his conscience. His rights of conscience, his religious principles, and practices under them, are not at all infringed or impaired; nor does the ordinance pretend to give any preference to any religion or mode of worship.

The latter clause of the recited section of the State constitution, it will be remembered, provides, that it shall be the duty of the legislature to pass such laws as may he necessary to protect every religious denomination in the peaceable enjoyment of their own mode of worship. This ordinance of the council of Houston is believed to he of the character embraced in this clause. It does not in the least interfere with the religion of any person, or the exercise thereof. It does not enjoin upon any person the duty of conforming his conduct to the rites-of his church; but it does prevent him from following a tippling occupation in the city on Sunday, by which crowds of persons may he congregated at a public house, and, under the influence of intoxication, may commit riots and breaches of the peace, to the great annoyance of others, who may feel it their religious duty to desist from labor, attend worship, and keep the day holy; and we see a propriety and due respect for the sentiments or customs of our people manifested in the rule that compels a cessation from labor on Sunday, in order that not only man and beast may recuperate, and he restored to health and mental and physical vigor, but that those who, in good faith, may desire to keep that day holy, for the worship of God, may remain undisturbed in the exercise of their religious duties; and any law that tends to this result cannot be considered as repugnant to the constitution.

That there is nothing in the Constitution of the United States or of this State to prevent the legislature from forbidding the pursuit of worldly business upon Sunday has been decided in a number of the States. (20 Mo., 214; 8 Barr, 326; 3 Serg. & R., 50; 15 Ohio, 230.) The judgment is

Affirmed.