Ex Parte J. Brewer

152 S.W. 1068, 68 Tex. Crim. 387, 1913 Tex. Crim. App. LEXIS 12

• Court: Court of Criminal Appeals of Texas
• Decided: January 15, 1913
• Docket: No. 2110.
• Status: Published

Opinions

HARPER, Judge.

— In the opinion of our Presiding Judge will be found a full statement of the issues involved. We thoroughly concur in that portion of his opinion in which he holds that the ordinance, if in conflict with any law of the State, is invalid, and we also concur with him in the holding that it is the settled law of this State that an ordinance is invalid which provides a greater or less penalty than the State law for the same offense, although on this latter proposition some eminent authorities assert to the contrary, but as stated by him, it has become the settled law of this State that the penalty for the violation of a city ordinance must be the same where it deals with the same offense made penal by the laws of the State. As the penalty affixed by this ordinance is not the same as that affixed by any State law, regulating pool rooms and billiard halls, it will not be necessary to discuss that feature of the case, but only to decide whether this ordinance deals with an offense already made penal by the laws of the State.

In the opinion of the Presiding Judge he states that as the court held, in Ex Parte Axsom, 63 Tex. Crim. Rep., 627, 141 S. W. Rep., 793, that the keeper of a pool room was a laborer, under Article 299 of the Penal Code, this would render this ordinance void, as the penalty affixed to the ordinance is different from that fixed by State law for violation of Article 299. In the Ex Parte Axsom case the relator testified: “I keep a pool hall in the City of Brownsville. I was so engaged on Sunday, the 27th day of February; I was at my place of business on said day managing and operating my pool room. I dusted off the billiard tables and did such other work as I am accustomed to do. A number of people played pool and billiards at my place of business on that day.” The court, we think, correctly held that under this testimony he was a laborer within the meaning of the Code. But in this case the ordinance does not seek to make these acts an offense. The ordinance deals with a different matter altogether. It requires that all persons shall keep their public pool halls or billiard halls, or a combination of both, closed from twelve o'’clock at midnight until five a. m. of each week day and from 12 o ’clock Saturday night until 5 o’clock a. m. of the following Monday of each week. It will be seen that this ordinance deals with the person owning or in control of a pool hall and requires him to keep his place of business closed during the hours named, and while it embraces from 12 o’clock Saturday night until five a. m. Monday morning (which includes Sunday), it also deals with all other days of the week and requires the pool hall to be kept closed from 12 o ’clock at night until 5 a. m. next morning.

In the Axsom case we were dealing with the man who said he was present, running the pool hall, dusting the tables and doing all the work necessary and usual to be done in running the pool hall on Sunday, and this was the offense denounced by Article 299. The offense defined by this ordinance is keeping the doors closed during certain hours during every day of the week. They are not the same offense, and therefore the penalties need not be the same. We have no State law, fixing the closing hours of pool room and billiard halls, — the laws of the State do not deal with this matter. The laws of the State do fix the hours for closing of saloons, and they are fixed at from “twelve o’clock midnight until five o’clock a. m. of each week day, and from twelve o’clock midnight Saturday night until five o’clock a. m. of the following Monday (Art. 615 P. C.). This has been held to be a reasonable regulation, and no one has contended that it is in conflict with Article 299 or any other article of the Code, and if this provision of the law in regard to retail liquor dealers’ is not in conflict with the other articles of the Code, we can not appreciate the reasoning that would render the same law as regards pool rooms and billiard halls in conflict with other articles of the Code. In passing the ordinance, the City of Dallas copied almost the exact language of the Code in fixing the closing hours of saloons, and applied it to billiard halls and pool rooms, and it did fix the same hours.

The Legislature in fixing the hours of closing of saloons made that a separate and distinct offense, — to permit the place to be open. In the same article they also make it an offense to sell, and if a saloon-keeper permits his place to be open during the prohibited hours and sells, he is guilty of two distinct offenses and may be prosecuted and convicted of each. So in this case, if a man, a keeper of a pool hall, permits his place of business to be open during the prohibited hours, he may be prosecuted and convicted of that offense under the city ordinance; and if these hours should be on the Sabbath, the man who “manages and operates the pool hall, dusts off the tallies, and such other work as is customary and necessary” in such work may also be prosecuted and convicted for laboring on the Sabbath, — the laws of the State and city having made it two offenses. There is no inhibition in the Constitution or laws of this State, which will prevent the city from dealing with a. matter with which the State laws do not deal where the police power is conferred upon the city, and the State, in its laws, having fixed no hours of closing for pool halls, it being a subject of regulation, such hours may be regulated.by the city within reasonable limits. Of course, as the State licenses pool, and billiard halls, if a city should seek, by this means, to prohibit them entirely, such ordinances would be invalid. The regulations must be reasonable, and not unnecessarily impair the right given by the State under the license issued. Are the hours fixed, in which pool halls must remain closed, unreasonable? Experience has shown that during the hours between midnight and daylight were the hours in which the lawless element, to a great extent, would gather in and around saloons and breed crime, consequently the Legislature, in the exercise of the police power, closed the saloons during those hours. Since the saloons have closed, these elements have gathered around pool and billiard halls in the cities, and the same reasoning, perhaps, which caused the Legislature to close the saloons during these hours, would move the legislative bodies of the cities and towns to close the pool and billiard halls during the same hours. As held by this court in Ex Parte Patterson, 42 Texas Crim. Rep., 256, such regulations must be reasonable, but when reasonable, and not prohibitory, or too restrictive, cities are authorized to adopt such regulations. In that case it is said, “that not only the State itself, but counties and cities” are authorized to raise revenue thereform, but this did not deprive the .cities of the power to regulate them, within reasonable bounds. The question of the right of a city to adopt reasonable regulations in regard to all matter subject to the police power has been so frequently before this court and so exhaustively discussed we do not deem it necessary to do so here, but merely cite some of the decisions, wherein it is expressly held that a right of the city authorities to adopt such regulations, so long as they are reasonable, are upheld, and wherein it is held, that if such ordinances do not amount to virtual prohibition, they are not in conflict with the laws of the State licensing such occupation. Garonzik v. The State, 50 Texas Crim. Rep., 533; Levine v. The State, 46 Texas Crim. Rep., 364; Williams v. The State, 52 Texas Crim. Rep., 371; Ex Parte Abrams v. The State, 56 Texas Crim. Rep., 465; Ex Parte King, 52 Texas Crim. Rep., 383. Our Court of Civil Appeals in the case of Cohen v. Rice, 101 S. W. Rep., 1052, also upheld a similar law, and held that reasonable regulation of a business of this character was not in violation of the law levying occupation taxes, and that the Legislature had the authority to confer this power upon city governments. In this case a writ of error was refused by our Supreme Court, so that it may be said that all our civil courts and this court are agreed on the authority of the Legislature to confer the police power upon the city governments, and so long as they exercise that power in a reasonable manner, the ordinances will not be held invalid as being in conflict with the occupation tax laws or any other laws. In all the cases cited will be found numerous authorities quoted, and we deem it unnecessary to cite them here. Our Presiding Judge, who dissents in this case, has dissented from the opinions heretofore rendered on these questions as will be found by referring to those herein cited, but his views on these questions are contrary to the views held by our Supreme Court, the Court of Civil Appeals, and all the other members of this Court, and we think, are against the great weight of authority. Mr. Dillon, who is recognized as an author of ability, learned in the law, in his work on Municipal Corporations, says:

“Many of the powers exercised by municipalities fall within what is known as the police power of the State, and are delegated to them to be exercised for the public good. Of this nature is the authority to suppress nuisances, preserve health, prevent fires, to regulate the use and storing of dangerous articles, to establish and control markets, and the like. These and other similar topics will be considered in appropriate places. But it may here be observed that every citizen holds his property subject to the proper exercise of this power, either by the State legislature directly, or by public or municipal corporations to which the legislature may delegate it. Laws and ordinances relating to the comfort, health, convenience, good order, and general welfare of the inhabitants are comprehensively styled ‘Police Laws or Regulations.’ It is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure. The citizen owns his property absolutely, it is true; it cannot be taken from him for any private use whatever, without his consent, nor can it be taken for any public use without compensation; still he owns it subject to this restriction, namely, that it must be so used as not unreasonably to injure others, and that the sovereign authority may, by police regulations, so direct the use of it that it shall not prove pernicious to his neighbors, or the citizens generally. These regulations rest upon the maxim, Salus populi suprama est lex. This power to restrain a private injurious use of property, is essentially different from the right of eminent domain. It is not a taking of private property for public use, but a salutary restraint on a noxious use by the owner, contrary to the maxim, Sic utere tuo ut alienum non laedas.” See. 301, p. 553, Vol. 1, Dillon on Municipal Corporations. And in. Sec. 731 he says, establishments where billiards and pool tables are kept are proper and appropriate subjects for regulation in the exercise of the police power under delegated authority to a municipal corporation. Again, in Sec. 672, Mr. Dillon says: 'Under a general power v granted to a city, its council may, by ordinance, prohibit saloons, restaurants, etc., and other places of public entertainment to be kept open after ten o’clock at night. The contention that such ordinance was unreasonable and deprived a citizen of his constitutional rights, was not considered well taken. Under these sections will be found cited many authorities, and by reference to them it will be seen that this is not only the rule in this State, but is the law in almost every State in the Union.

There can be no doubt that the Legislature, in granting a special charter to the City of Dallas (Acts of 1907 as amended by Act of 1909, — see special laws passed by the 30th and 31st Legislatures) granted to it authority to regulate billiard and pool halls within its limits, and gave to said city all power to enact police regulations in regard thereto, which the Legislature itself possessed, and under the authority thus granted, the City of Dallas was authorized to enact and enforce the ordinance closing pool halls from 12 o’clock at night until 5 o’clock next morning. The Act further requires that we shall take judicial notice of all the powers conferred, and in the charter will be found ample authority for the city to enact the ordinance, and as it is not in conflict with any State law, the relator is remanded.

Relator remanded to custody.