Ex Parte Hughes , 50 Tex. Crim. 614 ( 1907 )

Application for writ of habeas corpus was granted by Judge Henderson (a member of this court) and made returnable before the full court. Applicant was arrested for a violation of an ordinance of the City of San Antonio, prohibiting the sale of unused tickets, in that city, which ordinance reads, as follows:

"An ordinance restricting the sale of tickets, passes or other evidence of the right to travel on any railroad to duly authorized agents of the railroad company issuing or authorizing the issuance of same, and prohibiting the sale of all tickets, passes, or other evidence of the right to travel on any railroad by any other than duly authorized agents of the railroad company, or authorizing the issuance of same, and providing penalties for a violation of such ordinance, and to repeal an ordinance passed April 2 and approved April 5, 1900, entitled, ``An ordinance licensing and regulating the business of Ticket Brokers or Scalpers, and affixing penalties for its violation.'"

Be it ordained by the City Council of the City of San Antonio, Texas:

Sec. 1. It shall be unlawful for any person or persons, firm or corporation, or for any officer, agent or servant, or receiver of any corporation, for or in its behalf, now or hereafter engaged in the business of railroad ticket broker, or any other person or persons, with or without license therefor, in San Antonio, Texas, to sell, barter or transfer, for any consideration whatever, the whole or any part of any railroad ticket or tickets, pass or passes, or other evidence of the holder's right to travel on any railroad unless duly authorized to do so by the railroad or the receiver thereof issuing or authorizing the issuance of same, and unless such authority to sell same is in writing, duly attested by the corporate seal of such railroad company, or the signature of the receiver thereof, if any there be, of such railroad company, or by the signature of the officer whose name is signed upon the tickets or coupons or other evidence of the right to travel on same, which said agent may be authorized to sell."

It then provides a penalty for the violation of this ordinance, not less than $25, nor more than $100, for each and every offense.

The second section requires that the party having the right to sell these tickets, shall keep a certificate posted in a conspicuous place in his office, for the information of travelers.

In Jannin v. State, 42 Tex.Crim. Rep.; 51 S.W. Rep., 1126, it is held that the statute enacted by the Legislature of our State, of similar import was unconstitutional and void. The same question involved there is in this case, so far as the right to limit a party in selling or buying unused railroad tickets. That case has been followed by our Supreme Court in T. P. Ry. Co. v. Mahaffey, 11 Texas Ct. Rep., 858. These authorities are sufficient to show the illegality of the character of legislation set out in the ordinance, even when enacted by the State Legislature.

Section 2 of article 10 of the Constitution provides: The Legislature shall pass laws to regulate railway freight and passenger tariffs, and correct abuses and prevent unjust discrimination and excesses in the rates of freight and passenger traffic on the different railroads in this State, and to enforce the same by adequate penalties, and to the further accomplishment of these objects and purposes may provide and establish all requisite means and agencies invested with such powers as may be deemed adequate and advisable." This clause seems to indicate that the Legislature alone is invested with power to pass laws regulating passenger and freight tariffs, and to provide such agencies as may be necessary to carry out such legislative action and intent. We are of opinion that this does not contemplate a city here and there in the State shall be invested with power at the hands of the Legislature to regulate or control the selling or buying of railroad tickets within a city jurisdiction. That clause of the Constitution pertains to the general management of railroads in the manner specified. For instance, it might delegate its power to the Railroad Commission, or some general agency, but it cannot particularize special localities, such as municipal bodies; and transfer to them the power to regulate these matters. The Constitution has granted no such authority to the Legislature. On the contrary, it has expressly limited this matter to legislative action.

There are several interesting questions suggested for discussion; but under the Jannin and Mahaffey cases, supra, we deem it unnecessary to enter a discussion thereof. Those cases dispose of the real merits of this case, and are authority for holding the ordinance of the City of San Antonio invalid. The applicant is ordered discharged.

Relator discharged.

Henderson, Judge, absent.