Ayres v. City of Dallas

25 S.W. 631, 32 Tex. Crim. 603, 1894 Tex. Crim. App. LEXIS 239

• Court: Court of Criminal Appeals of Texas
• Decided: March 10, 1894
• Docket: No. 246.
• Status: Published

Opinion

SIMKINS, Judge.

Appellant was convicted of unlawfully selling beer in the variety theater of one Andrews, in the city of Dallas, he, appellant, being then and there an employe of said Andrews; and he was find in.the sum of $20, from which he appeals.

It is admitted that the material allegations in the complaint are true; but it is insisted that the ordinance on which the conviction is based is illegal and void, because it makes penal acts and conduct not made such by the Penal Code of Texas, and that the city council has exceeded its power in passing such an ordinance. Not only under section 195 of the charter of the city of Dallas, approved March 13, 1889, is the city council authorized “ to locate and regulate variety theaters,” but under section 107 of the same charter express authority is conferred by the Legislature upon the city council “ to prevent the sale, bartering, or giving away of any intoxicating liquor in a variety theater, or any place where theatrical representations are given, and to prevent the said liquor from being brought into said places under any pretext whatever.” In pursuance of this authority, the city council passed an ordinance, approved September LI, 1893, for the purpose of “ regulating variety theaters, and prohibiting the sale, etc., of spirituous, vinous, or malt liquors in variety theaters or places where theatrical or other exhibitions are given.” This ordinance declares it to be unlawful for any proprietor, manager, or lessee of, or any person connected with, a variety theater or dramatic representation in which females are employed in any capacity, or are permitted to attend, to give away or sell intoxicating liquor, under a penalty of not less than $10 nor more than $200. The ordinance is further declared to have no application to entertainments at private residences, nor to beer gardens to which the public are admitted without charge.

We think there is no question that there is full authority for passing the ordinance in question. The right to regulate necessarily involves the right to prescribe and enforce the reasonable conditions and limitations under which variety theaters or dramatic representations may be conducted in the city of Dallas. The object of the power conferred by the charter and the purpose of the ordinance itself was not to punish an offense against the criminal law of the State, but to provide a police regulation for the enforcement of good order and peace within the limits of the municipal corporation. It is not a valid objection that the ordinance makes that act an offense which is not defined in the Penal Code of the State. In the preservation of the life, health, good order, and public morals, many acts not unlawful in themselves, or not defined nor punished by the Penal Code, may be prohibited by the ordinances, because, in the judgment and discretion of the corporate authorities, they are injurious to the general welfare of the city.

Ex Parte Bell, ante 308, has no application. There relator was charged with keeping a variety house, under an ordinance void for indefiniteness; and we further held, that if the variety theater was not a disorderly house, it could not be prohibited; but under whatever name the business was carried on, if it contained the elements of a disorderly house, it could be suppressed. In the case at bar the ordinance seeks to prevent the sale of liquor at public theaters in Dallas, and the authority to do so is expressly given by the charter.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.