Treadgill v. State , 160 Tex. Crim. 658 ( 1954 )

WOODLEY, Judge.

Ordinance No. 8941 enacted by the city council of the city of Houston, a Home Rule City, defines “fireworks” and declares their presence within the jurisdiction of the city a nuisance. Among other prohibitions, the ordinance makes it unlawful to sell fireworks of any description under penalty of a $200 fine.

Section 6 (a) of said ordinance provides that it shall be applicable and in force “throughout the territory of the City of Houston within its corporate limits.” Sec. 6(b) reads as follows:

“(b) This ordinance shall also be applicable and in force within the area immediately adjacent and contiguous to the city limits of the City of Houston and extending for a distance outside of the city limits for a total of five thousand (5,000) feet, and it shall be unlawful to do or perform any act in violation of this ordinance within such area of five thousand (5,000) feet outside the city limits; provided that this ordinance shall not apply within any portion of such 5,000 feet area which is contained within the territory of any other municipal corporation.”

Appellant Treadgill was convicted in the corporation court of the city of Houston under Sec. 6(b) of this ordinance for selling fireworks at his place of business located outside of but within less than 5,000 feet of the corporate limits of Houston. He appealed to County Court at Law No. 2 of Harris County where he was again convicted and assessed a fine of $105.00. From the conviction in the county court this appeal is prosecuted.

Section 5 of the ordinance provides a fine of $200 for the sale of fireworks. It does not authorize a fine in any lesser amount. This alone might call for a reversal of the conviction. Rutherford v. State, 79 Texas Cr. Rep. 605, 187 S.W. 481; Sumrall v. State, 104 Texas Cr. Rep. 485, 284 S.W. 957; Simmons v. State, 156 Texas Cr. Rep. 601, 245 S.W. 2d 254. Branch’s Ann. P.C., Sec. 642, p. 330.

Appellant, however, predicates his appeal upon the contention that the corporation court was without jurisdiction of this prosecution. He also attacks the ordinance for its attempt to prohibit by penal ordinance a lawful business by declaring such business to be a nuisance.

The state insists that the ordinance in question was validly enacted under Subdivision 19 of Art. 1175 R.C.S., by which statute and ordinance it is claimed that the corporate limits of the city were extended for a distance of 5,000 feet for the limited purpose named in the statute, and the jurisdiction of the corporation courts correspondingly increased. They answer appellant’s second contention with the assertion that fireworks are a nuisance per se, and the city council so properly found.

If the ordinance is invalid or if the corporation court was without jurisdiction, the prosecution must be dismissed.

The statutes defining the jurisdiction of corporation courts are:

Art. 1195, R.C.S.: “A corporation court shall have jurisdiction loithin the. territorial limits of the city, town or village, in all criminal cases arising under the ordinances of the said city, town or village, and shall also have concurrent jurisdiction with any justice of the peace in any precinct in which said city, town or village is situated in all criminal cases arising under the criminal laws of this State, in which punishment is by fine only, and where the maximum of such fine may not exceed two hundred dollars, and arising within such territorial limits.”

Art. 62, V.A.C.C.P.: “The corporation court in each incorporated city, town or village of this State shall have jurisdiction within the corporate limits in all criminal cases arising under the ordinances of such city, town or village, and shall have concurrent jurisdiction with any justice of the peace in any precinct in which said city, town or village is situated in all criminal cases arising under the criminal laws of this State, in which punishment is by fine only, and where the maximum of such fine may not exceed two hundred dollars, and arising within such corporate limits

Art. 1200 (c) V.A.C.S. provides for the establishment of two or more corporation courts in cities having a population in excess of 380,000. Sec. 2 of the act defines the jurisdiction of these courts as follows:

“Each of such corporation Courts, when established shall have and exercise concurrent jurisdiction within the corporate limits of the city establishing them, and such jurisdiction shall be the same as is now or hereafter may be conferred upon all corporation Courts by the General Laws of this State.”

Art. 1200(c) appears to be the latest expression of the legislature on the question of jurisdiction of the corporation court in which prosecution was instituted. It was enacted long after Art. 1175 R.C.S.

Sec. 19 of Art. 1175, R.C.S., under which the state urges that the limits of the city of Houston were extended so as to include the 5,000 foot strip for the limited purpose of prohibiting nuisances therein, reads as follows:

“Each city shall have the power to define all nuisances and prohibit the same within the city and outside the city limits for a distance of five thousand feet; to have power to police all parks or grounds, speedways, or boulevards owned by said city and lying outside of said city; to prohibit the pollution of any stream, drain or tributaries thereof, which may constitute the source of water supply of any city and to provide for policing the same as well as to provide for the protection of any water sheds and the policing of same; to inspect dairies, slaughter pens and slaughter houses inside or outside the limits of the city, from which meat or milk is furnished to the inhabitants of the city.”

In support of the theory that the corporate limits were extended for limited purposes, attention is directed to Art. 969b, V.A.C.S., providing for the acquisition of property outside the corporate limits and the exercise of police power within such territory by a city or cities in a county of 350,000 or more population; Art. 1183, V.A.C.S., providing for the extension of the limits of a city so as to include for limited purposes a 2500 foot strip along each side of the navigable stream upon which the city is located, for distances up to 20 miles; and Art. 1186, V.A.C.S., providing for the authority by criminal ordinances to police same.

It will be observed from a reading of these statutes that the legislature did not attempt to increase or add to the territory or change the limits of any Home Rule City (if in fact the state has the authority to do so). City of Houston et al v. State ex rel. City of West University Place et al, 171 S.W. 2d 203, reversed on other grounds, 176 S.W. 2d 928. The legislation referred to merely authorizes certain cities to extend their jurisdiction under certain conditions.

There is no language in the ordinance before us to indicate any purpose or intention on the part of the city council of Houston to extend the limits of the city so as to include the 5,000 foot strip for any purpose. On the other hand, the ordinance refers to this territory as being outside of the limits, and nowhere suggests that it is to be annexed or acquired for any purpose by the city.

It will be noted that Sec. 19 of Art. 1175, R.C.S., in addition to authorizing Home Rule Cities to define and prohibit nuisances outside the city limits (for a distance of 5,000 feet) also grants such cities the power to prohibit the pollution of any stream, drain or tributary thereof which may constitute the source of its water supply and this without limit as to distance from the city limits. To agree with the state’s construction of the statute would require a holding that the entire watershed of such a stream is a part of the city and that penal ordinances enacted by the city may be enforced in its corporation courts, though the act complained of occurred at a far distant point on the watershed.

Again, if the 5,000 foot strip adjoining the city limits of Houston was acquired and made a part of the city of Houston by Art. 1175, Sec. 19, R.C.S., and the ordinance here in question, then under the rule applied in City of Galena Park v. City of Houston, 133 S.W. 2d 162 (Civ. App., writ refused) construing Art. 1183 et seq., R.C.S., the territory would be a part of the city of Houston but only for the limited purpose of defining and prohibiting nuisances therein. It would enjoy no other benefits or advantages as municipal territory. It would, however, be ear-marked and reserved for future acquisition by the city of Houston, and exempt and immune from becoming a part of another municipality.

We conclude that the place where the sale of fireworks was alleged to have occurred was not within the limits of the city of Houston; that the corporation courts of said city therefore had no jurisdiction to try appellant for the offense charged and the county court at law of Harris County acquired none.

We express no opinion as to the power of the city of Houston to declare the presence of fireworks in the city or within 5,000 feet outside of the corporate limits a nuisance, or to abate or otherwise deal with such in a proper proceeding.

The judgment is reversed and the prosecution is ordered dismissed.