Ex Parte Lewis , 45 Tex. Crim. 1 ( 1903 )

At the recent Dallas term the opinion of the majority of the court was delivered, and I dissented therefrom, using the following language: "I do not believe that either the letter or the spirit of the Constitution authorizes the opinion of the majority of the court. Charters of cities of over ten thousand inhabitants are within the sound discretion of the Legislature. All municipal charters are mere creatures of the Legislature, and there is no limitation in the Constitution upon the power of the Legislature to create municipal charters; hence I can not hold that there are some things so plainly unconstitutional that they need not be written therein. If I deem it necessary, I will write my views on this question later." And I proceed now to do so.

The Legislature of Texas granted a special charter to the city of Galveston, one provision of which was that said city should have five commissioners, whose duties should be practically the same as aldermen, three of whom were to be appointed by the Governor; and one of the three being designated by him as president of the board of commissioners, having the rights, duties and privileges of mayor. The majority opinion holds that, the people of the city of Galveston having innate and inherent right of local self-government, the act is unconstitutional, and also that the Constitution contains express provision inhibiting the Legislature from passing a law authorizing the Governor to appoint any part of the officers of the city. I shall proceed to discuss the first proposition, and then the second.

As to whether it is good policy for a State, through its Legislature, to appoint the respective officers to govern a city, through an appointment by the Governor under the act of the Legislature, or whether this right should be contained in the charter, and the people alone elect said officers, is a proposition purely political, with which courts have nothing to do. If there is nothing in the Constitution placing a limitation on the power of the Legislature in this respect, the act is constitutional. Speaking in reference to the policy of statutes as to whether or not such statutes are constitutional, Judge Cooley uses this language: "Nor can a court declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the Constitution. It is true, there are some reported cases in which judges have been understood to intimate a doctrine different from what is here asserted; but it will generally be found, on an examination of those cases, that what is said is rather by way of argument and illustration, to show the unreasonableness of putting upon constitutions such a construction as would permit legislation of the objectionable character then in question, and to induce a more cautious and patient examination of the statute with a view to discover in it, if possible, some more just and reasonable legislative intent, than as laying down a rule by which courts would be at liberty to limit, according to their own judgment and sense of justice and propriety, the extent of legislative power in directions in which the Constitution had imposed no restraint." Cooley's Const. Lim., p. 197. "If the Legislature should pass a law, in plain and unequivocal language, within the general scope of their constitutional powers, I know of no authority in this government to pronounce such an act void, merely because, in the opinion of the judicial tribunals, it was contrary to the principles of natural justice; for this would be vesting in the court a latitudinarian authority which might be abused, and would necessarily lead to collisions between the legislative and judicial departments, dangerous to the well-being of society, or at least not in harmony with the structure of our ideas of natural government." Per Rogers, J., in Commonwealth v. McCloskey, 2 Rawle, 374. "All the courts can do with odious statutes is to chasten their hardness by construction. Such is the imperfection of the best human institution, that, mold them as we may, a large discretion must at last be reposed somewhere. The best and in many cases the only security is in the wisdom and integrity of public servants, and their identity with the people. Governments can not be administered without committing powers in trust and confidence." Beebe v. State, 6 Ind. 501, 528, 63 Am. Dec., 391, per Stuart, J.; citing Steamboat Co. v. Foster,5 Ga. 194, 48 Am. Dec., 248; State v. Kruttschnitt, 4 Nev. 178; Walker v. Cincinnati, 21 Ohio St. 14, 8 Am. Rep., 24. "The rule of law upon this subject appears to be that, except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil, but courts can not assume their rights." Cooley's Const. Lim., p. 200. And on page 206, Id., it is said: "It is to be borne in mind, however, that there is a broad difference between the Constitution of the United States and the Constitutions of the States, as regards the powers which may be exercised under them. The government of the United States is one of enumerated powers. The governments of the States are possessed of all the general powers of legislation. When a law of Congress is assailed as void, we look in the national Constitution to see if the grant of specified powers is broad enough to embrace it; but, when a State law is attacked on the same ground, it is presumably valid in any case, and this presumption is a conclusive one, unless in the Constitution of the United States or of the State we are able to discover that it is prohibited. We look in the Constitution of the United States for grants of legislative power, but in the Constitution of the State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the State was vested in its creation. Congress can pass no laws but such as the Constitution authorizes either expressly or by clear implication, while the State Legislature has jurisdiction of all subjects on which its legislation is not prohibited. `The lawmaking power of the State,' it is said in one case, `recognizes no restraints, and is bound by none, except such as are imposed by the Constitution.' That instrument has been aptly termed a legislative act by the people themselves in their sovereign capacity, and is therefore the paramount law. Its object is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power to make laws would be absolute." Cooley's Const. Lim., p. 206. If a State Constitution is an instrument of limitations upon the power of the Legislature, and the Federal Constitution is an instrument of delegated power, as stated, then it follows from the above quotation that the Legislature can create a municipal charter with such clauses, conditions, and provisions as they see fit, provided said Constitution contains no direct inhibition, or some clause of the Federal Constitution is not violated.

The opinion of the majority is predicated in the main upon the case of People v. Hurlbut, 24 Mich. 44, 9 Am. Rep., 103, and about ten pages of the opinion is practically a copy of the opinions of the several judges who wrote in said case, and it is so stated by the majority. However, a careful reading of said opinions in the Hurlbut case will show that they were not attempting to decide the act unconstitutional on the ground that the people had an inherent right of local self-government, but, as Judge Cooley indicates in the above extract, the learned judges were merely fortifying their conclusions that a direct express constitutional provision in the Michigan Constitution inhibited the appointment of local officers for cities; and said case was decided on the bare proposition that the Constitution did prohibit the appointment of officers for a city. While it is true they go further in said opinions, and hold that peace officers might be appointed by the Governor, under authority of the Legislature, to act within said city, on the theory that peace officers were preservators of the peace of the city, still in the opinion of Judge Cooley we find this language: "But I think that, so far as is important to a decision of the case before us, there is an express recognition of the right of local authority by the Constitution. That instrument provides (art. 15, sec. 14) that `judicial officers of cities and villages shall be elected; and all other officers shall be elected or appointed, at such time and in such manner as the Legislature may direct.'" And then he deduces a very logical conclusion from said provision that the Constitution of the State of Michigan expressly inhibits the appointment of the officers under consideration. So, clearly, the case of People v. Hurlbut, supra, can not be justly regarded as authority for the opinion of the majority. To show that the learned writer of said opinion did not mean to uphold the opinion of the majority, I will quote from his work an Constitutional Limitations, as follows: "The creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to corresponding duties, does not deprive the Legislature of the State of that general control over citizens which was before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action whenever it is deemed unwise, impolitic, or unjust, and even abolish them altogether, in the legislative discretion, and substitute those which are different. The rights and franchises of such a corporation, being granted for the purpose of government, can never become such vested rights, as against the State, that they can not be taken away; nor does the charter constitute a contract, in the sense of the constitutional provision which prohibits the obligation of contracts being violated. Restraints on the legislative power of control must be found in the Constitution of the State, or they must rest alone in the legislative discretion." P. 228. "Nevertheless, as the corporators have a special and peculiar interest in the terms and conditions of the charter, in the powers conferred and liabilities imposed, as well as in the general question whether they shall originally be or afterwards remain incorporated at all or not, and as the burdens of municipal government must rest upon their shoulders, and especially as by becoming incorporated they are held, in law, to undertake to discharge the duties the charter imposes, it seems eminently proper that their voice should be heard on the question of their incorporation, and that their decisions should be conclusive, unless, for strong reasons of State policy or local necessity, it should seem important for the State to overrule the opinion of the local majority." P. 139. So I take it that the opinion of the majority of the court is without support in the Hurlbut case, and is in direct conflict with every clause of Judge Cooley's work on Constitutional Limitations.

A municipal charter is a bare creature of the Legislature, and the Legislature can make, abrogate or amend the same as it deems proper. Being a creature of the Legislature the question of local self-government does not enter into, nor can it be considered in passing on, the constitutional right of the Legislature to grant the charter. For, as stated, it can incorporate a city without its consent, place upon it such obligations as the Legislature sees fit, and these obligations can be carried out by any agencies the Legislature prescribes.

The majority opinion of the court contains this language: "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 principle 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." But, unfortunately for the opinion of the majority, the note was fearfully discordant, and so utterly at variance with all constitutional rules of construction that the same court which rendered the opinion expressly overruled the same in Redell v. Moores, 88 N.W. Rep., 243, 55 Law. Rep. Ann., 740 (decided in 1901), where the following language was used: "But in view of those rules we have been led to re-examine the majority opinion in State ex rel. v. Moores, 55 Neb., 480, 76 N.W. Rep., 175, 41 Law. Rep. Ann., 624, which up to this point we have assumed to be the final expressions of this court on the questions therein involved. After a careful examination of that opinion, and with due appreciation of the learning and ability of the members of the court who concur therein, we beg to say it does not commend itself to our judgment. It holds that the provisions of the statute placing the power to appoint members of the board of fire and police commissioners in the hands of the Governor are invalid, not because it is in conflict with any express provision of the State or Federal Constitution, but because it is repugnant to the inherent right of local self-government, which, it is claimed, was retained by the people at the time of the adoption of the organic law. So far as the individual members of society are concerned, in the nature of things, there can be no such thing as an inherent right of local self-government. The right of local self-government is purely a political right, and all political rights, of necessity, have their foundation in human government. For an individual to predicate an inherent right — a right inborn and inbred — on a foundation of human origin, involves a contradiction of terms. So far as a city is concerned, considered in the character of an artificial being, it is a creature of the Legislature. It can have no rights save those bestowed upon it by its creator. As it might have been created lacking some right bestowed upon it, it is in no position to complain should the power that bestowed such right see fit to take it away. In other words, the power to create implies the power to impose upon the creature such limitations as the creator may will, and to modify or even destroy what has been created. The power to create a municipal corporation which is vested in the Legislature implies the power to create it with such limitations as the Legislature may see fit to impose, and to impose such limitations at any stage of its existence. That such power may not always be exercised most wisely is among the possibilities, but that does not warrant this court in wresting it from the hands to which the people, by the fundamental law of the State, have confided it. We shall not attempt to review the authorities bearing on this question. The majority opinion leaves nothing to be said on one side, while the minority opinion is equally exhaustive on the other. To those opinions we must refer the court. The majority opinion, to our minds, introduces a new principle in our system of jurisprudence, and one pregnant with mischievous consequences. We have been taught to regard the State and Federal Constitutions as the sole tests by which the validity of the acts of the Legislature are to be determined. If the majority opinion in that case is to stand as the settled law of the State, then, in addition to such tests, there is another — an elusive something, elastic and uncertain as an unwritten constitution, which may be invoked to defeat the legislative will. We can not believe that such principle should receive the final sanction of this court. The case of Newport v. Horton, 22 R.I. 196, 47 Atl. Rep., 312, 50 Law. Rep. Ann., 330, adds strength to our convictions on this point. In that case, after a critical review of the authorities, the court arrives at the conclusion that the case of State ex rel. v. Moores, 55 Neb., 480, 76 N.W. Rep., 175, 41 Law. Rep. Ann., 624, is unsupported by a single authority." If, as stated, it is true that the case of State v. Moores, supra, "is unsupported by a single authority" — and, after a most searching investigation, I have been unable to find any authority supporting the opinion of the majority opinion of this court — then the opinion of the majority in this case is the only authority extant to-day supporting the position that the unwritten law of the land gives muncipal corporations the right of self-government. Sullivan, J., concurring in the overruling of State v. Moores, supra, and State ex rel. Smyth v. Kennedy, 60 Neb., 300, 83 N.W. Rep., 87, which followed the former, in the case of Redell v. Moores, supra, uses this language: "I said with respect to the decision in the Moores case: `The Moores case lays down the doctrine that whatever the court may conceive to be the spirit of the Constitution is to be regarded as part of the paramount law. While the decision, by recognizing and enforcing the asserted right of local self-government, is conceded to rest upon a sound political principle, it was rendered by a divided bench, and, as a judicial pronouncement, has been much criticised. If it is to be acquiesced in and accepted as a rule of construction, the Constitution of the State is to be fully known only by studying the theory of the judges who are chosen to expound it. It will expand or contract with every fluctuation of the popular will which produces a change in the personnel of the court, and the limitations upon legislative power will be as unknown and unknowable as were the rules of equity in the days when the chancellor's conscience was the law of the land. It is the opinion of the writer that the decision is thoroughly vicious; that it strikes a lethal blow at a co-ordinate branch of the government, and ought to be repudiated and condemned.' Still entertaining these views — still believing that all the governmental powers of municipal corporations come from the Legislature, and are to be found only in living statutes — I could not, of course, do otherwise than give my approval to the conclusion reached by the department." In Newport v. Horton,22 R.I. 196, 47 Atl. Rep., 312, 50 Law Rep. Ann., 337, the following language is used: "The Supreme Court of Michigan has been specially favored with this class of cases. In People ex rel. Drake v. Mahaney, 13 Mich. 481, an act constituting certain persons a police commission for the city of Detroit, embracing the powers conferred in the act before us with others much more extensive, was held to be constitutional. After considering objections not applicable to this case, Judge Cooley took up the objection to the act `on general principles, and especially because violating fundamental principles of our system, that governments exist by the consent of the governed, and that taxation and representation go together.' The court held that the objection was answered by the representation of the people of Detroit in the Legislature which passed the act, and in the election of the Governor who appointed the board. Judge Cooley said: `There is nothing in the maxim that taxation and representation go together, which requires that the body paying the tax shall alone be consulted in its assessment; and, if there were, we should find it violated at every turn in our system. The State Legislature not only has a control in this respect over inferior municipalities, which it exercises by general laws, but it sometimes finds it necessary to interpose its power in special cases to prevent unjust or burdensome taxation, as well as to compel the performance of a clear duty.'" And the opinion proceeds, after reviewing the cases of People v. Hurlbut,24 Mich. 44, 9 Am. Rep., 103; People ex rel. Park Com'rs v. Detroit, 28 Mich. 228, 15 Am. Rep., 202; People ex rel. v. Draper, 15 N.Y. 532; People ex rel. v. Porter, 90 N.Y. 68; Rathbone v. Wirth, 150 N.Y. 459, 45 N.E. Rep., 15, 34 Law. Rep. Ann., 408; People v. Lynch, 51 Cal. 15, 21 Am. Rep., 677; State ex rel. v. Moores, 55 Neb., 480, 76 N.W. Rep., 175, 41 Law. Rep. Ann., 624; and Smyth v. Kennedy (Neb.), 83 N.W. Rep., 87: "These include all the cases relied on by the petitioners in support of the principle that an act of the Legislature establishing a police commission for a city takes away its right of self government implied in the Constitution. In all of them there have been very vigorous and cogent arguments in favor of the protection of that right, with which, in the main, we do not disagree. But it is evident from the points decided that, excepting in Nebraska, they have all involved a purely municipal office, or have turned upon some express prohibition in the Constitution. With the exception stated, not one has denied the general power of the Legislature to assume the control of the local police. In the cases cited, Michigan has affirmed the power. Nebraska has denied it. The uniform decisions in other States, so far as they have come to our notice, have sustained the power." Citing many cases authorizing the Governor to remove a member of the fire and police board, and concluding with this language: "The clear weight of authority sustains the right of the Legislature to control police, and equally is it sustained by sound reason."

If the Legislature can appoint a police board without the will, wish or knowledge of the municipal government, it can appoint any or all of the officers. It is true, a great many of the authorities proceed on the idea that the police are quasi State officers, or, rather, they enforce State laws as well as local municipal laws. The same can be said of the mayor of the city and of the city council, in that in many, if not most, instances they re-enact the State laws by passing ordinances punishing persons for offenses inhibited by State law, and to that extent they are making laws for the State, and the mayor is called upon to enforce the laws of the State. I dare say that in the police court to-morrow 90 per cent of the defendants before said court will be under a charge of violating State laws within the municipality. And no sound reason, public policy or decision of any court can ever justify a distinction between the right to appoint the police and the right to appoint any other officer in the city. See, also, Americus v. Perry (Ga.), 40 S.E. Rep., 230, 57 Law. Rep. Ann., 230, decided in 1902.

In People v. Pinckney, 32 N.Y. 377, the court said: "`The Legislature,' said Denio, J., in Darlington v. Mayor (MS. Op.), `have plenary power in respect to all subjects of civil government which they are not prohibited from exercising by the Constitution of the United States, or by some provision or arrangement of the Constitution of the State.' And he condenses with approbation the views expressed by Justice Washington in Dartmouth College v. Woodward, 4 Wheat., 518, 4 L.Ed., 629: `That there were two kinds of corporations aggregate, viz., such as were for public government, and others of a private character. The first are those for the government of towns and cities, or the like, and, being for public advantage, are to be governed according to the laws of the land. That these were mere creatures of a public institution, created exclusively for public advantage. That it would seem reasonable that such a corporation may be controlled, and its constitution altered and amended, by the government in such manner as the public interest may require. That such legislative interference can not be said to impair the charter by which the corporation was formed, because there is in reality but one party to it; the trustees or governors of the corporation being merely the trustees for the public, the cestui que trust of the corporation. * * * In People v. Morris, 13 Wend., 325, the Supreme Court held: `* * * It is an unsound and even absurd proposition,' says Nelson, J., in an opinion of signal ability, `that political power conferred by the Legislature can become a vested right, as against the government, in an individual or body of men. It is repugnant to the genius of our institutions and the spirit and meaning of the Constitution, for by that fundamental law all political rights not there defined and taken out of the exercise of legislative discretion were intended to be left subject to its regulation.'" In Barnes v. Dist. of Columbia,91 U.S. 540, 23 L.Ed., 440, Justice Hunt, delivering the opinion of the court, said: "An elected mayor or an appointed mayor derives his authority to act from the same source, to wit, that of the Legislature. The whole municipal authority emanates from the Legislature. Its legislative charter indicates its extent, and regulates the distribution of its powers, as well as the manner of selecting and compensating its agents. The judges of the Supreme Court of a State may be appointed by the Governor, with the consent of the senate, or they may be elected by the people. But the powers and duties of the judges are not affected by the manner of their selection. The mayor of a city may be elected by the people, or he may be appointed by the Governor with the consent of the senate; but the slightest reflection will show that the powers of this officer, his position as the chief agent and representative of the city, are the same under either mode of appointment. Whether his act in a case in question is the act of and binding on the city depends upon his powers under the charter to act for the city, and whether he has acted in pursuance of them, not at all upon the manner of his election." It may be said, however, that this case is not analogous to the question under consideration, in that the mayor in the District of Columbia was appointed by the Federal government. But if any locality in the United States has an innate and inherent right of local self-government, then the mere fact that it is a political subdivision of the United States, as contradistinguished from the States, would not change the inherent right of local self-government. In Commonwealth, etc., v. Lucas, 93 U.S. 114, 23 L.Ed., 822, this language is used: "But between the State and municipal corporations, such as cities, counties, and towns, the relation is different from that between the State and the individual. Municipal corporations are mere instrumentalities of the State, for the convenient administration of government; and their powers may be qualified, enlarged, or withdrawn at the pleasure of the Legislature. Their tenure of property, derived from the State for specific public purposes, or obtained for such purposes through means which the State alone can authorize — that is, taxation — is so far subject to the control of the Legislature that the property may be applied to other public uses of the municipality than those originally designated. This follows from the nature of such bodies, and the dependent character of their existence." In Commonwealth v. Plaisted, 148 Mass. 375, 19 N.E. Rep., 224, 2 Law. Rep. Ann., 142, 12 Am. St. Rep., 566, Morton, C.J., says: "There can be no doubt that the power to create, change, and destroy municipal corporations is in the Legislature. This power has been so long and so frequently exercised upon counties, towns, and school districts, in dividing them, altering their boundary lines, increasing and diminishing their powers, and in abolishing some of them, that no authorities need be cited on this point. The Constitution does not establish these corporations; but vests in the Legislature a general jurisdiction over the subject by its grant of power to make wholesome laws, as it shall judge to be for the general good and welfare of the commonwealth. It `may amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, and abolish them altogether, at its own discretion.' Weymouth Braintree Fire Dist. v. County Com., 108 Mass. 142. The several towns and cities are agencies of government largely under the control of the Legislature. The powers and duties of all towns and cities, except so far as they are specially provided for in the Constitution, are created and defined by the Legislature; and we have no doubt that it has the right, in its discretion, to change the powers and duties created by itself, and to vest such powers and duties in officers appointed by the Governor, if, in its judgment, the public good requires this, instead of leaving such officers to be elected by the people or appointed by the municipal authorities."

This excerpt appears to settle this question, but, in deference to the opinion of the majority of the court, I will review other authorities: In Philadelphia v. Fox, 64 Pa., 169, Justice Sharswood, delivering the opinion, says: "The sovereign may continue its corporate existence, and yet assume or resume the appointments of all its officers and agents into its own hands, for the power which can create and destroy can modify and change. Indeed, the Legislature of this commonwealth, under the Constitution, could not by contract invest any municipal corporation with an irrevocable franchise of government over any part of its territory. It can not alienate any part of the legislative power which by the Constitution is vested in a General Assembly annually convened. * * * If the Legislature were to attempt to erect a municipality with a special provision that its charter should be unchangeable or irrevocable, such provision would be a nullity, for acts of Parliament derogatory from the power of subsequent parliaments bind not. 1 Blacks. Com., 90. That such political institutions have not, and can not have, any vested rights as against the State, is strikingly illustrated and exemplified in the Borough of Dunmore's appeal, 52 Pa., 374, where it was held by this court that municipal corporations, being creatures of legislation, have no constitutional guaranty of trial by jury, and such trial may be denied them." "A public corporation is one that is created for political purposes, with political powers to be exercised for purposes connected with the public good in the administration of civil government — an instrument of the government subject to the control of the Legislature, and its members, officers of the government for the administration of the public good. Regents' case, 9 Gill J., 365, 397, 401, 31 Am. Dec., 72, and in the same case it is said, `Public corporations are to be governed according to the laws of the land, and the government has the sole right, as trustee of the public interest, to inspect, regulate, control, and direct the corporation, its funds and franchises. That is of the essence of a public corporation.'" Pumphrey v. Mayor, etc., of Baltimore,47 Md. 145, 28 Am. Rep., 446. In Burckholter v. McConnellsville,20 Ohio St. 308, it said: "Morality and good order, the public convenience and welfare, may require many regulations in crowded cities and towns which the more sparsely settled portions of the country would find unnecessary. And it is for legislative discretion to determine, within the limitations of the Constitution, to what extent city or town councils shall be invested with the power of local legislation." Where a charter of a city "provides for the appointment of officers connected with the constabulary of the State, there is no invasion of the right of local self-government, but simply the exercise of the power to provide for the selection of peace officers of the State." State ex rel. v. Kolsem, 130 Ind. 434, 29 N.E. Rep., 595, 14 Law. Rep. Ann., 566. If the city, as indicated above, has no right of local self-government that precludes the Legislature, through the Governor, appointing police, as this authority holds, then, it follows as a legal sequence which can not be successfully combated, that the Governor can appoint all the officers to govern a city. A municipal corporation is a creature of legislation, and its modes of government, and the officers conducting the same, may be changed by the Legislature. By an act of the Legislature of the State of Georgia, county commissioners were appointed to govern a county in which was located the town of Darien, and one of the duties put upon said commissioners was the exercise of corporate authority of such town. The court, in Churchill v. Walker, 68 Ga. 681, held said act was entirely constitutional, since, as stated, the municipal corporation is the bare creature of the Legislature, and they can provide such officers for it as they see fit. The power of the Legislature over municipal corporations, in the absence of constitutional restrictions, is unlimited, except so far as they are invested with rights incident to a private corporation. Public parks, the supply of gas, water and sewerage in towns and cities, may ordinarily be classed as private objects; but they often become matters of public importance, and whether they are the one or the other is a fact which may be decided by the Legislature. And in considering an act to supply the city of Portland with water, the court may take judicial notice of the fact that said city is the metropolis of the State, having important commercial and business relations with all its citizens, and that the entire community have, therefore, a direct interest in the city's welfare." David v. Portland Water Co., 14 Ore., 98, 12 Pac. Rep., 174. In this case the court upholds unqualifiedly the legislative right of absolute supervision and appointment of officers of a city whenever the Legislature may deem it necessary, and it is for the Legislature alone to decide when it is necessary. To support this position, an array of authority is cited in 14 Ore., 101, 12 Pac. Rep., 174, covering the page. In Meriwether v. Garrett, 102 U.S. 511, 26 L.Ed., 197, the court uses this language: "The right of the State to repeal the charter of Memphis can not be questioned. Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the Legislature may confer, and these may be enlarged, abridged or entirely withdrawn at its pleasure. This is common learning, found in all adjudications on the subject of municipal bodies, and repeated by text-writers. There is no contract between the State and the public that the charter of a city shall not be at all times subject to legislative control. All persons who deal with such bodies are conclusively presumed to act upon knowledge of the power of the Legislature. There is no such thing as a vested right held by any individual in the grant of legislative power to them. * * * By the repeal the legislative powers previously possessed by the corporation of Memphis reverted to the State. A portion of them the State immediately vested in the new government of the taxing district, with many restrictions on the creation of indebtedness. A portion of them the State retained. It reserved to the Legislature all power of taxation. It thus provided against future claims from the improvidence or recklessness of the new government. The power of the State to make this change of local government is incontrovertible. Its subsequent provision for the collection of the taxes of the corporation levied before the repeal of its charter, and the appropriation of the proceeds to the payment of its debts, remove from the measure any imputation that it was designed to enable the city to escape from its just liabilities."

This last cited authority merely fortifies the long array of authorities cited above, and adds additional force, in that the city of Memphis, by improvidence and mismanagement, had become so seriously involved in debt that some economic administration of its government was necessary in order to prevent the city from becoming helplessly bankrupt. The Legislature of the State of Tennessee, in order to meet this exigency and unfortunate condition, repealed the charter of Memphis, and provided for it what was denominated the Shelby County Taxing District; and in said act provided, as the quotation indicates, for its control, management and direction. The Supreme Court of the United States upholds this right. And it can be added with peculiar and pathetic force that the stricken city of Galveston had been previously mismanaged to such an extent that its revenues had been squandered and improvidently expended; and the Legislature of the State of Texas, with full understanding and sympathy with the stricken city, a few months before inflicted with a storm and cyclone that nearly decimated it, passed the charter in question, placing, as the Legislature thought, the government of Galveston upon a safer and more economic basis. Whether or not they acted wisely is not for us to decide. They had the legal and constitutional right to decide. With the policy of laws we have nothing to do. With the injustice of law we have no complaint to make, unless there is some constitutional inhibition, some direct clause, either expressed or by implication, that necessarily makes the act of the Legislature unconstitutional; and in this instance its acts are both humane, just, legal and constitutional.

In the view I have taken up to this time, I have proceeded upon the assumption that there is nothing in the Constitution against this character of legislation. But my brethren in the majority opinion insist that there is, and, to sustain them, cite certain clauses of the State Constitution. The first provision relied upon by the majority is section 1 of the Bill of Rights. In order that we may have a comprehensive conception of said provision, I quote it in its entirety: "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." It will be noted that this provision only attempts to lay down the proposition that the right of local self-government remains unimpaired to all the States — not unimpaired to all the "State," not unimpaired to all the counties, precincts and cities, but the right of local self-government remains unimpaired to all of the "States" as contradistinguished from the Federal government. In other words, the Federal government can not interfere with the local management of State affairs, or, to put it differently, they can not interfere with any governmental agency of the State, or any government of the State, unless such government in some respect infringes some constitutional provision of the Federal government. There is no thought in this clause of the Constitution guaranteeing to a municipality — a mere creature of the Legislature — the right of local self-government. The next clause cited is section 3 of article 6, entitled "Suffrage," which reads as follows: "All qualified electors 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 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: provided that no poll tax for payment of debts thus incurred shall be levied upon the persons debarred from voting in relation thereto." It will be seen from a perusal of this section that the Constitution builders had but one purpose in view, to wit, to define the qualifications of electors. If one has a constitutional right to vote for "mayor and all other elective officers," then what becomes of this constitutional right, when the Legislature abrogates the charter, as all writers on constitutional law concede it has the right to do? And even the construction insisted upon by the majority could not possibly apply to the latter clause of this section, for if this clause makes it absolutely necessary to elect the mayor, it does not guaranty to the elector the right to vote for other officers, but merely says he has the right to vote for all other elective officers. If they are not elective, he certainly can not have the right to vote for them under this clause. But it is a strained construction, utterly at variance to the subject under consideration, to say that the mere fact that the Constitution says, "who shall have the right to vote for mayor and all other elective officers," makes the mayor necessarily elective. Under the previous clauses in the same article, he has the right to vote for officers in the State, but must all these officers be elective? Certainly not. In article 11, entitled "Municipal Corporations," section 4 provides that "cities and towns having a population of ten thousand inhabitants or less, may be chartered alone by general law." And then follows a limitation upon their taxing power. Section 5 provides: "Cities having more than ten thousand inhabitants may have their charter granted or amended by special act of the Legislature." And then follows a limitation upon their taxing power, different from section 4. There is nothing in article 11 providing who the officers of a city should be. If the Constitution intended that the officers of a city should be elected by the citizens of the cities, certainly there would have been some provision, under the head of "Municipal Corporations," from which such construction or conclusion could have been reached. But there is a total absence of anything in said article as to who the officers shall be, how many officers cities should have, or whether they should be elected or appointed. It follows, therefore, that, in the absence of such a provision, the Constitution of this State being an instrument of limitation upon the power of the Legislature, the courts of this country can not sit idly by and hold the acts of the Legislature unconstitutional upon the unwritten law of the land. The above cited clauses are all that the majority insist upon in the Constitution inhibiting this character of legislation.

However, the majority say the charter is unconstitutional anyway, whether or not there is a clause in the Constitution on the subject. If this be true, then we have no guide left for our judicial footsteps, and the division of this court on this question in itself shows absolutely the instability and lack of foundation for any such opinion. They say this matter is so plain it need not be written in the Constitution. I do not think it is so plain. And the question as to whether the next case that comes before us is so plainly unconstitutional as need not be written in the Constitution will not depend upon the solid rock of the Constitution, but upon the caprice and conceptions of the personnel of the court deciding the case. This is not construction. This is absolute destruction of our form of government. It is the duty of this court to support the Constitution, and to construe laws solely with reference to the Constitution; and if there is no clause in the Constitution that prohibits the Legislature from passing an act, or unless there is implication from some clause in the Constitution that prohibits an act, this court has no warrant in law or custom to hold said act unconstitutional.

In the Hurlbut case, supra, Judge Cooley says that State government preceded town government. 24 Mich. 99, 9 Am. Rep., 103. Whether it did, or not, makes no difference, inasmuch as every writer in the United States says that municipal governments are the bare creatures of the Legislature. The legislative breath has made them, and the legislative breath can unmake them. If creature can dictate to the creator, and insist upon local self-government for the creature, and the creature alone can say to what extent it shall have local self-government, then the creator ceases to be the creator and becomes the creature.

It is sagely suggested in the majority opinion that the decision of the question is not meant as a reflection upon the Legislature, and Governor who signed the bill. This may be the individual feelings of the majority, but their opinion is a bill of indictment upon the patriotism of the Legislature as well as the Governor, because, when the legislative body, as the majority insist, have deliberately destroyed the right of free government — an innate constitutional right — this fact must necessarily reflect upon them; and, however kindly the court may feel towards the personnel of the Legislature, it still remains that, if this act is unconstitutional, it is, as stated, a bill of indictment upon the patriotism of the Legislature that passed it. Be this as it may, for this court to lay down the broad proposition that the Legislature of Texas is impotent to change any clause or provision of a charter as they have heretofore existed is such an innovation and construction of our Constitution and form of government, so at variance with the rules heretofore laid down, and so hampering upon the material and political prosperity of our State, I desire now to enter my most solemn protest against it. It follows from what I have said that there is nothing so plain that need not be written in the Constitution, and, whether or not the right of local self-government is invaded by this grant, it is constitutional, and there is nothing in the letter or spirit of the Constitution that remotely infringes upon the legislative right to create the charter with appointive officers for the stricken city of Galveston.

April 14, 1903.