L. W. Flood v. The State, 19 Tex. Ct. App. 584

Willson, Judge. The city of Tyler was incorporated under the general incorporation act, title XVII of the Revised Statutes, and its city council, under

article 391, Revised Statutes, is clothed with the power “ to close drinking-houses, saloons, bar-rooms, beer-saloons, and all places or establishments where intoxicating or fermented liquors are sold, on Sundays, and prescribe hours for closing them, and also all places of amusements and business.”

Article 186 of the Penal Code makes it a penal offense for any merchant, grocer, or dealer in wares or merchandise, or trader in any lawful business whatever, to barter or sell on Sunday, etc. The city council of Tyler enacted an ordinance which in substance allows a merchant, etc., to sell goods, etc., on Sunday before 9 o’clock A. M. and after 4 o’clock P. M. This ordinance is in direct conflict with

article 186 of the Penal Code, above cited. Did the city council have the authorit)' to enact this ordinance, and thereby abrogate in part the penal statute cited? This is the single question presented in this case. Whatever power the council had must be derived from and measured by the city charter. A municipal corporation, like all other corporations, derives its powers from legislative grant, and can do no act for which authority is not expressly given, or may not be reasonably inferred. (1 Dillon, Munic. Corp., §§ 89-91, and notes; Bryan v. Page, 51 Texas, 532.) It is contended by appellant’s counsel that-

article 391 of the Devised Statutes, above quoted, and which, as before stated, is incorporated in and a part of the charter of the city of Tyler, does confer upon the council of said municipality the power to enact the ordinance in question. Ho other authority for such power is claimed than said

article 391, nor is such authority to be found in any other provision of the charter. How what power is granted by

article 391? It is to close drinking-houses, etc., where liquors are sold on Sundays, and prescribe hours for closing them. This is all the power conferred. It certainly does not expressly confer the power to permit the sale of goods, etc., in violation of the State penal law. It confers no power whatever to regulate in any manner the sale of goods on Sunday. It has no reference to that subject. The penal statute relates expressly and exclusively to the sale or barter of goods, etc., on Sunday. It does not prohibit the keeping open of the establishments where such sales are made.

It is not an offense under the statute to keep open on Sunday a drinking-house, bar-room, beer-saloon, etc. Such establishments may be kept unclosed during the whole of Sunday without violating any law of the State. The State, by its legislation, leaves the municipal governments to regulate that matter, and gives them the power, if they see proper to use it, to close these establishments on Sunday, and to prescribe the hours of closing. It cannot be reasonably contended that

article 391 of the charter impliedly authorizes the city council to legislate as to the sale of goods, etc., on Sunday. There is not a word in the

article which would, in our opinion, justify such implication. In construing the powers of a corporation, whether public or private, the courts adopt a strict rather than a liberal construction, holding 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 in case of ambiguity or doubt arising out of the terms used by the Legislature, such must be resolved against the power. (1 Dillon, Munic.

Corp., p. 118 and note 3.) Applying this rule of construction to the charter of the city of Tyler, it nowhere by its words expressly or by necessary implication empowers the council to enact the ordinance in question. It follows, therefore, that the ordinance is ultra vires and void. This view is in conflict with the decision in Craddock v. The State, 18 Texas Ct. App., 567. In that case, however, the precise question we have discussed here was not presented, and did not occur to the court. We are now convinced that in that case we erred in holding that

article 891 conferred any authority to permit sales on Sunday, and that decision is therefore overruled. Again, the ordinance in question is invalid, we think, upon another ground. It is in direct conflict with the penal statute. (Penal Code, art. 186; Amended Gen’l Laws 18th Leg., p. 66.) An ordinance, to be valid, unless special legislative authority be given for its enactment, must not conflict with a statute, but must conform to the laws of the State. (1 Dillon, Munic. Corp., § 319; Augerhoffer v. The State, 15 Texas Ct.

App., 613.) As we have seen, the ordinance in question was not authorized by any legislation, either general or special. We deem it unnecessary to discuss several questions which were discussed before, and determined by, the learned trial judge, and which have been ably presented to this court by the brief and argument of appellant’s counsel. We find in the record the conclusions of fact and of law of the learned judge who tried the case, an'd in his conclusions of law he shows lucidly and convincingly the invalidity of the ordinance. Deferring to said ordinance he saj's: “The ordinance is a peculiar one.

It does not provide for the closing of houses, nor prescribe hours for closing them. It provides no penalty. It is a grant of license to do that which is forbidden by the Penal Code, and not a penal regulation or restraint. It is manifestly intended directly to repeal

article 186 of the Penal Code and the amendment thereto, in so far as said

article applies to the city of Tyler, as to sales made before 9 A. M. and after 4 P. M. on Sundays. Hence I conclude that the said ordinance is not valid, because not authorized by said

article 391 or by title XVII of the Devised Statutes.” We are clearly of the opinion that this conclusion of the learned judge is correct. With respect to other conclusions of law arrived at by the judge and incorporated in the record, we express no opinion, as the above conclusion, in which we concur, disposes finally of the case. The judgment is affirmed.