The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1898-02-04

Roland, II App. 1885, Flood VS.. State. L
App, 3Sf; ex partc Frank Freeland. AZ $
w. Rep. 2a5; Angerhoffec VS.. state, u
App. 613.)
which hold that q municipality can by or
| dinance take Jurisdiction OF oficnses which
are made such by the laws OF this State
| and of which the county court has exciu-
sive Jurisdiction. and this, notwithstanding
| article 3. section IL, of the constitution
which requires that AL prosecutions must
4 be in the name and by authority OF the
State OF Texas and shall conclude against
| the peace and dignity OF the STATE tSts
ex rarte Wilson, II Appeal, 3o2.)
In the Wilson case, supra. the constitu-
tional provision above mentioned was not
discussed at all. nor WIS It discussed in
any case we are aware OF, except in Leach
VS.. State. t35 Texas. Or. Rep. p. 24s.)
or course. a great many matters are in
cidental to inulicipal corporations and are
not at all yiolaive OF State laws and IL.
question can arise Us to ordinances covering
said acis A number OF acts are petty Of
lenses and are covered by State las, and
would appear also to be peculiar oIfensss
against the municipal government ana iuci-
dental TO such government, as we'll as Of
lenses against the State. Our criminal
code defines q petty oftense as one when
2 Justice OF the peace or the mayor or ether
ciiicer OF town or city may try anu pun
ISM Cart. 81, Or. Code.) And this appears
TO be III conscnance with the authorities de-
inning petty oftense. Some OF the cases
hold that petty offense can be made an
ofterse against the municipal corporation
by ordinance. and can be punshed without
violating the above provision of the cupsti-
tutfon with reference to prosecutions while
others hold to the contrary. tSee note to
N p.l,tt 4, ~
Rep, vol. 80, p. 33, ana authorities there
cited city Of Davenport VS.. Bird, 81 Iowa,
D. 524)
In the latter case the action was under
an ordinance of the city of Davenport, pre-
scriblng that every person who shall un-
lawfully disturb the public quiet of any
street alley, avenue, public square, market
pace, etc, by loud or unusual noise, by
blowing horns, or other instruments, etc,
snah be guilty of a misdcmeanor' and the
me provided was not less than SO nor moro
tnan 500 and Imprisonment until the iina
and costs were paid, provided that the I'm
prlsonment should not exceed thirty dIys
" was claimed In that case that said ac-
ton was prosecution. that it was not
authorized under the constitution OF Iowa,
which Is similar in its provisions to ours.
We quote from that case ms follows:
Is u necessary, under the constitution
mat all prosecution for violations of mu-
nic1pal police ordinances shall be conducted |
IN the name and by the authority of the |
state OF Iowa? Or, in other words is that |
clause of the city charter of Davenport. |
which directs that ali suits actions and |
prosecutions. instituted, commenced or |
brought by the corporation shall be insti- |
Luteu, commenced or prosecuted in the |
1ame of the city OF Davenport :" in conflict |
with the constitutional provision before re- |
erred to?
We are of the opinion that 1T is not This
'lause of the constitution occurs in arti-
Ne 5, which treats of the judicial depart
nent OF the government This article vests
md defines the judicial power of the State |
Establishes the tenure of office of the
u the judges and defines the mode of their
lection fixes their salary and limits the
lumber of judicial districts, provides fer
n, election of an attorney general and
'ther matters pertaining to the judicial
lrm of the State, among which is the
lause under consideration.
From all this 1t seems manifest that the
equrement that call prosecutions shall be
onducted in the name and by the author
ly of the State of Iowa." contemplates
uch criminal prosecutions as shall be in
tituted and prosecuted before the tribu-
lais. which are provided for in that article
Y the constitution, under the statutes OF
ne State. IL is, fitting and appropriate
hat prosecutions for violations of the
riminal laws of the State should be car
led on in the name OF the government.
SUI there is no fitness or propriety in
equiring the State to be a party to every {
city prosecution under the police regu-
atoms OF municipal corporation. Such
construction of this article of the con-
tuition seems TO us unwarranted and not
Intended by the trainers of the constitu-
ion. I
II was held by the supreme court of Penn. !
'iyania that the word process" in the !
Velfth section of the fifth article of the /
institution of Pennsylvania. which pro- (
ldes that the STYLE of all process shall be c
The commonwealth of Pennsylvania" was q
tenueu TO refer to such writs only as i
iould become necessary to be issued in the I
.urts OF the exercise of that judicial power q
nich is established and provided for in the 4
'ticle of the constitution. and forms ex- a
usiyeiy the subject matter of it. e. Penn, e
lis, $50 ~
On the same principle we are of opinion n,
at the word prosecution" in the eighth Ell
elton of article 5 of our constitution was
tended to refer only to such criminal
osecution, under State laws. as should be
gnIzable by the judicial power. which is
tablished and provided for in that article. W
d that II was n3t intended to include pr
osecutions under ordinances of municipal b
rporations equitable before local police
igistrates. IL follows therefore, that in ps
staining the demurrer on the first ground In
tied the court below erred. SO
rms does not appear to have been State
ense, by statute treating It as munich ma
offense merely. 1t states the correct its
ctrine. 81,
lhaer the authorities we are inclined to
, view that In the face of the constitu-
nal provision before quoted. where an
snse has been made such by State law.
lwithstanding II is petty onense, ii !.
st be prosecuted by authority OF the ST.
ne ana against its peace and dignity. In 81
case, however II is not necessary for hi
10 decide that question: as the offense hi
which the relator was tried and pun re
ed Was not a netty oifense. but an Of Br
Sc over which the county court being eri
r Of record. alone had jurisdiction
low the question which presents ITSELF
does the fact n at the mi,nicinaI ,,,.,