Ex Parte A. Abrams

120 S.W. 863, 56 Tex. Crim. 465, 1908 Tex. Crim. App. LEXIS 518

Opinions

RAMSEY, Judge.

This is an original proceeding in the nature of habeas corpus begun and filed in this court. It is alleged in substance that the relator is illegally restrained of his liberty by one James Hughes, chief of police of Texarkana, Texas, under a warrant issued on a complaint filed in the corporation court of said city charging the sale of spirituous liquors without first having obtained a license so to do. The evidence shows that relator had duly taken all the precedent steps required by law to engage, in the business, had paid his State and county tax and had tendered to the collector of taxes of Texarkana one half of the tax on said business as fixed by the State law. He was refused a license by the city, under the terms of the special charter granted in 1907, which in terms denies to the city authority to “ever issue at any one time more than two licenses for saloons or retail liquor dealers in any one half block.”

1. The discharge of relator is sought on several grounds which we will now consider: 1. It is claimed that that portion of the Act of the Thirtieth Legislature granting to the city of Texarkana a special charter and as an incident thereto creating a court with jurisdiction to try offenses against the laws of the State is void for the following reasons: (1) Because it attempts to embody more than one subject in the same act. (2) Because the Legislature has no •authority to create a city court to try offenses against the laws of the State. (3) Because the creation of a State court is not expressed in the caption of the act. The respondent substantially takes issue with relator on all the propositions above stated and further contends that the portion of the act relating to, and the recitals of such act in respect to the creation and organization of a corporation court may and should be treated as surplusage for that the Act of the Twenty-sixth Legislature creating and establishing in each of the cities, towns and villages of this State, a State Court to be known as the corporation court in such city, town or village, prescribing the jurisdiction and organization thereof, and abolishing municipal courts, is the creator of said court issuing the process herein, and the law by virtue of which said court exists, wholly independent of any of the provisions of the Texarkana Charter Act.

Section 35 of article 3 of our Constitution provides that “no bill (except general appropriation bills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title.” It has been uniformly held that a liberal construction will be applied in determining whether or not a statute violates this section. Breen v. Texas & P. Railway Co., 44 Texas, 302. The question was before this court in Joliff v. State, 53 Texas Crim. Rep., 61, 109 S. W. Rep., 176, and was carefully considered. We there held that an act is not unconstitutional because more than one object is contained therein where the objects are germane to the main subject, or they relate directly or indirectly to the main subject, and have a mutual connection with and are not foreign to the subject of such act, or when the provisions of the act are of the same nature and come legitimately under one subject. Fahey v. State, 27 Texas Crim. App., 146. The true intent of this provision of our Constitution is that the general ultimate object and subject shall be stated in the title and not the details by which this object shall be accomplished. Any related provision seeking to carry out or aid the dominant and declared object of any given act is not subject to the objection here urged, although same may not be specifically indicated in the title. Smith v. Grayson. County, 18 Texas Civ. App., 153; Snyder v. Compton, 87 Texas, 374; Cooley Const. Lim., 170.

2. The question of the' authority of corporation courts in cities to try offenses against the State law has been frequently before this court, and has been the subject of radical difference among the judges composing the court, and has resulted in much confusion in the decisions of this tribunal. In the case of Leach v. State, 36 Texas Crim. Rep., 248, 36 S. W. Rep., 471, it was held that under our Constitution, art. 5, sec. 1, declaring that the “judicial power of this State shall be vested in certain named courts and in such others as may be provided by law,” the Legislature can not give a municipal court created as an incident to a municipal corporation, jurisdiction, concurrent with a State court over violations of State laws. Our Supreme Court, however, in an elaborate opinion by Judge Brown in the case of Harris County v. Stewart, 91 Texas, 133, ruled otherwise. It is in that case in terms held that, “The Legislature has power, under the Constitution, to confer upon a city recorder, the jurisdiction of a justice of the peace over offenses committed against the laws of the State; and the court refers as authority for this holding to the following authorities: Constitution, art. 5, Amendment 1891; Code of Criminal Procedure, arts. 98, 929; Ex parte Ginnochio, 30 Texas Crim. App., 584; Ex parte Towles, 48 Texas, 413; Gibson v. Templeton, 62 Texas, 565; Blessing v. City of Galveston, 42 Texas, 641; Johnson v. Hanscom, 90 Texas, 321; State v. Helefrid, 2 Nott & McCord, 233; Nugent v. State, 18 Ala., 521; Waldo v. Wallace, 12 Ind., 569; Gulick v. New, 14 Ind., 93; Gray v. State, 2 Harr (Del.), 76; Burch v. Hardwicke, 30 Gratt. (Va.), 24; Hutchins v. Scott, 4 Halsted (N. J.), 218.

In the later case of Ex parte Wilbarger, 41 Texas Crim. Rep., 514, the rule theretofore announced in Ex parte Leach seems practically to have been overruled. It was in Ex parte Wilbarger in effect held that under the amendment of 1891 expressly providing that, “The Legislature" may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof and and may conform the jurisdiction of the district and other inferior courts thereto,” the Legislature had complete authority to create other courts than those enumerated in the Constitution, and prescribe their jurisdiction. The conclusion reached in that case and the rule therein established has since been the settled holding of this court. Ex parte Hart, 41 Texas Crim. Rep., 581. While, as will be noticed, by an examination of the two last named cases there is not entire harmony in the reasoning in the opinions, the conclusion reached by the majority of the court is substantially the same. My own view is that under the amendment to our Constitution adopted in 1891 in terms authorizing the Legislature to “establish such other courts as it may deem necessary,” our Legislature is given plenary power to establish such courts as the public needs in their judgment require, and that whether they shall or may be called or determined to be State courts or corporation courts can make no difference, and that within the limits of their granted authority they may try offenses against State or municipal law or both. This is, as we believe, in accordance with the decision in Harris County v. Stewart, supra, the reasoning of which case to our minds is unanswerable. We, therefore, hold the court issuing the warrant in this case under which relator is held exists legally and had authority to issue such warrant. We have in reaching this conclusion not found it necessary to consider whether such court might not be upheld under the provisions of the Acts of the Twenty-sixth Legislature.

3. It is next contended that the Act of the Legislature granting the city of Texarkana a charter and limiting the number of saloons or retail liquor dealers’ business to not more than two in any half block of said city, is void for "the following reasons: (1) Because the subject of the number of retail liquor dealers’ establishments to be conducted in a city is a distinct object and is not expressed in the caption or title of said act. (2) The Legislature can not by special act incorporate a city and in the same act limit the number of -retail liquor dealers’ establishment, to be conducted in any one half block of the city so incorporated, because the Constitution prohibits bills containing more than one subject. (3) Because said act discriminates between citizens of the same class. (4) Because said act denies to one citizen a public privilege which it grants to another of the same class. (5) Because said act is in conflict with article 16, section 20, of the Constitution of the State in that it prohibits the sale of intoxicating liquor without first submitting the question to a vote of the people. The views heretofore expressed, if correct, are decisive against the relator as to the matter of the supposed unconstitutionality of the act in question because of the alleged violation of the Constitution in respect to the inclusion of more than one subject in the act in question, and need not be further discussed. We think there can be no doubt that the Legislature may in the same act incorporate a city and create and provide for a court to try offenses therein committed, and thereby guard and protect its people, and in so doing not violate the constitutional inhibition against bills containing more than one subject. The creation and provision for such court is so intimately connected with, and subsidiary to the main subject of legislation, and the object sought to be accomplished as to be fairly included within the same general subject. Joliff v. State, 53 Texas Crim. Rep., 61, 109 S. W. Rep., 176; Albricht v. State, 8 Texas Crim. App., 216; Floeck v. State, 34 Texas Crim. Rep., 314; Johnson v. Martin-Wise Co., 75 Texas, 33. Nor do we believe that the portion of the charter in question limiting the number of saloons to be conducted in any one half block is unconstitutional in that it is in conflict with article 16, section 20, of our Constitution in that it prohibits the sale of intoxicating liquors without first submitting the question to a vote of the people. We held in the case of Williams v. State, 52 Texas Crim. Rep., 371, 107 S. W. Rep., 1121, that this article of the Constitution does not prohibit the establishment of saloon limits within the city of Dallas. The establishment of such saloon limits was held in no sense to be a prohibition law, but was a bona fide regulation of the sale of whisky. Mr. Justice Bookhout, in Cohen v. Rice, 101 S. W., 1052, in considering a similar question, said, “The ordinance does not prohibit the sale of intoxicating liquors in the city of Marshall, but regulates the sale of the same in the city by confining the sale to the business portion of the city.” It was said in the case of Garonzik v. State, 50 Texas Crim. Rep., 533, 100 S. W., 374, that the designation of locality where the sale of intoxicating liquors is inhibited, is not prohibition, but a mere regulation of the sale.” Such also was the holding, in substance, of this court in Ex parte Levine, 46 Texas Crim. Rep., 364. If, therefore, the exclusion of saloons from large parts of a municipality at all can be sustained as a mere regulation of the liquor traffic, it would seem to follow of necessity, by analogy, that for the public good the number of saloons to be operated in any given territory might also be controlled.

4. Among the provisions contained in the special charter of Texarkana is the following: “Saloons: Power to close drinking saloons, dram shops and other public places where intoxicating liquors are sold or given away, and to close any theater or variety show when necessary or expedient; to make and enforce all needful regulations for saloons, dram shops and other public places where intoxicating liquors are sold or given away.” It is also provided in connection with this same subject, as follows: “Provided, however, that at any one time not more than two saloons or retail liquor dealers’ shall ever be licensed or permitted to conduct a business in any one half block, and by half block as herein used, shall be held to mean that portion of a block between an alley and a street, and provided, further, that when two licenses shall have been issued to a saloon or retail liquor dealer in any one half block, that no other saloon license or retail liquor dealers’ license for any one such half block shall thereafter issue for the period- of time or any part of the period of time thereby covered by such two licenses issued; and provided, further, that in the event there should be at any one time more than two applications to the city collector for the issuance of saloon or retail liquor dealers’ license for any particular half block, as herein defined, it shall be the duty of the tax collector aforesaid to refer all such applications to the city council of such city, which shall immediately determine which two said applications shall be accepted, which shall be determined upon question or point of priority of making said applications, and for any other good and sufficient reason, and the action of said city council shall be final, and provided the city council may refuse to issue license to a nonresident of the State.” It can not, we think, be doubted that if these provisions are valid, that relator must be remanded. We think it well within the power of the Legislature to impose such reasonable regulations on the conducting and licensing of saloons as in their judgment the public good and the general welfare of the community required. This is not, as we believe, to prohibit the sale of intoxicating liquors in such city, but for the general good to regulate such sale by placing reasonable and no doubt needed regulations as to the conditions and limitations under which it should be sold.

It seems to be the doctrine everywhere that the granting of license is not a matter of right, but rests in the sound discretion of the tribunal to which such grant is committed. The rule is thus stated in that invaluable work, 23 Cyclopedia of Law and Procedure, p. 135: “A few decisions hold that if a person who desires a liquor license brings himself within the terms of the law, by complying with all the statutory preliminaries and possessing the requisite moral and other qualifications, he is entitled, as a matter of law, to be licensed, and the license can not be withheld from him. But in most jurisdictions the doctrine is now well settled that the court or board charged with the duty of issuing licenses is invested with a sound judicial discretion, to be exercised in view of all the facts and circumstances of each particular case, as to granting or refusing the license applied for.” Again, it is said: “But it is no abuse of discretion to refuse a license on the ground that the place where it is proposed to open the saloon or bar is not suitable for that purpose, or that it has become a place of bad repute and a resort for disorderly persons, orv where, as between petitioners and remonstrants, there is an overwhelming majority against the grant of the license.” The author also in respect to the matter of control or review of the exercise of discretion of such board, says: “Insofar as the decision of the licensing authority or board, upon the grant or refusal of a particular application, is governed by the exercise of that legal discretion with which the law invests them, it is not subject to be controlled or reviewed by the courts, and will not be interfered with except where arbitrary action on their part, or a plain abuse of discretion, is made to appear. Hr. Black, section 171, in treating the same subject, says: “The discretion to be exercised in granting or refusing licenses is a sound judicial discretion, to be determined, in its exercise, by the facts and circumstances of each case. It is not the arbitrary will of the judge; it must rest on reasons. It would be improper to grant a license to any applicant without investigating his qualifications. And it would be equally improper to refuse a license to any applicant from mere prejudice or caprice, or without any reason whatever. The limits of the discretion are marked out by the law, and to exceed them, on one side or the other, is an abuse of power. The true doctrine on this point is stated by the Supreme Court of Pennsylvania, in saying that the discretion is a sound legal discretion, resting on the circumstances of each case, and not on a general opinion as to the propriety or impropriety of granting licenses.” A similar conclusion was reached in the well considered case of State v. Common Council of Northfield, 101 N. W. Rep., 1063, where the Supreme Court of Minnesota used the following language': “As remarked by Judge Flandrau, in St. Paul v. Troyer, 3 Minn., 291, a case involving the construction of charter provisions and an ordinance similar to those in the case at bar, unless the power to refuse is thus conferred, there would be no control or regulation, because, if the authorities were required to license every applicant who complied with a prescribed set of conditions, the authority would be changed from one of regulation' and control to one of taxation—from a power, the judicious exercise of which is essential to the very life of a city, into one entirely at the mercy of the individual citizen. When we speak of a discretion in the city authorities in the exercise of a power, we mean, of course, a legal discretion, and not an arbitrary or uncontrollable sway. From the peculiar democratic character of our municipal institutions, such powers can not become dangerous in the hands of our rulers, except, perhaps, in the granting of such licenses with too much liberality.” This is the rule where a general discretion has been conferred on a board having authority to regulate the issuance of licenses for dram shops. It certainly is much more true in a case where, in the very life ’ of the municipality, as found in the special charter, the Legislature has in terms fixed a mandatory inhibition against more than two saloons existing in any half block. As will be noted from the article of the charter quoted above, it is provided that in the event more than two persons make application for license, that such applications shall be by the tax collector referred to the city council, who shall determine the matter and grant the license, basing their conclusion on priority of filing or other good reasons; and it is also provided that the judgment and conclusion of the city council shall be final. It appears in this case that the application of relator was second in point of time of filing, but the city council was given full and exclusive control of this matter, and the charter in question provides that their conclusion on such matter shall be final. It may be injustice was done relator in the determination of the city council. We do not know and we can not say, but that body is made the arbiter in such matter, and the law declares and provides that their action ends and settles the question and should have that effect, at least under conditions as herein presented.

5. It is contended again that the arrest .is illegal, for that subsequent to the passage of what is known as the Baskin-McG-regor law regulating the sale of liquors at retail and fixing a tax therefor, that no action was taken by the city council of the city of Texarkana in terms fixing and naming and levying a tax ' on such business. The Baskin-MeGregor law in effect provides that counties and cities may levy a tax equal to one' half the State tax. Sometime before the passage of this act the city of Texarkana, then organized under the general law, had passed a general ordinance providing for the levy of an occupation tax equal to one half of the State tax on liquor dealers. In the charter under consideration, it was in terms provided that all existing ordinances in effect at the date of the passage of said charter should be and were continued in force. We think this had the effect to apply the old .ordinances automatically to the new tax as levied by the special charter, and to entitle the city to the levy and collection of one half of the tax on such business due the State as fixed by the Baskin-MeGregor law.

[Motion for rehearing overruled June 9, 1909.]

6. It is again urged that the action of the city council discriminates against relator by refusing to issue to him a license when the evidence shows that they had issued three retail liquor dealers’ licenses in the south half of the same block. That .the council was wholly inconsistent in view of this action is evident, but we think an application of the trite and homely adage that “two wrongs can not make a right” is a sufficient answer to this contention. The fact that the city council have done wrong in one instance, would not authorize relator to enforce a demand not justified under the law.

,-In conclusion, we may say the case was well briefed and well argued on both sides. It is to be regretted that we have not access to many of the authorities cited, and, therefore, have not examined many of the cases cited both by counsel for relator and respondent. We have, however, carefully investigated such of them as we have been able to find, and the views we have expressed represent our best judgment in the case. We believe, finally, that the arrest was warranted by law; that the relator is held under a valid complaint and under a valid ordinance, and, therefore, he should be remanded for further proceedings and according to law.

Relator remanded to custody.