Royer v. Ritter , 1975 Tex. App. LEXIS 3426 ( 1975 )

DIES, Chief Justice.

By ordinance dated April 1,1975, the City Council of the City of Beaumont prohibited package stores within the city limits from engaging in business on four days (New Year’s Day, July 4th, Labor Day, and Thanksgiving Day) when, under the Texas Liquor Control Act, they would be authorized to operate; and on other days the ordinance requires that package stores close at 8 P.M. when the Texas Liquor Control Act permits them to remain open until 9 P.M.

Suit was filed below by various individuals to declare the ordinance void. The relief sought was denied and now the plaintiffs below seek review of such judgment.

Five distinct provisions in the Texas Liquor Control Act grant cities regulatory power over alcoholic beverages:

a. Tex.Penal Aux.Laws Ann. art. 666-15 (1974) authorizes counties as well as cities to collect from permit holders a fee equal to one-half of the state fee for the particular permit involved.

b. Tex.Penal Aux.Laws Ann. art. 666-24 (1974) authorizes a city to prohibit the sale of liquor in a residential section or any part thereof.

c. Tex.Penal Aux.Laws Ann. art. 666-25a (1974) authorizes counties and cities to prohibit the sale of alcoholic beverages within 300 feet of any church, public school, or public hospital.

d. Tex.Penal Aux.Laws Ann. art. 667-10½ (1974) authorizes incorporated cities and towns to regulate the sale of beer within the corporate limits of the cities by charter amendment or by ordinance.

e. Tex.Penal Aux.Laws Ann. art. 666— 25(d) (1974) authorizes counties with a population under 300,000 and cities in counties with a population under 300,000 to adopt the hours of sale for mixed beverages authorized for counties with a population of 300,000 or more.

It is a familiar rule of statutory interpretation that an “exception” makes plain the intent that the statute should apply in all cases not excepted. Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56, 60 (1932). This may be also stated as the rule expressio unius est exclusio alterius — the inclusion of the specific limitation excludes all others. Harris County v. Crooker, 112 Tex. 450, 248 S.W. 652, 655 (1923); State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238, 241 (1943); Amdel Pipeline, Inc. v. State of Texas, 530 S.W.2d 647 (Tex.Civ.App.—Beaumont 1975, writ pending).

The Legislature, by granting to the cities power of control in the five instances above set forth, has, under these authorities, denied this power in any instance not specified. There is no authority in the Texas Liquor Control Act for the Ordinance under review.

Furthermore, this Ordinance is inconsistent with the Act. It is true that the Legislature stated when package stores are not to be open, rather than the converse. But this is merely one way of stating when they may be open. When the Beaumont Ordinance adds to the times they must be closed, the Ordinance is inconsistent with the statute. Any other reasoning would strain the plain credulity of language.

No ordinance can be legally enacted by the governing body of a city which conflicts or is inconsistent with the statute. Zachry v. City of San Antonio, 157 Tex. 551, 305 S.W.2d 558, 561 (1957); Berry v. City of Fort Worth, 132 Tex. 599, 124 S.W.2d 842 (1939); City of Corpus Christi v. Unitarian Church, 436 S.W.2d 923, 927 (Tex.Civ.App., Corpus Christi 1968, writ ref’d n. r. e.); Tex.Const. art. XI, § 5; Tex.Rev.Civ.Stat. Ann. art. 1165 (1963).

See also: Prescott v. City of Borger, 158 S.W.2d 578, 581 (Tex.Civ.App., Amarillo 1942, writ ref’d); City of Fort Worth v. McDonald, 293 S.W.2d 256 (Tex.Civ.App., Fort Worth 1956, writ ref’d n. r. e.); Combined American Ins. Co. v. City of Hillsboro, 421 S.W.2d 488 (Tex.Civ.App., Waco 1967, writ ref’d n. r. e.).

Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex.1968), tells us to “take statutes as [we] find them.” That we should search for the intendment of a statute, finding “its intent in its language, and not elsewhere. They [the courts] are not the law-making body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.”

If the Legislature had intended for the City Council to have the authority to extend the time of closing or opening of package stores from the state provision, it could have said so. Having failed to do so, we believe they (the Legislature) intended the provision for closing in the act to be statewide and exclusive. See Munoz v. City of San Antonio, 318 S.W.2d 741 (Tex.Civ.App., San Antonio 1958), writ dism. w. o. j., 159 Tex. 436, 321 S.W.2d 573 (1959). See also Davis v. Coffee City, Texas, 356 F.Supp. 550 (E.D.Tex.1972).

The judgment of the trial court is reversed and the cause rendered. The Ordinance of the City Council of Beaumont herein referred to is declared to be void and of no force and effect.

Reversed and rendered.