Ex Parte, Graham

This is an appeal from the order of the court refusing to discharge the relator on a habeas corpus hearing.

The question involved is the power of the city of Matador, by ordinance, to declare one guilty of a panel offense who, being the owner and custodian of any chicken or other fowl, shall permit them to run at large within the corporate limits. The city of Matador was incorporated under the general provisions applying to cities and towns in Title 22 of the Revised Civil Statutes of 1911.

As supporting the ordinance, reference has been made to Articles 764, 859, and 860 of the Civil Statutes of 1911. The article first mentioned confers upon the city government the authority to "ordain and establish such acts, laws, regulations, and ordinances, not inconsistent with the Constitution and laws of this State, as shall be needful for the government, interest, welfare and good order of said body politic."

Article 859, supra, confers the power to "prevent, regulate and control the driving of cattle, horses and all other animals into or through the city."

Article 860, supra, reads thus:

"To establish and regulate public pounds, and to regulate, restrain and prohibit the running at large of horses, mules, cattle, sheep, swine, goats, and to authorize the distraining, impounding and sale of the same for the costs of the proceedings and the penalty incurred, and to order their destruction when they can not be sold, and to impose penalties on the owners thereof for a violation of any ordinance."

Conceding that the term "animal" includes a chicken, the applicability of Article 859, supra, is not perceived, for the reason that it relates to the driving of animals through a city. Article 860, supra, cannot, in our judgment, be held authority for the ordinance in question for the reason that the power therein conferred relates to the restraint of certainnamed animals and not to others. A municipal corporation such as the one under consideration, exercises only those powers which are granted either by the Constitution or the statute. See Mantel v. State, 55 Tex.Crim. Rep., 31 Amer. St. Rep. 818; Pye v. Peterson, 45 Tex. Rep. 312; Dillon on Municipal Corporations, 5th Ed., Vol. 2, Art. 620. From the enactment of Article 860, supra, it seems that in contemplation of the Legislature, the authority to prohibit animals from running at large was one not embraced within the general welfare power contained in Article 764. If this assumption be correct, then Article 860 must be treated as specific legislation upon the subject of animals running at large, and constructed as restricting the power of the city to those animals which are named in that statute. See authorities, supra; also Blankenship v. City of Sherman, 76 S.W. Rep. 805. Even if the general welfare clause embraced in Article 864 was not modified by the express authority with reference to animals contained in Article 860, we entertain the opinion that unless the running at large of chickens could be regarded as a nuisance or in some way inimical to the public health or good order of the city, that it could not be supported by Article 764. The ordinance does not purport to declare the act prohibited a nuisance; nor do we understand it to be a nuisance per se. See Ex parte Robinson, 30 Tex.Crim. App. 493; Ex parte Glass, 49 Tex. Crim. 87; Ex parte Botts, 154 S.W. Rep. 221; Ex parte Neill,32 Tex. Crim. 275; Ex parte Harris, 97 Tex.Crim. Rep.; Ruling Case Law, Vol. 20, p. 389; Wood on Nuisance, Vol. 2, p. 977. It is conceived that the keeping of chickens might, under some circumstances, be injurious to the public health or otherwise come within the police power delegated to the city by Article 764, but it is not believed that it warrants the city, by penal offense against the owner, to prohibit chickens from running at large.

For that reason the judgment is reversed and the appellant ordered discharged.

Reversed and Appellant Discharged.