Ex Parte Levine

This in an original application for the writ of habeas corpus. The relator shows (and we understand it to be conceded), that he is held on account of a conviction in the corporation or city court of Corsicana for the alleged sale of intoxicating liquors in said city, outside of the saloon limits thereof, and his fine assessed at the sum of $25. The city of Corsicana had a special charter granted to it by the Twenty-eighth Legislature, which superseded the former charter under the general law. Sections 191, 192, and 193 of the charter define the saloon limits of the city of Corsicana, and prohibit the sale of intoxicating liquors in said city outside of said saloon limits, and the ordinance was passed by said city in pursuance of said provisions. It is also conceded that the relator, after the passage of said ordinance, carried on his saloon business outside of said saloon limits, and made sales of intoxicating liquor. Said charter, among other things, provides for a commission appointive by the Governor, consisting of three freeholders of the city, residents therein at least five years preceding their appointment, having the same qualifications of aldermen. This board of commissioners are given certain jurisdiction of the police, fire, street and health departments of the city. (See secs. 271 to 295 of the charter.) The Governor appointed said commissioners in pursuance of the authority vested in him by the charter, to wit: S.A. Pace, C.H. Allyn and J.H. Woods. These, together with E.O. Call, mayor, under the charter, constitute the board of commissioners of said city of Corsicana. John Stewart was appointed by the commissioner of the police department, the chief of police or city marshal. There is also a provision in the city charter creating a city court, called a "corporation court." Secs. 49 to 66 inclusive. Relator was tried in said corporation court for violating said saloon ordinance and was fined the sum of $25 as above stated, and was committed to the custody of said Stewart, chief of police. The proceedings are regular. He comes before us and seeks his discharge because, as he claims (1) the commission feature in said city charter renders the whole charter absolutely null and void. (2) Because the corporation court is not created according to law, and is not the corporation court provided by the act of the Twenty-sixth Legislature, page 40. (3) Because our State Constitution provides for local option, and it is not competent for the Legislature, outside of the provisions of said Constitution, to prohibit the sale of intoxicating liquors in any part of the territory of the State. On the other hand, the respondent insists (1) that the commission feature does not render the entire charter void; that this feature may be eliminated from the charter and still there would be a complete municipal government; and that this feature of the charter nowhere comes in contact with relator's rights in his conviction and restraint. (2) It is a reasonable regulation (outside of local option territory) for the Legislature to prescribe in cities and towns saloon limits, and that the reasonability of such limits being an act of the Legislature, can not be questioned.

In Ex parte Lewis, 7 Texas Ct. Rep., 974, 45 Tex. Crim. 1, the question of the power of the Legislature to authorize the Governor to appoint purely municipal officers of cities was discussed; and it was there held that, under our Constitution, the Governor did not have such authority. In Brown v. City of Galveston, 7 Texas Ct. Rep., 758, the Supreme Court of this State had before it the same question, and took a contrary view. Notwithstanding the able discussion of this question by that learned tribunal, I fail to see any cogent reason for a change of the views expressed by a majority of this court in the Lewis case, supra. 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 of a city; that these commissioners are quasi State officers, and as such are appointive. I do not deem it necessary to decide this question, inasmuch as in my opinion the commission feature of the charter of Corsicana can be rejected or eliminated and still leave a going concern, vested with all the powers and authority of a municipal government. The rule on this subject being, that if a part of an act is unconstitutional, and this can be rejected, and leave the remander complete in itself, it is the duty of the courts to uphold that portion of the act which is constitutional. Cooley on Const. Lim., 6 ed., p. 210, 211; Warren v. Mayor of Charleston, 2 Gray (Mass.), 84; Rathbone v. Wirth,150 N.Y. 459, 34 L.R.A., 408. We quote from Mr. Cooley, as follows: "Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it can not be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained." And we quote from Warren v. Mayor of Charleston, supra, as follows: "If the provisions are so mutually connected with and dependent on each other as conditions, considerations and compensations for each other as to warrant the belief that the Legislature intended them as a whole, and that if all could not be carried into effect, the Legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected, must fall with them."

Now, applying this rule of construction, which we understand to be the conceded rule on the subject, can we eliminate the commission feature of the charter of the city of Corsicana, and still have a complete municipal government in all its departments. An examination of the charter will leave no doubt upon this question. The commission feature itself is in a separate and distinct portion of the charter. See Charter, secs. 271 to 295 inclusive. Their duties are defined and are limited to their respective departments, and as to these matters, even in the appointment of the officers, which they are authorized to appoint, it is provided that, if there should be no such board as the board of commissioners, the city council shall appoint these officers. Secs. 40 to 42 inclusive. As to the matters over which they have jurisdiction, it is further provided if the commission from any cause is unable or unwilling to act, the city council can act regardless of the provisions relating to a board of commissioners. See Charter, secs. 27, 34. And it is provided in section 292, that in the event for any reason there should be no commissioners or a quorum thereof appointed and qualified, able and willing to act, then during such period the provisions of this charter concerning the board of commissioners shall be suspended, and the powers hereinbefore granted to the city council and board of school trustees shall be construed without reference to the provisions concerning the board of commissioners. These provisions would clearly imply that the Legislature in passing the charter provided for such a contingency wherein the commissioners from any cause should be unable to act. In addition to that, a perusal of the provisions of the charter, shows that it provides for all the departments of a municipal government, irrespective of a commission; and in addition thereto, engrafted the articles under a separate head which related to an appointive commission. I do not believe there is any difficulty in holding that the charter provisions regarding an appointive commission can be eliminated and leave a going concern, equipped in all its departments, and that under such circumstances the plain duty is, if it be conceded that the charter provisions relating to an appointive commission are unconstitutional, to reject the same and uphold the remaining provisions of the charter. Especially so in regard to this relator, inasmuch as the charter provisions and the ordinances under which he was adjudged guilty nowhere come in contact with the board of commissioners. They could neither have authorized the passing of said ordinance, nor could they have prevented it. The charter gave the commission no power whatever concerning said saloon ordinance.

In regard to the corporation court in which relator was convicted, while I regard the effort in the charter to constitute that a State court as futile, and without effect (Ex parte Fagg, 38 Tex.Crim. Rep.; Ex parte Sibley, 65 S.W. Rep., 372; Ex parte Wilbarger, 41 Tex.Crim. Rep.), still this was a case exclusively cognizable by a municipal court as such, and it had jurisdiction to try and punish relator upon conviction of a municipal offense provided for by city ordinance. Blessing v. Galveston, 42 Tex. 641.

I further believe that the city of Corsicana, not having adopted local option, it was competent for the Legislature to prescribe in the charter a saloon limit in said city. Under the authorities I believe this to be an act of regulation not affected by the provisions of our Constitution in regard to local option. See Dorman v. State, 34 Ala. 216; and see Black on Intoxicating Liquors, sec. 40; Freund on Police Power, sec. 33.

I also believe that the saloon limits being prescribed in the charter, its reasonableness can not be questioned.

It may be said that Stewart, chief of police, to whose custody relator was committed, having been appointed by the board of commissioners of said city, is not authorized to hold relator. Be this as it may, in my view he is held by virtue of the judgment of the court which imposed a fine on him. The council has recognized Stewart as city marshal, and he may be regarded as a de facto officer. People v. Lathrop, 24 Mich. 235; Brown v. State, 60 S.W. Rep., 548. At any rate, the relator should be held under the judgment of said court until the fine and costs are paid; and he is accordingly remanded to custody.

Relator remanded to custody.