City of Wink v. Griffith Amusement Co.

78 S.W.2d 1065

Opinions

WALTHALL, Justice.

This case presents an appeal from an order of the district judge of Winkler county granting a temporary writ of injunction .restraining the city of Wink, its mayor' and recorder and other officers, agents, anil attorney, from enforcing a city ordinance of the city of Wink, until a final hearing is had, and the further orders of the court.

The record shows that on July 5, 1934, the board of commissioners of the city of Wink, a municipal corporation of less than 5,009 inhabitants, incorporated under the general laws of this state, with a commission form of government, passed the following city ordinance, approved by the mayor and duly published.

The ordinance reads as follows:

“Ordinance No. 44.

“A Public Safety Ordinance prohibiting prize drawings by lot in places of public entertainment, causing congestion of traffic and fire hazard.

“Be it ordained by the Board of Commissioners of the City, of Wink:

“Sec. 1. That it siiail be unlawful for any person, firm or corporation, either as owner, manager, operator, agent or employee, to have, give, permit, or allow any prize drawing, by lot, of any money or other thing of value, at any place of public amusement or entertainment in the City of Wink.

. “Sec. 2. That it shall be unlawful for any person, firm, or corporation to advertise that there will be any prize drawing of any money or other thing of value at any place of public amusement or entertainment in the City of Wink.

“See. 3. Any person violating this ordinance shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding ($100) One Hundred Dollars, and each day of violation shall be a separate offense.

“Sec. 4. In case of violation of this ordinance, the mayor may, if he deems it advisable, with a view to preserving the peace and good order- of the city, order and enforce the closing- of any place of public entertainment or amusement where this ordinance is being violated.

“Sec. 6. The fact that the drawing of prizes by lot in places of public amusement and entertainment causes great crowds to congregate in the public streets in the vicinity of such places of entertainment, blocking the sidewalks and streets, interfering with orderly traffic andi business, blocking the exits of such places of entertainment, jeopardizing .the lives of the people, and especially the children present in case of fire, creates an emergency and imperative public necessity, requiring that this ordinance take effect immediately as a measure for public safety, and this ordinance shall be in effect immediately from and after its publication one time in the Wink Times Herald.”

On July 31, 1934, the local manager of appellee was arrested on a warrant issued out of the corporation court of the city of Wink, charged with a violation of the ordinance at appellee’s theater building (designated as the Rig Theater), in the city of Wink. The local manager of the theater made an appearance bond, and on the day the case was set for trial, August 3, 1934, appellee presented its petition to the district judge praying for a temporary injunction, enjoining and restraining the city of Wink, its mayor and officers, from in any manner enforcing said ordinance.

Appellee’s petition explained its “Bank Night” scheme as follows: “On a certain night each week it will give thirty five dollars to any person present who has registered at the theatre; a number is drawn by the judges selected from the audience; that it is not necessary for the person who wins the prize to be actually in attendance in the theatre or to have ever purchased a ticket provided he registered his name in the book that was left open at the ticket window for the public to register their names; that there was no charge whatever made as a condition of registration; that this idea of holding bank night is a copyrighted idea that the plaintiff pays for, * • * and is a special means of advertising.”

In explanation of the eligibility of parties to the prize money, it is shown that to draw the prize the person whose name is called must be in the theater building or “within hearing on the outside.”

The appellant, city of Wink, and its mayor, answered by general demurrer, special exceptions, general denial, verified special denials as to some of the allegations in the petition; filed an amended original answer including therein its cross-bill, praying for a temporary injunction enjoining and restraining appellee from, holding its bank nights (prize drawings by lot) in the form and manner in which it had theretofore been holding same, and especially from using the sidewalks and streets in connection with its drawings, and from announcing the name of the winner of the prize drawing in front of its theater, thus causing crowds to gather there, congesting traffic, etc.

Opinion.

The pleading of appellee is sufficient, we think, to submit the question of the validity of the ordinance of the city of Wink sought to be enforced.

The ordinance in question, by its third section, provides: “Any person violating this ordinance shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding ($100.00) Oné Hundred Dollars, and each day of violation shall be a separate offense.”

Section 4 of the ordinance further provides that in ease of violation of the ordinance the mayor may, if he deems it advisable, order and enforce the closing of any place of public entertainment or amusement where this ordinance is being violated.

In the instant case, the city of Wink was undertaking to enforce the provision of provisional section of the ordinance, and we will confine our observation to that section.

Appellant refers us to article 3, § 47, of the State Constitution, which authorizes the Legislature to pass laws prohibiting the establishment of lotteries and gift enterprises in this state, and makes the contention that the business enterprise of appellee is but an evasion of the lottery laws of this state, enacted by the Legislature under the provision of the Constitution above referred to.

The ordinance passed by the city of Wink is a penal ordinance; especially section 3 of the ordinance sought to be enforced. It has become the settled law of this state that an ordinance of a city is invalid which provides a greater or less penalty than the state law for the same offense. El Paso Electric Company v. Collins et ux (Tex. Civ. App.) 10 S.W.(2d) 397, and cases there used; also the same case on appeal, opinion by the Commission of Appeals, 23 S.W.(2d) 295, in which it is held that the conflict in the penalty between the ordinance and the statute for the same offense renders the ordinance void as a penal law.

Article 654 of our Penal Code 1925, provides a penalty for establishing a lottery at a fine “not less than one hundred, nor more than one thousand dollars.”

The penalty provided by the ordinance for the same offense (lottery) is by fine “not exceeding ($100) One Hundred Hollars.”

For the reason stated, the ordinance must be held to be invalid and unenforceable, and it is so ordered.

The case is affirmed.