The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1902-03-29

made to continue longer than two years.
since It's durStlon Is limited to that time
by the general provision OF the cousttu-
tion, (Const. Art, 40. Sec. 30; Kimbrough
vs., Barnett sS Texas, SOl; tue state IS.
Catlin, ~ Texas, 4S) II must be conceded
that the language OF the charter may be
construed as an attempt TO Fix the term OF
office for the policemen of the city during
good behavior. but this is controlled by the
constitution and the term Is limited to two
years. (City OF san Antonio VS. Mickle.
John, 50 Texas, So Keenan, VS. Perry. "A
Texas, 2osl The purpose is to place the
appointment of policemen aud their tenure
Of office under civil service rules and a
board Is created 10 hear and determine
charges against them for their removal.
Section 10 Of the act OF May -, 1899 (Spe-
cial Laws. y. 1888 further amending the
charter Of the city makes the city council
judge Of the election and qualification NJ
its members, and empowers Il by two
thirds vote TO remove any officer Of the
city after an opportunity 10 be heard Hut
this section evidently refers to other Of.
hcers than those placed under the civil ser
vice rules and is not inconsistent with sec.
lions 70 and 2Ha. Nor are these sections
inconsistent with section IT, which makes
the city marshal the chief Of police under
the mayor and provides that be shall sug-
gest 10 the mayor proper persons for mem
bers OF the police force of the city OF Hous
ton, of which force he shall have direct
control under the ordinances OF the city
Of Houston. Since SO much of section 70
as undertakes TO make the term OF service
continue during Efficient service and good
behavior is controlled by the constitution
and the term limited to cihcient service
and good behavior not exceeding two wears
all OF the other provision are valid and
may be enforced. tJoncS VS.. Doughterty,
36 S. W. 006, 600 But II u should be con.
ceded that the attempt to give the term OF
Office longer duration Is void and Of no
force and Is not aided by the constitution,
the officer would hold at the pleasure OF
and subject to removal by the appointing
power, which is the mayor and aldermen
composing the council, and the power TO re-
move Is II the corporation itself us Am.
and Eng Encyc. Law oh2a.) The question
Of the conSltutionahty Of law should be
approached with great caution and a stat
ute should never be declared void unless
the nudity and invalidtty of the act should
in the Judgment of the court be placed be-
yond reasonable doubt. Cooley Const Lin,
p, 1S2 ct seqJ AS said by Nlr. Justice
Washington in Ogden Us. saunders. IL
Wheat 2l3, In speaking of the rcSolu
ton of the doubt in favor OF the yghdty
Of the law: 1T is but decent respect que
to the wisdom, the integrity, ana patriotism
Of the legislative body by which any lazy
Is passed. to presume in favor of its valid
ity until its violation OF the constitution rs
proved beyond all reasonable doubt And
to the reasons given by the learned justice
may be added. a proper regard for the
rights aud powers Of coordinate branch
of the government. II 1t should be deter
mined, however, that the attempt 10 give
r longer duration 10 the term OF office than
two years is void aud is not preserve ed and
controlled by other Jaw than If so much
Of the act as conflicts with the constitution
can be treated as nudity without aueci
ing the remainder the portion that Is re-
pugnant viii he rejected and the other
parts Of 1t will be upheld Judge Cooley
SAYS;
"A statute may contain some such provI
siops and vet the same act having 70
ceived the sanction of all branches of the
legislature, and tcing In the form of law,
may contain other useful and s1lUttry pro
visions, not obnoxious to any just constl-
tutIona exception. II woG1d he moon
sistent with all lust principles of consti
tutional law to adiudge these enact
mentS void because they are associated In
the same act. but not connected With or
dependant on others which are uuconsu
tutonal Where, therefore, part Of
statute is unconstitutional, that fart docs
not authorize the courts to declare the re
maindcr void also unless all the provisions
are connected In subject matter, depending
on each other, operating together for the
same purpose, or otherwise so connected
together Ia meaning that Il can not I've
presumed the legislature would have pass.
ed the one without the other The oonst
tutonal and unconstitutional provisions
may even be contained In the same sec
tion. and yet be perfectly distinct ana sep
arabic, so that tine first NAV staud though
the last fall The point is not whether they
are contained in the same section; for the
distribution into sections Is purely arts
cial; hut whether they are essentially aud
inSeparahly connected In substance. It,
when the unconstitutional portion is stricN
en- ont, that which remains Is complete IN
Itself and capable of being executed tn
accordance with the apnafpnt legislative
iutent, wholly independent OF th0t which
was rejected. II must be Sustained.
/ tCooley-s Const. Lin. sections III, us BY
rejecting SO much Of the law rs seeks TO
make the tenure Of office longer than two
years, the general puPpose OF the act 10
place the aupoiatmeut and discharge OF
police officers under civil service rules In.
stead Of leaving the selection and removal
Of such officers TO fGyoritsm and uncertain.
~ can be sustained and the rules preScrh
I'd may he applied TO an appointment and
construction Of the law. however. Is that
the whole act is valid and that the dura-
ton Of term Of service Is during efficient
service and good behavior for two years as
limited by the constitution. that the law
must he observed In the appointment ana
selection Of the officers and that they
{ can not be discharged during their term ~
office except upon charges against them
Preferred and tried In the manner pre-,
scribed, We are OF the opinion that ordi-
vance ZIG, giving the marshal power tn
remove. Is ga conflict with the charter and
that the chief Of police had no authority
to discharge the plaintiff There can he
no doubt about the purpose of the defend
ants 10 dismiss the plainiin from the police
force or the effect Of rhelr action Their
act can not he regarded ms a suspension
pending the Investigation Of charges, be.
] ''dNFN Nv 'lAHl-'r WIN maui anu me ~
tempt of the hoard Of police. Gre and
heath md Of the city council to relnstate
the plaintiff was disrcgardcd aud the act
If dismissal maintained by the defendants
as conclusive and final.
/ The Judgment Of The court below viii
/ hr reversed ana Judgment will be here
rendered In favor az the plaintif adiudg.
/ ing that he has not been legally removed
| from his office as policeman Of the CITY
/ Of Houston ard that he he awarded the
writ OF Inandamus ucHinst the defe,dant4
] To rot i'm la f.Fw
/ tition.
Reversed and rendered
G.. G. Glrrctt Chief Justice.
/ Delivered March ~ 1902
] Filed March Is. 1902
A SENSATION AT PARIS.