
    Ex parte LONDON.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.
    Rehearing Denied March 4, 1914.)
    1. Municipal Corporations (§ 597) — Police Powee and Regulations — Removal op Garbage and Filth.
    Beaumont Oity Charter, § 32, empowering the council to take measures to prevent pestilential, contagious, or infectious disease, and to adopt' sanitary measures for the protection or improvement of the health, -as well as other provisions of the charter, especially section 76, authorized an ordinance prohibiting the removal of garbage and night soil except by the superintendent of the garbage department.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1325, 1354; Dec. Dig. § 597.].
    2. Constitutional Law (§ 63) — Distribution oe Governmental Powers — Delegation oe Powers.
    The Legislature could confer authority on the city council to pass an ordinance regulating the removal of garbage and night soil; it being the policy of the American system of government to subdivide the country and allow such subdivisions to regulate their internal affairs.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 108-114; Dec. Dig. § 63.]
    3. Municipal Corporations (§ 126) — Oeei-cers — Creation oe Oeeicers.
    Beaumont City Charter, § 27, providing that there shall be such other officers, besides those named, as may be provided by ordinance, authorized an ordinance creating the office of superintendent of the garbage department.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 298-300; Dec. Dig. § 126.]
    4. Monopolies (§ 4) — Occupations—Removal oe Garbage and Filth.
    An ordinance, conferring on the superintendent of the garbage department the exclusive right of removing garbage and night soil for others, is not violative of Const, art. 1, § 26, prohibiting the creation of perpetuities and monopolies; it being merely the conferring on a public officer of the exclusive right of performing a public function.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 3; Dec. Dig. § 4.]
    5. Monopolies (§ 3) — Validity oe Grants-Public Oeetcers — “Perpetuity.”
    Requiring an officer to perform some governmental function to the exclusion of all others is not the creation of a monopoly or perpetuity, within the meaning of Const, art. 1, § 28, prohibiting the creation of perpetuities and monopolies.
    [Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 3.
    
    For other definitions, see Words and Phrases, yol. 6, pp. 4570-4574; yol. 6, pp. 5319-5321; yol. 8, p. 7752.]
    6. Municipal Cobpobations (§ 597) — Police Powers and Regulations — Public Health.
    In dealing with matters necessary to the preservation of the public health, such as the cleaning of privies, etc., the city council can prescribe regulations, and make it the duty of some officer or agent to see that they are complied with, and can also prevent others from engaging in that occupation as a means of livelihood.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1325, 1354; Dec. Dig. § 597.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Rufus London was arrested on a charge of violating an ordinance of the city of Beaumont relating to the removal of garbage, and brought habeas corpus. Judgment against the relator, and he appeals.
    Affirmed.
    McDowell & Ferguson, of Beaumont, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec.-Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

The city council of the city of Beaumont, Tex., passed an ordinance creating what is termed the “Garbage Department,” and created the office of superintendent of the garbage department, to be appointed by the mayor, subject to the approval of the city council. The salary of the superintendent was fixed at $5 per annum and such fees as he might be entitled to under the ordinance for removing garbage; the fees for doing the work authorized being fixed by the law. The garbage superintendent was required to execute a bond in the sum of $1,000, conditioned for the faithful performance of his duties under such ordinance and the laws of the city of Beaumont. His duties are set out in detail in the ordinance, section 9, requiring him “to remove and carry away for the inhabitants of the city all trash, slops and night soil as per schedule of fees hereinafter set forth.” The ordinance also prohibits any other person engaging in the business of carting trash, slops, and night soil for others, permitting the citizens to do certain things for themselves if they so elect, but not for others. The ordinance also provides a penalty for any person violating the provisions. The ordinance is rather lengthy, and we think this is a sufficient statement of it to pass on the questions here presented. Many of the sections of the Beaumont charter are copied in the record; but, as this ordinance would be authorized by section 32, which provides: “The city council shall have power to take such measures as they deem effectual (not inconsistent with the general laws) to prevent the entrance of any pestilential, contagious or infectious disease into the city; * * * and to adopt any sanitary measure whereby the health of the city may be protected and improved” — as well as other provisions of the charter, especially section 76, we do not deem it necessary to copy them herein. It is not questioned that the complaint in this case charges a violation of this ordinance ; therefore, we will not discuss whether or not the facts in the record would justify or support a conviction, as this will be a question to be determined on the trial of the case if relator is remanded.

Relator contends that the ordinance is void upon the following grounds: “That said pretended ordinance and amendments thereto is null, contrary to and in violation of the Constitution of this state, in this, to wit: (1) In attempting to create the office of superintendent of the garbage department, for which there is no authority in law, and in giving the mayor authority to appoint and the city council the authority to confirm a superintendent of the garbage department, which is not provided for by law. (2) In attempting to absolutely prohibit any person or persons engaging in the business of hauling or removing trash, except the superintendent of the garbage department, appointed as aforesaid, or his employes, and is therefore contrary to article 1, § 26, of the Constitution of the state of Texas, which is, ‘that perpetuities and monopolies are contrary to free government and shall never be allowed.’ (3) That the city has no power to enact such ordinance or amendments thereto. (4) That it in effect destroys the legitimate business of others, and prevents them from following the lawful pursuit of such business. (5) That said ordinance and its amendments is unreasonable and unjust.”

It is thus seen that it is claimed that the authority to enact this charter or ordinance could not be conferred by the Legislature on the city council. This question has been so often before this court, and so uniformly held adversely to his contention, we hardly deem it necesary to discuss the matter. Mr. Cooley, in his work on Constitutional Limitations, p. 261 (7th Ed.) says: “In the examination of American constitutional law, we shall not fail to notice the care taken and the means adopted to bring the agencies by which power is to be exercised as near as possible to the subjects upon which the power is to operate. In contradiction to those governments where power is concentrated in one, man, or one or more bodies of men, whose supervision and active control extends to all the objects of government within the territorial limits of the state, the American system is one of complete decentralization, the primary and vital idea of which is that local affairs shall be managed by local authorities, and general affairs only by the central authority. It was under the control of this idea that a national constitution was formed, tinder which the states, while yielding to the national government complete and exclusive jurisdiction over external affairs, conferred upon it such powers only, in regard to matters of internal regulation, as seemed to be essential to national union, strength, and harmony, and without which the purpose in organizing the national authority might have been defeated. It is this, also, that impels the several states, as if by common arrangement to subdivide their territory into counties, towns, road, and school districts, and to confer powers of local legislation upon the people of each subdivision, and also to incorporate cities, boroughs, and villages where-ever the circumstances and needs of a dense population seem to require other regulations than those which are needful for the rural districts. The system is one which almost seems a part of the very nature of the race to which we belong. A similar subdivision of the realm for the purposes of municipal government has existed in England from the earliest ages; and in America the first settlers, as if instinctively, adopted it in their frame of government, and no other has ever supplanted it, or even found advocates.” This is not only the rule of law prevailing in this state, but, so far as our information goes, in every state in the Union.

As to the first proposition that there is no authority in law for the creation of the office of superintendent of the garbage department, it is specifically answered by section 27 of the charter of the city of Beaumont, wherein it is provided, in addition to the officers named in the charter, that “there shall be such other officers, servants, and agents of the corporation as may be provided by ordinance,” etc.

The second objection is that the ordinance is void in that it creates perpetuities and monopolies, as well as other matters, and this renders it violative of article 1, § 26, of the Constitution, which prohibits the creation of perpetuities and monopolies. If this were sound, it would be violative of this provision to create the office of tax collector, who must collect all the taxes, or any other officer whose duties are made exclusive by law, and this law has so often been decided contrary to appellant’s contention, it is useless to cite authorities. The city could create any officer under its charter it deemed necessary to the performance of the duties it was legitimately ’authorized to perform. Requiring an officer to perform some governmental function to the exclusion of all others is not the creation of a monopoly or perpetuity within the meaning of the Constitution.

The third was answered in the first. In dealing with matters necessary to the preservation of the public health, such as the cleaning of privies, etc., the city council has the right to prescribe regulations and make it the duty of some officer or agent to see that the regulations are complied with, and prevent others from engaging in that occupation as a mode or means of making a livelihood. In the case of Ex parte Howell, 158 S. W. 535, the questions have been presented and ruled upon adversely to appellant, and a citation of authorities will be found in that case.

In the evidence offered no complaint is made as to the fees fixed by the law being unreasonable, and this question is not presented for review. Relator’s counsel has filed no brief, and we are not therefore informed of any which he claims support his contention on the propositions made.

Affirmed.  