
    STATE ex rel. BERGERON v. TRAVIS COUNTY COURT et al.
    (No. 3354.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.
    Rehearing Denied Feb. 17, 1915.)
    1. Criminal Law i&wkey;84 — Jurisdiction—Corporation Court.
    Under Const, art. 5, § 1, declaring' that the judicial power of the state shall be vested in certain named courts and in such courts as may be authorized by law, as amended in 1891 to authorize the Legislature to establish other courts, the Legislature was authorized to enact Rev. St. 1911, art. 904, providing that the corporation court shall have jurisdiction in all criminal cases under ordinances, and, concurrently with any justice of the peace, in all cases arising under the criminal laws of the state in which punishment is by fine only, not to exceed $200.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 115-124; Dee. Dig. <&wkey;>84.J
    2. Criminal Law <&wkey;1018 — Appellate Jurisdiction — County Court.
    Where the corporation court had jurisdiction to try an offense under the criminal law of the state, the county court had jurisdiction on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2577; Dec. Dig. &wkey;1018J
    3. Criminal Law <®=»S8 — Jurisdiction of Corporation Court — “Vagrant.”
    A prosecution on complaint charging that defendant, on or about a certain day and on each successive day thereafter to a certain date, was a vagrant, in that she was unlawfully and willfully the keeper of a house of prostitution, where prostitutes were permitted to resort and reside for the purposes of plying their vocation, etc., was a prosecution under Pen. Code 1911, art. 634, defining vagrancy and providing by subdivision “j” that every keeper of a house of prostitution shall be deemed a,“vagrant,” punishable under article 639 by fine alone, not to exceed $200, which under the express provision of Rev. St. 1911, art. 904, was within the jurisdiction of the corporation court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 127; Dec. Dig. <&wkey;>88.
    For other definitions, see Words and Phrases, First and Second Series, Vagrancy.]
    4. Disorderly House <&wkey;2 — Prosecution-Statutes.
    Such prosecution was not a prosecution under Pen. Code 1911, art. 496, which defines a bawdyhouse and a disorderly house and article 500, which fixes the punishment to be assessed at a fine of $200, and by imprisonment in the county jail for 20 days for each offense.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 1, 2, 9; Dec. Dig. <&wkey;2J
    5. Criminal Law &wkey;»84 — Jurisdiction—Establishment of Courts — Constitutional Provisions.
    Under Const, art. 5, § 1, declaring that the judicial power of the state shall be vested in certain named courts and in such others as may be provided by law, as amended in 1891, authorizing the Legislature to establish other courts deemed necessary, Code Cr. Proc. 1911, arts. 963, 964, and 965, authorizing mayors within corporate limits to exercise the same criminal jurisdiction as belongs to justices of the peace, providing that proceedings before mayors shall be governed by the same rules as in proceedings before justices of the peace, and giving mayors and justices concurrent jurisdiction, are valid enactments.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 115^-124; Dee. Dig. <&wkey;84.]
    6. Prohibition <&wkey;9 — Jurisdiction.
    It is only in cases in which the court has no jurisdiction, or is exceeding its jurisdiction, that the writ of prohibition will lie, and it will not lie where the inferior court has jurisdiction of the subject-matter and the defendant is duly served with process or voluntarily appears.
    [Ed. Note. — For other cases, see Prohibition, Cent. Dig. § 35; Dec. Dig. <&wkey;9J
    7. Prohibition <&wkey;l7 — Right to Remedy— Objeotion to Jurisdiction.
    Where defendant, prosecuted in the corporation court, did not there contend that the article under which he was prosecuted had been repealed so1 as to give that court, having jurisdiction, opportunity to rule thereon, and after sentence and appeal to the county court did not make such contention therein, but made it for the first time by petition to the Court of Criminal Appeals for prohibition against the county court, the writ would not issue, defendant not having objected to the jurisdiction of the court at the outset.
    [Ed. Note. — For other cases, see Prohibition, Cent. Dig. § 66; Dec. Dig. &wkey;3l7.]
    Application by Lillia Bergeron for writ of prohibition to the county court of Travis county and others.
    Writ denied.
    Grover & Posey, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

The record before us discloses that a complaint was filed against the applicant in the corporation court of the city of Austin, in which it was charged that:

Applicant “on or about the 1st day of August, 1914, and on each successive day from that date to the 29th day of August, 1914, was a vagrant, in that she was then and there unlawfully and willfully the keeper of a house of prostitution, in the city of Austin, which said house she did then and there unlawfully keep as a house for the purposes of prostitution, and where prostitutes were permitted to resort and reside for the purposes of plying their vocation,” etc.

On the day the case was called for trial in the corporation court, applicant appeared and filed a plea in which she alleged that:

“The offense attempted to be alleged would be an offense against the criminal laws of the state of Texas, and not a municipal offense, and asked that the case be transferred to a proper court.”

This is all the plea filed in the corporation court other than a plea of not guilty. It was overruled, and when tried she was convicted and fined in tlie sum of $200. Site appealed the case to the county court, and executed a bond conditioned for appearance in the county court in this cause. When the case was reached on the docket of the county court, applicant filed a motion to dismiss, alleging: (1) That as the complaint charges applicant with being a vagrant in that she did then and there unlawfully keep a house for the purpose of prostitution, and where prostitutes were permitted to resort and reside, etc., it is insisted that the offense alleged is brought under Pen. Code 1911, arts. 496 and 500, defining and punishing'the keeper of a house of prostitution, in which a portion of the punishment assessed is by imprisonment in jail, and the corporation court would have no jurisdiction of the offense. (2) That corporation courts have no jurisdiction over crimes committed against the state, and that this prosecution is for an offense against the laws of the state, and not a violation of a city ordinance. (3) It is contended that articles 963, 964, and 965 of the Code of Criminal Procedure are unconstitutional and void, and that corporation courts are no part of the constitutional judiciary of this state. Upon the overruling of the above motion by the judge of the county court, applicant filed a petition asking that this court issue its writ prohibiting the county court from exercising any jurisdiction in this cause, and restraining the county court from proceeding further in this cause, and asks that we enter an order requiring the county court to dismiss the case; the grounds alleged being the same as those alleged in the motion filed in the county court praying for a dismissal of the case. This court ordered the application filed, and set the cause down for a hearing in order to determine whether or not we should issue the writ prayed for. Attorneys for applicant have filed very exhaustive and entertaining briefs, and we have given them careful thought and study.

The first question presented, which is the one presented in the corporation court, is that as the prosecution was for a violation of the criminal laws of the state, and not an ordinance of the city, the city court had no jurisdiction of the offense. This court formerly so held, and in consequence the Constitution was amended in 1891 by providing that:

“The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof,” etc.

Since the adoption of that amendment, the validity of the act creating the corporation courts and defining their jurisdiction has been upheld both by this court and the Supreme Court. In Ex parte Abrams, 56 Tex. Cr. R. 468, 120 S. W. 885,18 Ann. Cas. 45, this court held:

“The question of the authority of corporation courts in cities to try offenses against the state law has been frequently before this court, and has been the subject of radical difference among the judges composing the court, and has resulted in much confusion in the decisions of this tribunal. In the case of Leach v. State, 36 Tex. Cr. R. 248, 36 S. W. 471, it was held that under our Constitution, ar.t. 5, § 1, declaring that the ‘judicial power of this state shall be vested in certain named courts and in such others as may be provided by lav/,’ the Legislature cannot give a municipal court created as an incident to a municipal corporation, jurisdiction, concurrent with a state court over violations of state laws. Our Supreme Court, however, in an elaborate opinion by Judge Brown in the case of Harris County v. Stewart, 91 Tex. 133 [41 S. W. 650], ruled otherwise. It is in that case in terms held that ‘the Legislature has power, under the Constitution, to confer upon a city recorder the jurisdiction of a justice of the peace over offenses committed against the laws of the state’; and the court refers as authority for this holding to the following authorities: Constitution, art. 5, Amendment 1891; Code of Criminal Procedure, arts. 98, 929; Ex parte Ginnochio, 30 Tex. App. 584 [18 S. W. 82]; Ex parte Towles, 48 Tex. 413; Gibson v. Templeton, 62 Tex. 555; Blessing v. City of Galveston, 42 Tex. 641; Johnson v. Hanscom, 90 Tex. 321 [37 S. W. 601, 38 S. W. 761]; State v. Helfrid, 2 Nott & McC. [S. C.] 233 [10 Am. Dec. 591]; Nugent v. State, 18 Ala. 521; Waldo v. Wallace, 12 Ind. 569; Gulick v. New, 14 Ind. 93 [77 Am. Dec. 49]; Gray v. State, 2 Har. (Del.) 76; Burch v. Hardwicke, 30 Grat. (Va.) 24 [32 Am. Rep. 640]; Hutchings v. Scott, 9 N. J. Law, 218.
“In the later case of Ex parte Wilbarger, 41 Tex. Cr. R. 514 [55 S. W. 968], the rule theretofore announced in Ex parte Leach seems practically to have been overruled. It was in Ex parte Wilbarger in effect held that, under the amendment of 1891, expressly providing that ‘the Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof and may conform the jurisdiction of the district and other inferior courts thereto,’ the Legislature had complete authority to create other courts than those enumerated in the Constitution, and prescribe their jurisdiction. The conclusion reached in that case and the rule therein established has since been the'settled holding of this court. Ex parte Hart, 41 Tex. Cr. R. 581 [56 S. W. 341].”

After the adoption of the above amendment, the Legislature enacted article 904, Revised Statutes 1911, which reads:

“Said court (the corporation court) shall have jurisdiction within the territorial limits of said city, town or village, within which it is established, in all criminal cases arising under the ordinances of the said city, town or village, now in force, or hereafter to be passed, and shall also have jurisdiction concurrently with any justice of the peace in any precinct in which said city, town or village is situated, in all criminal cases arising under the criminal laws of this state, in which the punishment is by fine only, and where the maximum of such fine may not exceed two hundred dollars and arising within the territorial limits of such city, town or village.”

As hereinbefore stated, this provision of the statute has been upheld both by the Supreme Court and this court, therefore the corporation court did not err in overruling that plea to its jurisdiction, and, if the corporation court had jurisdiction to try the offense, certainly the county court would have and should entertain jurisdiction on appeal.

It is next alleged that the complaint charges an offense under articles 496 and 500 of the Penal Code. Article 496 defines a baw-dyhouse and a disorderly house, while article 600 prescribes the punishment to be assessed against any one keeping or any one who is concerned in keeping such a house, and fixes the punishment to be assessed at a fine of $200, and by imprisonment in the county jail for 20 days for each offense. If the complaint was filed under these articles of the Code, no one would or could contend that the corporation court of the city of Austin would have jurisdiction of the offense, or that the county court on appeal, under such circumstances, would have jurisdiction of the cause. And, if the complaint had been brought under those articles of the Code, applicant would doubtless be entitled to the writ as prayed for. But was the complaint drawn under those provisions of the Code? By the plain language of the complaint it is made manifest that the prosecution was brought under article 634 of the Penal Code, which article defines vagrancy, and provides, “the following persons are and shall be punished as vagrants,” in subdivision “j” of said article providing that “every keeper of a house of prostitution” shall in law be deemed a vagrant, and the punishment prescribed Vy law for such an offense in article 639 is by fine alone and in a sum not exceeding $200, and if brought under this provision of the Code the corporation court would have jurisdiction of the offense as provided in article 904 herein-before copied, and other provisions of the laws and the Constitution of this state, and, if the corporation court had jurisdiction of the case when filed, the county court would not err in entertaining jurisdiction of the case on appeal. And in so holding we necessarily hold that articles 963, 964, and 965 of the Code of Criminal Procedure are not unconstitutional and void, but are legal and valid enactments under the amendment to the Constitution adopted in 1891. Harris v. Stewart, 91 Tex. 133, 41 S. W. 650, and cases cited, and Ex parte Abrams, 56 Tex. Cr. R. 465, 120 S. W. 883, 18 Ann. Cas. 45.

This disposes of all questions presented in the motion to dismiss the case as presented to the county court, and we hold that the county court did not err in overruling said motion as presented to it.

Another question not presented to the county court in the motion filed therein is sought to be presented to this court in the briefs filed; but, as we have held and now hold that the county court committed no error in overruling the pleas presented to it, we do not think applicant entitled to a writ prohibiting the county court from proceeding further with the case. The question sought to be raised for the first time in this court is that, as the articles of the Penal Code defining and punishing a keeper of a bawdy or disorderly house were passed subsequent to the articles defining and punishing vagrancy, those articles defining and punishing keepers of bawdy and disorderly houses by necessary implication repeal subdivision “j” of the vagrancy act (article 634). If. this provision of the law is not repealed by articles 496 and 500 of the Penal Code, the corporation court would have jurisdiction to try one charged with vagrancy under article 634, and it is only in eases in which the court has no jurisdiction, or is exceeding its jurisdiction that the writ of prohibition will lie. Bailey on Habeas Corpus and Prohibition, § 356, lays down the rule:

“The definition of the term ‘jurisdiction’ has been given and the general rules which apply to distinguish it from error have been quite fully discussed in other parts of this work.
“It only remains to call attention here to that distinction upon application for a writ of prohibition.
“It is said the writ issues only to restrain the acts of a court or other inferior tribunal exercising judicial power, which it has no legal authority to exercise at all.
“And also that, where the court or inferior tribunal has jurisdiction of the subject-matter and the defendant is duly served with process or voluntarily appears, the writ will not be granted.”

The Supreme Court of the United States, in Smith v. Whitney, 116 U. S. 167, 6 Sup. Ct. 570, 29 L. Ed. 601, held:

“It is often said that the granting or refusing of a writ of prohibition is discretionary, and therefore not the subject of a writ of error. That may be true, where there is another legal renjedy, by appeal or otherwise, or where the question of the jurisdiction of the court whose action is sought to be prohibited is doubtful, or depends on facts which are not made matter of record, or where a stranger, as he may in England, applies for the writ of prohibition. But where that court has clearly no jurisdiction of the suit or prosecution instituted before it, and the defendant therein has objected to its jurisdiction at the outset, and has no other remedy, he is entitled to a writ of prohibition as matter of right; and a refusal to grant it, where all the proceedings appear of record, may be reviewed on error. This is the clear result of the modern English decisions, in which the law concerning writs of prohibition has been more fully discussed and explained than in the older authorities. Re Dorster, 4 B. & S. 187, 199; Mayor, etc., of London v. Cox, L. R. 2 II. L. 239, 280; Worthington v. Jeffries, L. R. 10 C. P. 379, 380; Chambers v. Green, L. R. 20 Eq. 552, 556. See, also, Weston v. City Council of Charleston, 2 Pet. 449 [7 L. Ed. 481].”

It is thus seen that tbe rule is that “the defendant must have objected to the jurisdiction of the court at the outset, and he have no other legal remedy,” else it is not obligatory on an appellate court to grant the writ. If applicant had desired to contend that articles of the Code defining and punishing keepers of bawdyhouses and disorderly houses repealed by implication subdivision “j” of article 634 defining and punishing vagrancy, the proper place for her to have presented such plea was in the corporation court when the complaint was filed, and given that court an opportunity to rule thereon, for that court had jurisdiction to entertain such plea after the complaint was filed; but she did not do so. Again, as she' did not file that plea in the corporation court, and after trial and sentence voluntarily appealed tlie case to the county court, when the case was'called, if she desired to enter that plea, she should have then filed it, and given the county court an opportunity to rule thereon. This she did not do, and for the first time, in this court, in the brief filed, she asks us to prohibit the county court from proceeding further without knowing or seeking to ascertain what the ruling of the county court would be if she had filed that plea in that court. In our opinion, even if we'should be of the opinion that articles of the Code defining and punishing keepers of bawdyhouses and houses of prostitution repealed subdivision “j” of article 634 defining and punishing vagrancy, the application is prematurely brought, for the county court should have been given an opportunity to rule on that question before asking us to prohibit it from proceeding further in the premises. We cannot and will not presume, in advance of the ruling by that court, that it will rule wrongfully when the question is presented to it. At least until the county court has ruled on the question, she has not exhausted her legal remedies, and all the authorities hold, so far as we have been able to ascertain, that a writ of prohibition will not issue until it is made to appear that the applicant has no other legal remedy, or that by seeking the legal remedy she will suffer irreparable injury.

But had this question been presented to the county court, the writer is unwilling to hold at this time that articles 496 and 500 repeal by implication subdivision “j” of article 634. We perhaps have not given it that consideration we would if the question was presented to us direct, not deeming it necessary to a proper disposition of the case. In the writer’s opinion subdivision “j” of article 634, in providing that all keepers of houses of prostitution are vagrants, was punishing a certain class of persons who pursued that as a business or occupation. Under it, it would not be necessary to prove that she was at that time the keeper of a particular house, but only that this was the character or line of business that she pursued to obtain her livelihood or living. It was her calling, trade, of vocation, and it was at this class of people the vagrancy statute was aimed. A similar question was discussed at length in Parshall v. State, 62 Tex. Cr. R. 190-194, 138 S. W. 759.

The bawdyhouse and disorderly house act was directed at the keeper of a particular house, and it is necessary to prove that the defendant was at the specific time named in the indictment the keeper of a particular house, and it was kept at the time alleged for the purposes denounced by the statute— not that this was the vocation, trade, or calling pursued to obtain a livelihood. Such person might be a lawyer, doctor, merchant, banker, or follow any other business or calling as his occupation or business, as a means of obtaining a livelihood, and yet be guilty under the act defining and punishing the keeper of a bawdyhouse or house of prostitution, if he was keeping, or was interested in keeping, a house at the time named for the purposes denounced by the statute. Such person, however, could not be convicted as a vagrant under the vagrancy statute, because that would not be his occupation or vocation in life — he would not be the character of person at whom the vagrancy statute is aimed. These are some of the reasons why the writer is of the opinion that neither article of the Code repeals the other, and, if it does not do so, there can be no question that applicant is not entitled to the writ, for the wording of the complaint makes it clear that she was prosecuted under the vagrancy statute, and not under the 'bawdyhouse or disorderly house statute, and the corporation court has jurisdiction if brought under the vagrancy statute. But, as hereinbefore stated, it is not necessary to decide in this case whether or not either provision of the Code by implication repeals the other, as that question was not presented to the corporation court, nor the county court, and for us to issue the writ prayed for would be improper and premature until the county court had passed on the question under the facts in this case. If the applicant should present this question to the county court, and' that • court overrules the plea, and when tried she is convicted, she can prosecute an appeal to this court, or, if the fine is in such an amount as would not permit an appeal, she can then present the question to this court by suing out a writ of habeas corpus, if she thinks one provision of the Code repeals the other. She would have ample legal remedies, and the application for the writ of prohibition is denied.

DAVIDSON, J.

If the vacation opinion or decision of Presiding Judge Prendergast and Judge Harper in the Pye Case (State ex rel. Booney v. Hamblen) 169 S. W. 678, is correct, the writ of prohibition should have been granted in this case. If their opinion in this case is correct, the Pye opinion is incorrect. I do not deem it of any avail to write further now. If the writ of prohibition is available in a criminal case, it can only be for the purpose of enforcing the jurisdiction of the Court of Criminal Appeals. The writ of prohibition was granted in Pye’s Case at instance of the state to prevent issuance of writ of habeas corpus and a hearing under it.In this cáse the writ was and is denied the accused on the ground she did not urge want of jurisdiction of the county judge before whom the case was pending before she applied to this court for the writ of prohibition. 
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