HENDERSON, Judge.
Appellant was convicted in'the recorder’s court of the city of Galveston for violating an ordinance of said city, and fined $25. Said ordinance ivas of a sanitary character, and prohibited the removal of the contents of any privy or water-closet, etc., except between certain hours, with the permission of the health physician, and in accordance with certain prescribed rules. This ordinance was passed by what is termed in the charter the "board of commissioners,” who are in fact the board of aldermen of said city. For failing to pay said fine, appellant was committed to jail. He sued out a writ of habeas corpus before the criminal district judge of Galveston County, who, after hearing the evidence in said case, remanded applicant to the custody of the sheriff until said fine and costs should be paid. From this judgment applicant prosecuted an appeal to this court.
No question has been made as to the regularity of the proceedings which led up to and included the conviction; but appellant contends that said conviction was null and void, because the charter of the city of Galveston passed by the Twenty-seventh Legislature, and approved April 19, 1901, provides that the board of aldermen of the city of Galveston, called "board of commissioners,” shall consist of five commissioners, three of whom are required to be appointed by the Governor; that, in accordance with said charter provision, the Governor did appoint said three officers, one of whom was named as the president of said board of commissioners and that these three constituted a majority of the board of aldermen of said city; that said board passed the ordinance in question, under which appellant was tried and convicted. The insistence is that the Governor has no authority, 'under the Constitution of this State, to appoint the members of said board, and that the charter provision authorizing him to do so is null and void, and that said ordinance, and all proceedings thereunder, are without authority of law. As the case turns upon the provisions of the charter with reference to the selection of the board of commissioners, who stand for the aldermen of said city, the provisions of the charter bearing on this subject will be quoted substantially: Section 5 provides: "There shall be appointed by the Governor of the State, as soon as possible after the passage of this act, three commissioners,, one of whom he shall select and designate as president of the board of commissioners provided for herein, and within ten days after the passage of this act, it shall be the duty of the Commissioners Court of Galveston County to order an election to be held in the city of Galveston, at which election the qualified voters of the city of Galveston shall elect two other commissioners, who, together with the three commissioners appointed by the Governor, shall constitute the board of commissioners of the city of Galveston.
In ordering such election, the commissioners court shall determine the time and the places in the city of Galveston for holding such election; and the manner of holding the same shall be governed by the laws of the State regulating general elections. Each of said five commissioners shall be over the age of twenty-five years, citizens of the United States, and for five years immediately preceding their appointment or election, residents of the city of Galveston. Each of said five commissioners shall hold office for two years from and after the date of his qualification, and until his successor shall have been duly appointed or elected, as the case may be, and duly qualified. Said board of commissioners shall constitute the municipal government of the city of Galveston.” Section 9 provides for the removal of appointees; authorizing the Governor to remove the commissioners appointed bjr him, but withholding from him the power to remove others. Section 10 provides for filling vacancies in the board occurring during the term of office, giving the power to the Governor, to fill vacancies occasioned by the resignation, etc., of his appointees; but others are to be filled in the same manner as State or district offices. Section 25 provides that the tenure of the board of commissioners shall be two years, and until their successors qualify, and that vacancies in said board are to be filled as provided in section 10. Certain sections make the president the executive officer of the city, and give him the right to vote on all questions which may arise. Other sections constitute the president and board of commissioners, the successors of the mayor and board of aider-men of the city of Galveston, and fix their salaries; and said board is given plenary powers, such as are usual with reference to the government of said city, authorizing them to pass all ordinances, etc.
We understand the respondent to contend, first, that the matter of the appointment of said members of the board of commissioners by the Governor can only be inquired into by quo warranto, and that this question can not be raised collaterally; second, that-the Legislature is omnipotent in the creation of municipal corporations, unless restrained by the Constitution, and that there is nothing i'n the Constitution prohibiting the Legislature from granting to the Governor the power to appoint any or all of the members of the board of commissioners; third, that the appointment of the president of the board and two of the members was temporary, and, even if it be conceded that the Governor could not appoint the mayor and board of aldermen as permanent officers, it was competent to make a temporary appointment of such officers. We would observe, in this connection, that the appointments here authorized by the charter were not temporary in their character, but permanent, and that, when 'the time of the appointees of the Governor expired, their successors are to be appointed by the Governor. We understand this to be the plain reading of the charter provisions.
Is it necessary, in order to question the legality or constitutionality of an ordinance passed by the board of commissioners, to resort to a
quo warranto proceeding? Our statute (Rev. Stats., art 4343) provides for writs of quo warranto as against one who usurps, intrudes into, or unlawfully holds or executes any office or franchise. This is in consonance with the general nature of the writ of quo warranto; that is, it furnishes a reined' or mode to try the right to an office or franchise. High on Ex. Rem., secs. 591 to 621 inclusive. In State ex rel. John H. Spaulding v. Smith, 55 Texas 447, it seems to have been held, where the question involved was simply the right to collect taxes, and not a contest for the office, that proceedings by quo warranto was not the proper remedy. In this particular case there is no contest pending for the office of alderman.
Nor is
this a suit to forfeit the entire charter of the city of Galveston because it is unconstitutional, nor because of nonuse or abuse of its franchise. For aught that appears, it is conceded that all the provisions of said charter are in accordance with law, except the appointment of the three commissioners. It would not necessarily follow that because the appointment of some officer of a corporation was void, being 'unconstitutional, the whole charter must necessarily fail. In the city of El Paso v. Ruckman, 92 Texas, 86, it was held that the validity of the organization of the school board of the city of El Paso could only be inquired into by quo warranto. In that case it was held that the election was irregular, merely, and for those reasons might have been properly set aside in a proceeding instituted for that purpose. But we do not know that it has ever been held, where a pretended officer is acting by virtue of a commission which is absolutely void, his acts can not be questioned in a collateral proceeding. If such should be the case, the result would follow that if one assumed to act as judge, and undertook to try a person, although his commission be absolutely void, a person so arraigned and tried would be driven to some procedure to stay the trial, in order to enable him to resort to a writ of quo warranto to question the authority of the officer trying him. In such case he would be compelled to seek the aid of the district attorney, who is authorized to prosecute writs of quo warranto, in order to stay the hand of that same district attorney in the prosecution. As we understand the rule as applicable both to civil and criminal matters, if a judgment is absolutely void, either because there is no constitutional tribunal, or because such tribunal has no jurisdiction of the subject matter, its action can be questioned whenever and wherever it is invoked, either collaterally or otherwise. This is especially the rule in this court. See Ex parte Cross, 44 Texas Crim. Rep., 376—a recent case where an ordinance was held void because of the invalidity of the corporation. See, also, Ex parte Timmins, 32 Texas Crim. Rep., 117. In People ex rel. v. Whitcomb, 55 Ill., 172, it was said: “The proceeding in quo warranto will not lie to determine the constitutionality of a municipal law; but the proper mode to challenge such law would be to interpose an objection as a defense to the enforcement of the ordinance.” And that rule, it occurs to us, accords in principle-with the proper practice. And
see High on Ex. Rem., 618, and Stultz v. State, 65 Ind., 492. We accordingly hold that appellant was not required to resort to the writ of quo warranto, but he could question the constitutionality of the ordinance in his defense when he was prosecuted thereunder. If the ordinance was merely irregular, he could not set it aside; but, if it is void (that is, if we should hold that the appointment by the Governor of the mayor and two of the board of aldermen was unconstitutional, and that this rendered the ordinance, the passage of which was participated in by them, void, as being against the Constitution of the State), then he can interpose the defense on the trial, and can avail himself of it here, and he would not be compelled to await the action of those who might be prosecuting him, in order to avail himself of the writ of quo waranto.
In discussing the constitutionality of the appointment of the mayor and two of the aldermen by the Governor, it may be conceded: First, that the burden is on relator to show, by the express terms of the Constitution, or by strong implication, that the exercise of the power of appointment is against the Constitution. What we mean by "strong implication” is: "When the validity of such legislation is brought in question, it is not necessary to show that it falls appropriately within some express written prohibition contained in the Constitution. The implied restrictions of the Constitution upon legislative power may be as effectual for its condemnation as written words, and such restrictions may be found either in the language employed, or in the evident purpose which was in view, and the circumstances and historical events which led to the enactment of the particular provision as a part of the organic law.” State of Indiana ex rel. v. Fox (Ind. Sup.), 63 N. E. Rep., 19, 56 Law. Rep. Ann., 893, and authorities there cited. Second. The wisdom of the law is not a question; nor does it become the judiciary to try the issue as to whether the same appears expedient, politic, or necessary, these matters being exclusively within the province of the Legislature.
The Constitution of this State has never been construed as to the question here presented, but the subject has been thoroughly discussed in other jurisdictions—particularly in New York, Michigan, Indiana and Tennessee, and in some other States. New York, as was observed by Mr. Coolev, is the only State of the original thirteen colonies in which the mayor was appointed by the Governor. But this was changed at an early date, after the Revolution, and the Constitution in that State was made expressly and strongfy prohibitive as to the appointment by the Governor or Legislature of purely municipal officers. The discussion in that State, as in some others, turned upon the proposition as to whether the appointive officers were municipal or state officers; the decisions holding that certain classes of officers, as health, quarantine, and peace officers, were State, and not purely municipal, officers, and that it was not an invasion of local self government to appoint such officers through the Governor or Legislature. State ex rel. Wood v.
Draper, 15 N. Y., 532; Rathbone v. Wirth, 150 N. Y., 459, 45 N. E. Rep., 15, 34 Law. Rep. Ann., 408. And to the same effect, see Board of Health v. Heister, 37 N. Y., 661; Davock et al. v. Chas.
W.
Moore (Mich.), 63 N. W. Rep., 424, 28 Law. Rep. Ann., 783. No question is or can be made here that the officers appointed were not municipal officers. Indeed, they were both executive and legislative officers of the city of Galveston; and the Legislature, in making these appointive, went further than the Legislature of any State ever attempted to go before. v
In Michigan and Indiana the question has been discussed as applied to their Constitutions, both of which provide, in substance, “that all officers whose appointments are not otherwise provided for in their Constitutions, shall be elected or appointed in such manner as now is, or hereafter may be, prescribed by law.” The decisions appear to be predicated in the proposition as to whether the appointing power, under said Constitutions, referred to the power of the Legislature or Governor, to appoint, or to the particular localities, and it was held that it referred to the localities. See People v. Hurlbut, 24 Mich., 44, 9 Am. Rep., 103; Allor v. Wayne Co. Auditors, 43 Mich., 76, 4 N. W. Rep., 492; Davock v. Moore (Mich), 63 N. W. 424, 28 Law. Rep. Ann., 783; Geake v.
Fox
(Ind. Sup.), 63 N. E. Rep., 19, 56 Law. Rep. Ann., 893; State ex rel. Holt v. Denny, Mayor, 118 Ind., 449, 21 N. E. Rep., 274, 4 Law. Rep. Ann., 65. And to the same effect, see Luehrman v. Taxing Dist. of Tenn., 2 Lea, 425. This last case followed People v. Hurlbut, supra, in holding that the Governor was authorized to make temporary appointments of municipal officers. But the reasoning in all of the cases—those referred to as well as all others—to. which our attention has been called, except State of Nevada v. Swift, 11 Nev., 134, strongly supports the. proposition that, even without some express constitutional provision, neither the Legislature nor the Governor has tire power to appoint the permanent officers of a municipality. In the eases cited it occurs to us that the real effect of the decisions was to establish the doctrine that, in the absence of a grant of authority in the Constitution authorizing the appointment of such local officers by the Legislature or the Governor, this power was denied by implication arising from the history and traditions which time out of mind had conferred local self-government on municipalities. This question is presented so forcibly by the distinguished judges who decided
the
Hurlbut case, and in language so much
better
than we can use, that we here present excerpts from the same, both on account of the historical facts recited, and because of the eloquent language in which the opinions are couched, and, moreover, because, in our judgment, it will afford good reading to those who would ascertain the underlying principles which uphold our republican institutions, and also serve to bar the way of those who desire to overthrow the principles of local self-government, and to establish in lieu thereof a strong" central power.
Chief Justice Campbell uses this language: “Incorporated cities and boroughs have always, both in England and in America, been self-governing communities, within such scope of jurisdiction as their charters vest in the corporate body. According to the doctrine of the common law, a corporation aggregate for municipal purposes is nothing more nor less than ‘investing the people of the place with the local government thereof/ Salk. 193. In the absence of any provision in the charter creating a representative common council, the whole body of freemen make the common council, and act for the corporation at their meetings. Comyn Dig., Franchises (F), 25. It is agreed by historians that originally all boroughs acted in popular assembly, and that the select common council was an innovation, which may have been of convenience, or by encroachment. In modern times cities have generally acted in ordinary matters by such a select body. But townships still act by vote at town meetings, and for many purposes connected with taxation the people of cities usualty have the same privilege. But whether acting directly or by their representatives, the corporation is, in law, the community, and its acts are their acts, and its officers their officers. The doctrine is elementary that all corporation officers must derive office from the corporation. Kyd, Corp., chap. 3, sec. 8. This has been, from time immemorial, settled law. Bjr articles 15 and 16 of the Great Charter, it was stipulated that the liberties and free customs of London, and all other cities, boroughs, towns and ports, should be preserved. Those liberties were all connected with and dependent upon the right to choose their own officers and regulate their own local concerns. The sole motive of the infamous proceedings of Charles II to procure the forfeiture of these corporate charters was to enable him to interfere in the selection of corporate officers. When he had secured a decision against the city of London, adjudging the charter forfeited on trumped-up charges of sedition and illegal tolls, he offered, through Lord Keeper Korth, to respite the judgment if the city could give him such right of control over its selection of officers as to enable him to exclude persons not accejrtable to the crown. 8 State Trials, 1281; Lives of Lord Chancellors, vol. 4, pp. 318, 319. These interferences with both the English and American colonial charters were always regarded as legal outrages, and contrary to all constitutional principles, and one of the first acts of Parliament, after the revolution of 1688, was passed to prevent any future action of that kind. Our Constitution can not be understood or carried out at all, except on the theory of local self-government, and the intention to preserve it is quite apparent. In every case where provision is made by the Constitution itself for local officers, they are selected by local action. All counties, towns and school districts are made to depend upon it. All elections are required to be in local divisions where electors' reside. Cities are represented in the board of supervisors, and it is quite possible for their members to outnumber the rest. It certainly can not be that the State can control those bodies by sending its own agents there, and it can not be
possible that it was contemplated that any members of that board should be selected by a different mode of 'election or appointment from the rest. Cities may become counties, and surely there can be no county without popular institutions. Cities have been judicially declared to come within the denomination of Townships/ so far as to be entitled to library money; and, unless they are made to include school districts, they need not be compelled to have free schools. Ho one would venture to assume that the Constitution was designed to leave them in such a position. It is impossible to read that document without finding the plainest evidence that every part of the State is to be under some system of localized authority emanating from the people. This is no mere political theory, but appears in the Constitution as the foundation of all our polity. There is no middle ground. A city has no constitutional safeguards for its people, or it has the right to have all its officers appointed at home. Unless this power is exclusive, the State may manage all city affairs by its own functionaries. The only reasonable meaning of the constitutional clause in question is that, when the Legislature has designated the time and manner of appointment or election, the local authority shall fill the offices as so ordained.”
We quote from Judge Christiancy as follows: “But when we recur to the history of the country, and consider the nature of our institutions, and of the government provided for by this Constitution, the vital importance which in all the States has so long been attached to local municipal governments by the people of such localities, and their rights of self-government, as well as the general sentiment of hostility to everything in the nature of control by a distant central power in the mere administration of such local affairs, and ask ourselves the question whether it was probably the intention of the convention in framing, or the people in adopting, the Constitution, to vest in the Legislature the appointment of all local officers, or to authorize them to vest it elsewhere than in some of the authorities of such municipalities, and to be exercised without the consent and even in defiance of the wishes of the proper officers, who would be accountable rather to the central power than to the people over whose interests they are to preside—thus depriving the people of such localities of the most essential benefits of self-government enjoyed by other political divisions of the State—when we take all these matters into consideration the conclusion becomes very strong that nothing of this kind could have been intended by the provision. And this conviction becomes stronger when we consider the fact that this Constitution went far in advance of the old one in giving power to the people which had formerly been exercised by the executive, and in vesting or authorizing the Legislature to vest in municipal organizations a further power of local legislation than had before been given to them. We can not, therefore, suppose it was intended to deprive cities and villages of the like benefit of the principle of local self-government enjoyed by other political divisions of the State. The convention must be supposed to have recognized to some extent existing
things, and to have had reference to cities and villages with substantially such organizations or upon such principles of self-government as had generally become customary. And in this view, when they provide that officers in cities and villages should be elected or appointed, we must understand that they referred to appointments of such nature (though not necessarily of the same officers) as had been sometimes, at least, made by the common councils of cities, or by village authorities, as has been quite generally the case with marshals, collectors, city attorneys, treasurers, etc., and such others as the Legislature might see fit to vest in such council or some other local boards, and resting upon similar principles. While, therefore, I have no doubt of the power of the Legislature to abolish or. discontinue any of the separate boards previously existing in the city, and consolidate all the powers and duties in this new board, which I think was the main purpose of this act, and to add all the new duties which have been imposed upon them, I concur in the opinions of the chief justice and my brother Cooley that the Legislature had no power to make the appointment of the members of that board, as permanent officers for the full term, or the specific portions of such terms provided by this act for the respective members of the board. And to their full and exhaustive discussion of this point I refer without repeating it.”
Judge Cooley, noted as a great constitutional lawyer, and the author of the work on that subject, states the question thus: “Whether local self-government in this State is or is not a mere privilege, conceded by the Legislature in its discretion, and which may be withdrawn at any time at pleasure ? I state the question thus broadly because, notwithstanding the able arguments made in this case, and after mature deliberation, I can conceive of no argument in support of the legislative authority which will stop short of this plenary and sovereign right.”. He then traces the history of township or municipal corporations in some of the American colonies, and shows clearly that these formed the nucleus around which the patriots rallied during the American Revolution, and that they subsequently formed the basis of local self-government in the republic, which neither king nor legislature were permitted to overthrow or destroy.” He then proceeds.to discuss the question as follows: “In view of these historical facts and of these great principles, the question recurs whether our State Constitution can be so construed as to confer upon the Legislature the power to appoint for the municipalities the officers who are to manage the property, interests, and rights in which their own people alone are concerned. If it can be, it involves these consequences: As there is no provision requiring the legislative interference to be upon any general system, it can and may be partial and purely arbitrary. As there is nothing requiring the persons appointed to be citizens of the locality, they can and may be sent in from abroad, and it is not a remote possibility that self-government of towns may make way for a government by such influences as can force themselves upon the legislative notice at Lansing. As the mu
nieipal corporation will have no control, except such as the State may voluntarily give it, as regards the taxes to be levied, the buildings to be constructed, the pavements to be laid and the conveniences to be supplied, it is inevitable that parties, from mere personal considerations, shall seek the offices, and endeavor to secure from the appointing body, whose members in general are not to feel the burden, a compensation such as would not be awarded by the people, who must bear it, though the chief tie binding them to the interests of the people governed might be the salaries paid, on the one side, and drawn, on the other. As the Legislature could not be compelled to regard the local political sentiment in their choice, and would in fact be most likely to interfere when that sentiment was adverse to their own, the government of cities might be taken to itself by the party for the time being in power, and municipal governments might easily and naturally become the spoils of party, as State and National offices unfortunately are now. All these things are not only possible, but entirely within tlie range of probability, if the positions assumed on behalf of the State are tenable. It may be said that these would be mere abuses of power, such as may creep in under any system of constitutional freedom, but what is constitutional freedom? Has the administration of equal laws by magistrates freely chosen no necessary place in it ? Constitutional freedom certainly does not consist in exemption from governmental interference in the citizen’s private affairs; in his being unmolested in his family, suffered to buy, sell and enjoy property, and generally to seek happiness in his own way. All this might be permitted by the most arbitrary ruler, even though he allowed his subjects no degree of political libertjr. The government of an oligarchy may be as just, as regardful of private rights, and as little burdensome as any other; but, if it were sought to establish such a government oyer our cities by law, it would hardly do to call upon a protesting people to show wliere in the Constitution the power to establish it was prohibited. It would be necessary, on the -other hand, to point out to them where and by what unguarded words the power had been conferred. Some things are too plain to be written. If this charter of State government which we call a 'constitution’ were all there was of constitutional command; if the usages, the customs, the maxims that have sprung from the habits of life, modes of thought, methods of trying facts by the neighborhood, and mutual responsibility, in neighborhood interests; the precepts which have come from the revolutions which overturned tyrannies; the sentiments of manly independence and self-control which impelled our ancestors to summon the local community to redress local evils, instead of relying upon king or legis-. látureat a distance to do so—if a recognition of all these were to be stricken from the body of our constitutional law, a lifeless skeleton might remain; but the living spirit, that which gives it force and attraction, which makes it valuable and draws to it the affections of the people; that which distinguishes it from the numberless constitutions, so called, which in Europe have been set up and thfown down within
the last hundred years, many of which, in their expressions, have seemed equally fair and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone can give—this living and breathing spirit, which supplies the interpretation of the words of the written charter, would be utterly lost and gone. Mr. Justice Story has well shown that constitutional freedom means something more than liberty permitted. It consists in the civil and political rights which are absolutely guaranteed, assured and guarded; in one’s liberties as a man and a citizen; his right to vote; his right to hold office; his right to worship God according to the dictates of his own conscience; his equality ivith all others who are his fellow citizens—all these guarded and protected, and not held at the mercy and discretion of any one man or of any popular majority. Story, Miscellaneous Writings, 620. If these are not now the absolute rights of the people of Michigan, they may be allowed more liberty of action and more privileges, but they are little nearer to constitutional freedom than Europe was when an imperial city sent out consuls to govern it. The men who framed our institutions have not so understood the facts. With them it has been an axiom that our system' was one of checks and balances; that each department of the government was a check upon the others, and each grade of government upon the rest; and they have never questioned or doubted that the corporators in each municipality were exercising their franchises under the protection of certain fundamental principles which no power in the State could override or disregard. The State may mold local institutions according to its views of policy or expediency, but local government is matter of absolute right, and the State can not take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty, where the State not only shaped its government, but, at discretion, sent in its own agents to administer it, or to call that . system one of constitutional freedom under which it should be equally admissible to allow the people full control in their local affairs, or no control at all. What I say here is with the utmost respect and deference to the legislative department, even though the task I am called upon to perform is to give reasons why a blow aimed at the foundation of our structure of liberty should be warded oif. Nevertheless, when the State reaches out and draws to itself and appropriates the powers which from time immemorial have been locally possessed and exercised, and introduces into its legislation the centralizing ideas of continental Europe, under which despotism, whether of monarch or commune, alone has flourished, we seem forced back upon and compelled to take up and defend the plainest and most primary axioms of free government, as if even in Anglican liberty, which has been gained step by step, through extorted charters and bills of rights, the punishment of kings and the overthrow of dynasties, nothing was settled and nothing established.” People v. Hurlbut, 24 Mich., 104-108; 9 Am. Rep., 103.
We might pursue the subject further, and quote from the exhaustive opinion of Judge Hadley in Geake v. Fox, supra, and from the Reports
in'other States. But the views quoted, we apprehend, are sufficient, and will serve to indicate the reasoning upon which great judges who have considered this question base their views, and that they regard the attempt on the part of the Legislature to make this innovation, giving the appointing power of municipal officers to the Legislature and Governor, as unwarranted, in the face of our American system of municipal government, and as destructive of the rights of the people in municipalities to select their own officers.
In State ex rel. v. Moores (Neb.), 76 N. W. Rep., 175, 41 Law. Rep. Ann., 624, there was nothing in the Constitution of Nebraska especially restrictive of the authority of the Legislature to make local municipal officers appointive by the Governor, and so the question was here fully and fairly made. The distinguished jurists who wrote that decision were not content to rest the case on what had been said on the subject by other courts, but went into the question again; and, both on principles and authority, it was determined that the appointment and selection of municipal officers by any other than the local authorities was subversive of the principles of local self-government, which belonged to the people of the State, and inheres in every part of the Constitution. A perusal of these opinions is like sounding a new note on the old Liberty Bell, and must inevitably thrill the heart of every patriotic American who loves the free institutions of our country.
Now let us look to our own Constitution on the subject. Bill of Rights, section 1, provides:
“Texas is a free and independent State, subject only to the Constitution of the United States; and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government unimpaired to all the States.
“Sec. 2. All political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government,” etc.
Article 2 divides the powers of government into three distinct departments—the legislative, executive and judicial—and the powers thereof are reserved to each department, independent of the others. These powers are defined in subsquent articles. Article 6 relates to suffrage. Section 2 thereof prescribes who are suffragans in the State. Section 3 prescribes the voters in towns and cities, and uses this language: “All qualified voters of the State as herein described, who shall have resided for six months immediately preceding an election within the limits of any city or corporate town, shall have the right to vote for mayor and all other elective officers; but in all elections to determine the expenditure of money or assumption of debt, only those shall be qualified to vote who pay taxes on property in said city or incorporated town,” etc. Article 11 relates to municipal corporations. Section 4 thereof provides: “Cities and towns having a population of ten thousand inhabitants or less, may be chartered alone by general law,” etc. Section 5:
“Cities having more than ten thousand inhabitants may have their charters granted or amended by special act of the Legislature,” and then provides for taxation. Section 9 provides that the property of counties, cities and towns, owned and held only for public purposes, such as public buildings, etc., shall be exempt from forced sale and taxation, etc. Section 10 authorizes the Legislature to constitute any city or town a separate and independent school district.
Granting, as was said, that the Legislature is omnipotent unless restrained by some express provision of the Constitution, or some clearly implied restriction, yet it occurs to us that we not only have a strong implied inhibition against the appointment of local municipal officers by the Governor, but our Constitution furnishes express prohibition as against this authority. In State v. McAlister, 88 Texas, 284, it was said that municipal governments had existed before the formation of the Constitution, and the well known and common method of city government was recognized as pre-existent, ft was further said “that a purpose to destroy a system of municipal government so common in the State will not be attributed to the convention that framed the Constitution unless the language used is so certain as to compel such a construction by the courts.” This, as we have seen, is in consonance with the views expressed by Judge Cooley and other jurists. The fact that a system of municipal government was long in vogue prior to the enactment of the Constitution, and that under this system, from time immemorial, local self-government was recognized, and the power of the suffragans in cities to. elect their own municipal officers was conceded, and that nowhere and at no time had the power ever been claimed on the part of the Legislature to interfere by authorizing the Governor to appoint local municipal officers, must afford strong evidence of an existing condition which would indicate that there was no purpose on the part of those who framed our organic law to destroy a system of municipal government which had always heretofore been recognized. We do not understand that the Constitution grants all power which is not expressly reserved to the legislative body of the government. This is reserved to the people. Only the lawmaking power belongs to the Legislature, and this must be in accordance with the Constitution and with the principles of local self-government reserved to the people of the State, because the Constitution says that all political power is inherent in the people, not in the Legislature, and the right of local self-government is reserved to the State. Local self-government is not the mere whim and caprice of the legislative department, nor does it appertain to any distinctive locality of the State, but to the whole State, and as it had aforetime existed in the State. The principle of local self-government is applicable to every organized portion of the State; and if in the history and traditions of our commonwealth, as well as that of other States, municipalities always exercised the right to select their own local municipal officers, then it would seem to follow that this was a part of the local self-government which remains unimpaired to the
State. The Legislature is the lawmaking power, and to it alone is referred the authority to make laws; but it has no right, under the guise of its lawmaking authority, to overturn the principles of local self-government which have been handed down to us from our fathers. Nor will it be conceded that the right to make laws on the part of the Legislature carries with it the right to appoint to office, either by themselves or through an agent. They undoubtedly have the right to create offices and prescribe their duties, but here their lawmaking functions cease, and the filling of the offices belong to the-locality. As was said by Judge Hadley in Geake v. Fox, supra: “To thus deprive the people of a locality of the right to choose their own immediate officers is to rob them of their freedom, and to defeat one of the great ends for which the government was established.”
However, it is not necessary to rest this decision upon implication, as, in our opinion, the Constitution expressly prohibited the Legislature to either appoint directly, or through the Governor, the local municipal officers of cities and towns, inasmuch as the Constitution expressly confers the power' on the citizen voters of the municipality “to elect the mayor and other elective officers.” It is said that the article in question is merely to define the right of suffrage in cities. By this it would appear to be conceded that, if the suffrage section relating to cities had occurred in article 11, instead of article 6, there would be no question but that the office of mayor, at least, should be elective; that is, the contention is, because this particular clause of the Constitution does not occur under the head of municipal corporations, it has not the same meaning as if it occurred there. We can not agree with this contention. We believe if the clause confers the right on the voter in cities to vote for the mayor and other elective officers, it is effective, no matter where it may have been placed by the Constitution builders. The language of said provision is not dubious. It is clear and unequivocal. The terms used are strong. The language is that the suffragan “shall have the right to vote for mayor and other elective officers.” If this right is conferred, by what power can the Legislature deny it? If they can.not do it directly, can they accomplish it by indirection? To hold that the Constitution makers undertook the task of defining qualifications of voters in cities, and providing that persons possessing the enumerated qualifications, should have the right to vote for mayor and other elective officers, and then to decide without any express provision of the Constitution on the subject, that the Legislature should have the power to withhold this right to vote in cities, would, in our opinion, be a travesty on constitutional construction. Certainly, after the right to vote had been conferred, it would be a strange doctrine that the Legislature, without - some constitutional warrant, would be authorized to limit or deny the right of suffragans to-vote in cities.
It is insisted that the Legislature are potential in the matter of granting charters to cities; they may grant a charter, or abolish it at pleasure. -However, it does not follow that they can grant any sort of
a charter, but only that character of charter which under our system of government pertains to towns and cities. They can not refuse to create the office of mayor or the board of aldermen. People v. Detroit, 29 Mich., 108. And so, if in creating a municipal corporation the Legislature is constrained to create the office of mayor, this office must be elective, because the Legislature can not withhold from the municipal voter the right to vote for mayor, inasmuch as the Constitution confers this right; and it also confers the right upon the suffragans of the municipality to vote for other elective officers. What other elective officers? Evidently those that aforetime the voters in the municipality had been accustomed to select at the ballot box.
But if it be conceded that “other elective officers” means only such as the Legislature may make elective, it would by no means follow that the ordinance in question was a valid ordinance, as is insisted by the respondent here, for we must confess we are not able to exercise that subtilty of distinction which differentiates between the office of mayor in his executive and legislative capacity. The charter itself' gives the mayor not merely the right to vote where there is a tie, but thi right to vote on all occasions, and as it is impossible to determine whether or not there was a tie in the passage of this ordinance, and that the mayor by his vote cut the Gordian knot of legislation by voting for it, we' can not ascertain whether the ordinance was passed by a constitutional vote; that is, by one who had the constitutional right to vote for the ordinance. We think it follows, unquestionably, if the president of the board of commissioners did not have the right to vote on said ordinance, that said ordinance is tainted, and in consequence is null and void. However, we would not be understood as intimating that the board of aldermen, not being named in the Constitution as elective officers, might be appointive, for, as stated, in all of our municipalities these officers had always been elected by the suffragans in the municipal locality, and the expression in the Constitution was but a recognition of existing conditions, and was passed with reference to the status of municipalities theretofore in vogue. Moreover, if we had need of contemporaneous construction as to the elective character of these officers—mayor and board of aldermen—we have but to refer to the incorporation of cities and towns in the general act of 1875 (Laws 1875, p. 113, chap. 100), and acts subsequent thereto, as evidence of the fact that' the Legislature itself regarded these offices as elective, inasmuch as they created them so under the Constitution. We hold that the mayor and board of aldermen of said city were elective officers under and by virtue of our Constitution, and that the majority of these, in the face of our traditions and of the organic law itself, having been appointed by the Governor, any law or ordinance passed by them was,without authority, inasmuch as they were not officers of the municipality, and could not, under our Constitution, be such.
Tn what has been said, we have refrained from any expression of criticism of either the Legislature or the Governor. Undoubtedly, as
is urged by counsel for respondent, they believed that a great emergency had arisen, with which ordinary methods were unable to cope. However, we believe, if the remedy adopted is to stand as a precedent, it would be productive of more serious ills than those which were attempted to be overcome by this species- of legislation. A great writer has said that “we had better bear the ills we have than fly to those we know not of.” And this is true in governments, and perhaps more so than any other of the affairs of life. It may be that here and there, under our American system, cities may be given over to corruption, and lawless elements permitted to run riot over the best interests of the municipality, but this can only be temporary. If we adhere rigidly tc the principles of local self-government, in the end conservatism and enlightenment and American citizenship will triumph. But if this incentive on the part of the better classes for good government is removed, and localities taught to depend on some central p'ówer to take care of them, we may never expect an improvement. On the contrary the seeds of our free institutions, planted by the fathers in the townships and municipalities, will be scattered to the winds, anarchy will run riot throughout the entire body politic, while we look in vain for some strong central power to arrest the destruction of our liberties which have rested hitherto upon that vital and essential principle of the Republic—local self-government by the people.
The judgment is reversed and appellant ordered discharged.
Reversed and appellant discharged.