Ex Parte Powell , 43 Tex. Crim. 391 ( 1902 )

This is an original proceeding by habeas corpus, the writ having been granted by this court. Relator was arrested by the city marshal of Beaumont, under section 1 of an ordinance of that city prohibiting what is called a "turf exchange," which is defined in said ordinance as the selling of pools on horse-racing. The same prohibits the sale of pools on horse-racing within the limits of the city of Beaumont, and makes the person violating such ordinance guilty of an offense subject to a fine of not less than $100 nor more than $200, and each day is made a separate offense. The complaint charged relator with violating this ordinance, and he was arrested on a warrant therefor, and sued out the writ of habeas corpus, as before stated.

Relator claims that horse-racing is not an offense within this State nor is betting thereon, and consequently neither is pool-selling on horse-races; that is, as we understand it, a place where bets are made can not be made an offense by municipal ordinance in the absence of an express or clearly implied grant of power in the charter authorizing the mayor and council to create the same an offense; and he contends there is no such authority for the ordinance. He further contends, if there was such grant of power by the Legislature, it would be violative of section 28 of article 1 of the Bill of Rights, which provides that no power of suspending laws in this State shall be exercised, except by the Legislature. The city contends that the charter grants the power to the city council to pass such an ordinance, and that this is not inhibited by said section of the Bill of Rights. We quote the portions of the charter invoked on behalf of the city, as follows: Section 33 of the charter provides: "The city of Beaumont shall have the right by ordinance duly passed by the city council to exercise such powers as may be necessary under the State law, for the following purposes:" Among other things, "To suppress gambling houses and to punish keepers of gambling houses and pool-sellers and all persons who play at cards or games of any kind, and punish persons who sell lottery tickets, and who advertise lottery drawings or schemes, or the results of the drawings of lotteries." And again, toward the close of said section: "And generally, to make and establish all rules, regulations, by-laws, and ordinances which may contribute and promote the better administration of the officers of said city, as well as for the maintenance of the peace and tranquillity of said city, and for the protection of the persons and property of its inhabitants." Section 85 reads: "Nothing herein contained shall ever be construed to in any manner suspend, modify, or abridge any penal laws of this State, but the penal laws of this State shall ever be in full force and effect and in no manner repealed or suspended by any provision of this act; but the council may enact any ordinance within the limitations hereto provided not in conflict with the penal laws of this State."

We understand it to be conceded that horse-racing is legal, and betting thereon is lawful in this State. Dunham v. Strother,1 Tex. 91; Walker v. Armstrong, 54 Tex. 615 [54 Tex. 615]. Moreover, pools, or the sale of bets on horse-racing, is legalized by the occupation tax act of 1897 (Acts Twenty-fifth Legislature, Special Session, page 51, subdivision 18), which provides: "From any person or persons who shall sell pools on horse-races or other contests, five dollars for each and every day they may so sell said pools." In this connection, section 71 of the charter of the city of Beaumont authorizes the city council to levy and collect an occupation tax on all occupations taxed by the State, the tax to be one-half the occupation tax levied by the State.

Now, the question presented is, the occupation of pool-selling being one authorized by the general laws of the State, and from which it derives a revenue, does the charter granted by the Legislature to the city of Beaumont authorize the municipal council of said city to prohibit the pursuit of said occupation within the city limits? We understand the authorities to hold that the municipality can only exercise such powers as are granted it by the sovereign power; that is, the State. In construing these powers, the courts will adopt a strict rather than a liberal construction, and the doctrine is that only such powers and rights can be exercised under charters as are clearly comprehended within the words of the grant or derived therefrom by necessary implication. And of course such a rule will not be relaxed where the purpose is to repeal a State law. Flood v. State, 19 Texas Crim. App., 584; Ex parte Garza, 28 Texas Crim. App., 382; Ex parte Robertson, 30 Texas Crim. App., 493. Now, to hold that the provisions of the charter heretofore referred to and copied would authorize the city council of Beaumont to repeal the State law within its limits, and to make a vocation, elsewhere lawful, unlawful therein, would require us to reject at the very outset a clause in the beginning of section 33 of the charter, to the effect that the city could pass the following ordinances, under the State law; that is, as we understand it, in consonance or in accordance with the State laws. It is evident that if the city is authorized to suppress pool-selling or horse-races by the subsequent language used, it must do so not in consonance with but in contravention of the State law on the subject. Now, it will be noted that the inhibition of pool-selling is not selling pools on horse-racing, but the prohibition is in general terms. A pool has been defined to be the combination of stakes, the money derived from which goes to the winner. Commonwealth v. Ferry, 146 Mass. 203. Pool-seller is one who sells pools on any event, as horse-races, boat-races, elections, etc. A pool ticket is a ticket entitling the holder to a share in the proceeds of a pool. And a pool room is one in which pools on races, etc., are sold. Cent. Dict. Now, we understand, if there is an apparent conflict in the authority granted and the State law on the subject, it is our duty to reconcile that conflict if it can be done and to apply the law to those things which the municipality can prohibit without the repeal of the State law on the subject. As is evident there are many things on which pools can be sold besides horse-races, the authority granted would only relate to such pools as are not authorized under the laws of this State. This would be giving due weight to the authority of the council to inhibit certain things in accordance with the law of the State; and especially is this construction manifest by the connection in which the pool-selling is prohibited, because we find it, in connection with a number of things which are illegal under the laws of the State, as gambling, etc. We do not deem it necessary to go further and endeavor to enlarge the powers of the municipality under the "general welfare" clause of said section, which has been invoked, because if it is a correct principle that the power to enact the law must be clearly expressed or necessarily implied in the charter, we do not believe it would be a safe or sound doctrine to invoke the authority claimed, under a general power to do anything which may appear to the council to be for the peace and good order of the municipality. A special authority granted in the preceding part of the section could not be thus enlarged. Nor in the view we have taken, do we deem it necessary to discuss the power of the Legislature to authorize the mayor and city council of Beaumont to suspend a State law under section 28 of the Bill of Rights. The charter itself inhibits the suspension or nullification of any penal statute of the State. Section 85 of the charter. And whether the grant of authority by the Legislature to the municipality to make something an offense within the city limits which can be legally pursued outside the city limits, is violative of said section of the Constitution, is not necessary for us to here determine. Because in our opinion there is no grant of power or authority in the charter to prohibit pool-selling on horse-races, the relator is ordered discharged from custody.

Relator ordered discharged.