L. T. Blessing and others v. The City of Galveston, 42 Tex. 641

Moore, J. This suit was brought by appellant, Blessing, and some six or seven others on their own behalf, and on behalf of all others having a like and common interest, who might make themselves parties, to enjoin and restrain appellant from proceeding in prosecutions alleged to have been commenced by warrants issued by John S.

Rhea, claiming to be acting as recorder, under pretense of authority alleged to have been conferred on him by "an Act of the Legislature, incorporating the city of Galveston, on which warrants petitioners allege some of them were threatened with arrest, and others' of them had been arrested, for breach of an ordinance requiring them to pay a license tax on their respective occupations, trades, and professions, and, also, to enjoin and restrain appellee from the collection o£ said license tax. The injunction asked was allowed by the judge to whom the petition was presented.

And after it was filed, many others, who' allege that proceedings had been, or were about being commenced against them, before said pretended recorder, for penalties for their failure to pay a like license tax on their respective occupations, appeared and made themselves parties, and gave bonds as required by the order of the judge granting the injunction.

Many questions of great general as well as local and individual interest are presented by the record, and have been dis- ' cussed by counsel with consummate ability and with a research and learning which exhibits a thorough knowledge and complete mastery of the subjects which they involve. The principal grounds upon which appellants rely for a reversal of the judgment, which need be considered by us at this time, resolve themselves into the following general propositions : First.

The Charter or Act, under and by virtue of which appellee claims to exercise corporate powers, is inoperative and void, and confers no corporate power or authority whatever upon appellee. 1. Because it was not passed by the Legislature in conformity with the directions of

Section 24,

Article 3, of the Constitution. 2. Said act of incorporation was not submitted to the citizens of the city of Galveston for their approval or rejection, but was attempted to be imposed upon them without their consent. Second. The Constitution does not authorize the Legislature to delegate to the city of Galveston authority to levy and collect taxes from the people. Third. - The ordinance levying the tax claimed from appellants exceeds the power of taxation conferred on said city by its charter, and is in conflict with the constitutional restrictions regulating the levy and collection of taxes. Fourth.

The ¡Recorder’s Court created by the charter of the City of Galveston, in which the proceedings were had to enforce the penalties for failure to pay said taxes, is not such a judicial tribunal as is warranted by

Section 1,

Article 5, of the Constitution.

As preliminary to the discussion of the questions involved in these propositions, it will not be amiss, especially as it involves the sole ground upon which the injunction was granted by the judge to whom the petition was presented, to refer to an objection made by appellee on the hearing of the case in the District Court, and also urged before us as a ground why the judgment should not be reversed, viz.: This suit was brought to enjoin the collection of taxes with which a court of equity ought not to intefere, because it does not appear that any irreparable injury will accrue, and appellants have a full and complete rem edy' at law.

This proposition is unquestionably sustained by the weight of English authority, and has received the sanction of many American Courts of the highest character.

But while we are willing to concede its correctness in a general sense, and freely admit that courts should not lightly interfere to restrain, by injunction, the collection of taxes either municipal or State, and should, indeed, if asked to enjoin taxes levied for general revenue, or when their interposition might lead to the embarrassment of the State, do so with the greatest circumspection, and only then in cases where it is plainly manifest it is their imperative duty in the exercise of their equity powers, yet tnis rule is only applicable, we think, in such extreme cases as those indicated.

In an ordinary case involving the validity of a tax, either State or municipal, on constitutional or other grounds, which may be considered and determined by the court just as consistently with public interest before as after its collection, and especially where the rights of a large number of persons are involved, and a great number of suits may be avoided, and heavy individual loss and damage prevented, we concur in the conclusion, supported, we believe, in number and weight, by the better considered American cases, that courts may properly interpose by injunction to prevent its collection. (13 Gratt., 78; 27 Geo., 354; 25 Iowa, 436; 38 Penn., 309; 58 Id., 338; 22 Ind., 262; 10 Id., 70; 30 Ill., 148; 20 Id., 357; 21 Mich., 498; 20 La.

An., 450; 10 Wis., 242; 30 Conn., 404; 16 Ohio, 574; 6 McL., 142; 12 How., 567.) Nor do we think there was any valid objection to other parties, having a like interest with the original plaintiffs, making themselves parties. (54 Ill., 240; 51 Id., 130; 7 Cold., 49; 24 Barb., 187.)

Section 24,

Article 3, of the Constitution, says: “Ho bill “ shall have the force of a law until on three several days it be “ read in each House, and free discussion be allowed thereon, “ unless, in case of great emergency, four-fifths of the house in “ which the bill shall be pending may deem it expedient to “ dispense with this rule. And every bill having passed both “ houses shall be signed by the speaker and president of their “ respective houses ; provided, that the final vote on all bills “ or joint resolutions appropriating money or lands for any pur- “ pose shall be by yeas and nays.”

Section 17 of the same

article reads: “ Each house shall keep a journal of its own proceedings, and publish the same; and the yeas and nays of the “ members of either house, on any question, shall, at the desire “ of any three members present, be entered upon the journals.”

Section 25, of

Article 4, requires : “Every bill which shall have “ passed both houses of the Legislature, shall be presented to “ the Governor for his approval. If he approve he shall sign “ it, but if he disapproves he shall return it with his objections “ to the house,” etc,, etc; And

Section 26, same article, says: “Every order, resolution, or vote, in which the concurence of “ both houses shall be required, except the question of adjourn“ment, shall be presented to the Governor, and must be ap- “ proved by him before it can take effect; or being disapproved “ shall be re-passed in the manner prescribed in case of a bill.” Substantially similar provisions are to be found in the Constitutions of most of the States, and have elicited much judicial as well as political discussion, resulting in marked divergent and conflicting opinions and conclusions.

We are only interested with those of a judicial character. A bill does not become a law, or order, resolution, or vote take effect, until it has undergone the consideration and final action of botli the legislative and executive departments, although it may not necessarily receive the sanction of the latter. The judicial department has no participation with the other departments in making or enacting laws; but to it is entrusted the sole duty of administering them.

And as the Constitution makes no positive provision, and furnishes no specific direction how it shall ascertain what law is enacted by the other co-ordinate departments, or how or when they are so enacted, it follows that it does these solely from and by reason of its inherent judicial knowledge and power. It is evidently, therefore, an incongruous proposition, to insist, as has been done in some cases, tha't an issue of fact, whether a particular bill has been passed by the Legislature in conformity with the constitutional directions, can be presented in the final decision of the case on its merits by the jury.

Thi$ would be, in effect, to take from the judge the right and duty of knowing and declaring the law and conferring it upon the jury. If any question can arise, whether a bill has, in fact, become a law, it is a question which addresses itself solely to the court, to be answered by its judicial knowledge, privileged, undoubtedly, however, to call to its aid such means of enlightenment and information as may be compatible with judicial discretion, and the proper exercise of judicial functions.

The difficult question still remains for determination, whether, if the court, through its judicial knowledge, or being enlightened by inspection or satisfactory evidence of the contents of the journals of the two houses of the Legislature, is informed that the bill does not appear to have been passed by the Legislature in conformity with all the constitutional directions and requirements, is it the duty of the court, or is the court at liberty, to say that such bill has not become a law, though signed by “ the speaker and president of the respective “ houses,” and verified and apparently consummated by the approval of the Governor % Beyond question, many courts have held that they may, and jurists of the highest character have sanctioned their conclusions.

We are constrained, however, to say that we cannot agree that, either on principles of sound reason or the weight of authority, can it be maintained, that the judicial department, on the bare fact that the journals of one or both houses of the Legislature fail to show thepassage of the bill in full and strict conformity to all the directions contained in the Constitution, should disregard and treat as naught

an act in all other respects perfect and unobjectionable, as Avas in effect said by the Superior Court of Ohio (Miller v. The State, 3 Ohio St., 483).

We do riot say, for Ave are not called upon in this case to do so, Iioav far the court may be bound by the mere signatures of these officers as conclusive evidence of the alleged law, when the objection presents the question of “ the authority in which the law- “ making power resides, or the number of votes a bill must re- “ ceive to become a law.” The power to make law is in the Legislature, and is exercised by the requisite number of members and votes required in the Constitution to pass a particular bill.

The signature of its officers and the appiwal of the Governor cannot, unquestionably, make that Iuav Avhich has not been enacted by the Legislature. They only furnish evidence, conclusive or otherwise, as may be held, of the enactment of the alleged law by the Legislature.

And, Avhile we may see great difficulty as well as danger in holding that the judicial department may go behind the final and concluding if not conclusive evidence provided in the Constitution for authentication of all bills passed by the Legislature, this is altogether a different question from that presented by the proposition that the court may disregard the bill, though passed by the requisite majority, because of some irregularity in some preliminary order of business, or through failure of either house in keeping a full and accurate journal of its proceedings.

To do so would, in our opinion, lead to most disastrous consequences. (Cooley, Const. Lim., 191, 192, and cases cited in notes.) If we were to treat the signature of the speaker and president of the two houses, the approval of the Governor, and the record of the act in the department of State, as merely prima, facie evidence of its validity, the irregularities or mere omissions shown by the journals, as insisted upon by appellant’s counsel, would not warrant the conclusion that it had not been duly and legally enacted by the Legislature.

Looking at the journals alone, it can only be said, at most, that there is some doubt whether the act as approved by the Governor had been passed by the Legislature in manner and form as directed in the Constitution.

Evidently this would not rebut the presumption in favor of the law from the signature of speaker and president, though no weight should be given to the action of the executive department, whose opportunity of correct information of the action of the Legislature is certainly much better than that of the judicial department, and to whom it is equally as important for the correct discharge of its own constitutional functions and duties.

No principle of law is more clearly or firmly settled than that public or municipal corporations, established for public purposes, such as the administration of local or civil government, are not in the nature of contracts between the State and the corporation, and that their charters may be annulled and revoked at the will and pleasure of the Legislature, as it deems the public good may require. “ It is,” said Justice Nelson, “ an unsound and even absurd proposition that political power “ conferred by the Legislature can become a vested right as “ against the government in any individual or body of men.” (People v.

Morris, 13 Wend., 325.) “ Public or municipal eor- “ porations are established for the local government of towns “ or particular districts.

The special powers conferred upon “ them are not vested rights as against the State, but, being “ wholly political, exist only during the will of the general Leg- “ islature ; otherwise there would be numberless petty govern- “ ments existing within the State, forming part of it but inde- “ pendent of the control of the sovereign power.” (16 How., 369.) Such corporations are the creatures of the State, made for a specific purpose, to exercise, within a prescribed limit, powers conferred upon them.

The State may withdraw these local powers of government at pleasure, and may, through its-Legislature, or. other appointed channels, govern the local territory as it governs the State'at large. It may enlarge or contract its powers or destroy its existence. (United States v. The Baltimore and Ohio Railroad Co., Wall.) The Legislature cannot alienate any part of its legislative power. “ It cannot, therefore,” says Sliarswood, J., “ by legislative act or contract invest a municipal “ corporation with irrevocable franchise of government over “ a part of its territory.” (64 Penn.

St., 169.) It necessarily follows from these fundamental and well-established general principles, that the fact of an existing act of incorporation, or the failure to submit to the people for acceptance or rejection the new act of incorporation, in no way affects the validity of the new charter.

If so, the right and power of government over so much of the State as is included in the corporate limits of the city, is vested, not in the Legislature, but in the local community; and delegated power will have become superior to the source from which it derives its existence; or the people of a particular locality may dictate the manner-in which the legislative power in their particular locality shall be exercised. If, however, assent to the act of incorporation must be shown, this is sufficiently done by the subsequent organization and continued exercise of the functions conferred by the act.

The rule, however, which applies to private corporations, that the incorporating act must be assented to or accepted before it has any effect, has no application to statutes creating municipal corporations. These, as says Judge Dillon, are imperative and binding without any consent, unless the act is expressly made conditional. (Dill. Municipal Corp.,

Section 23).' Ho special authority, it is said, is conferred by the Constitution upon the Legislature to create local municipal corporations, such as cities and towns, and therefore the legislative power to levy taxes, cannot, it is insisted, be conferred upon or delegated to such corporations.

It is sufficient answer to this proposition, to say, that the power and authority to create local municipal corporations, though generally mentioned and specially authorized in most constitutions, is an essential incident of and inherent in the grant of legislative power, under our social organization and republican system of government. And while it is a well-recognized rule, that the Legislature cannot delegate its general legislative powers, it is equally well settled, that it may confer on such corporations local legislative power adequate for the purposes of their creation.

These propositions are illustrated and supported in cases heretofore referred to. If, as is urged, the ordinance levying the taxes, about which the present controversy arose, exceeds the legislative power of taxation, or there is a violation of any provision of the Constitution in said ordinance, or in the proceedings authorized by it, for the collection of the taxes levied thereby, to the extent of such conflict it is of course void. The main points urged in support of this objection, seem to be, the want óf an assessment by a justice of the peace, and the alleged want of equality and uniformity in the tax.

Both of these propositions have been sufficiently discussed in their general aspects in the case of The Texas Banking and Insurance Co. v. The State, in which suit was brought by the State for the recovery of a similar character of tax. It may be proper, however, for us to say, that we are not to be understood as holding, that all the taxes levied by this ordinance are warranted by the Constitution. Our decision, on the contrary, is intended to be limitedpn its application to taxes on occupations, trades and professions.

The parties by whom this suit was instituted are unquestionably liable to this character of tax ; if some of the others, who made themselves parties upon the ground of a common interest with the parties bringing the suit, are not, we cannot properly pass upon or determine other questions which may affect them in this case. Equality and uniformity of taxes on occupations, to the approximate extent of which it is reasonably attainable, is required by the Constitution, and is an essential element in the power of taxation.

But discrimination in occupations and classifications of them, so far as it has been made to appear to us, seems to be a reasonable and proper rule applied by the Legislature for the purpose of apportioning such taxes with equality and uniformity. Until it is shown that the Legislature has clearly exceeded the limit of their authority and disregarded the restrictions by which it should be controlled, evidently the court cannot interfere.

If the Legislature, or the city, under color of its authority, should plainly disregard the inherent nature of the taxing power and direct constitutional restrictions, and, under color of the taxing power, make palpably discriminating exactions, thereby making, in effect", confiscations, and levying contributions instead of taxes, or departing from the plain constitutional requirement of the taxation upon the property according to its value, and impose heavier burthens on one character of property than on others, by reason of any particular use or purpose to which it is applied, or supposed increase of some particular public burthen or expenditure, such, for example, as keeping in repair roads or streets, it would be the duty of the court on its being properly made to appear to grant appropriate relief.

The objection made to the constitutionality of the Recorder’s Court, created by the charter, has been, in effect, answered by what lias been heretofore said. If the Legislature may, by reason of its inherent legislative power, create a municipal corporation for purposes of local government, it seems to follow, as a necessary conclusion, that it may invest with such powers as are necessary and essential for the ends and purposes of its creation.

Without the grant of general police powers, and the means of enforcing their respect and observance, the act of incorporation of a town or city would be little better than waste paper. Judicial power of a general character, such as is conferred upon constitutional tribunals, or officers clothed with judicial functions for the general administration of the laws, in contradistinction to local or municipal ordinances and regulations, cannot be conferred upon mere corporation courts created to enforce the police powers delegated to such corporations.

This seems to be the extent to which we can certainly say, in the absence of the constitutions and statutes applicable to them, that most of the cases cited by appellant clearly go. Some of them, however, seem to lay down a broader rule. We cannot consent to give the sections of our Constitution, conferring and distributing the judicial power, so limited and technical a construction and application.

We think its language, vesting judicial power “in such inferior courts and magistrates as may “ be created in this Constitution, or by the Legislature under “its authority,” entirely sufficient to warrant the Legislature, when creating municipal corporations, in the absence of any restriction, to create local municipal tribunals as an essential necessity to the well-being of such local municipal corporations. (The State v. Young, 3 Kansas, 445; Hutchings v. Scott, 4 H. (N. J.), 218; Schaffer v. , 17 Md., 381; 32 Md., 369.) There being no error in the judgment, it is affirmed.

Affirmed. (Justice Gould did not sit m this case.)