
    Ex parte TAYLOR.
    (No. 9788.)
    Court of Criminal Appeals of Texas.
    June 15, 1927.
    1. Intoxicating liquors <&wkey;l6(2) — Municipal corporation, acting within charter and constitution and consistently with statutes, may reasonably regulate liquor traffic.
    Municipal corporation, not transcending constitutional limits, and acting within charter powers, may reasonably regulate liquor traffic, if such regulations are not inconsistent with statute.
    2. Habeas corpus <&wkey;85(l) — On habeas corpus, court may not assume, in absence of*charter, that charter contains provisions as to regulating liquor traffic more extensive than statutes (Pen. Code 1925, arts. 666-674; Rev. St. 1925, arts. 961-1164; Home Rule Amendment to Constitution [see Rev. St. 1925, art. 1165 et seq.]).
    In habeas corpus by one held for violation of city ordinance regulating liquor traffic through sale of Jamaica ginger manufactured according to formula prescribed in United States Pharmacopeia, recognized by Pen. Code 1925, arts. 668-674, and federal statutes,- as lawful medical preparation, though, if sold as beverage, prosecution might be for felony, under Pen. Code 1925, arts. 666, 667, it cannot be assumed, in absence of charter, that city’s charter powers contain provisions on regulating liquor traffic more extensive than those in general laws, in view of Rev. St. 1925, arts. 961-1164, enumerating cities’ powers and Home Rule Amendment to Constitution (see Rev. St. 1925, art. 1165 et seq.).
    3. Intoxicating liquors <&wkey;>!3l — Sale of Jamaica ginger as beverage might be'felony, but sale as medicine is not unlawful (Pen. Code 1925,. arts. 666-674).
    Sale of Jamaica ginger as beverage might be felony, under Pen. Code 1925, arts. 666-, 667, but its sale as medicine would not be unlawful, under arts. 668-674.
    4. Intoxicating liquors <&wkey;>IO(2) — In absence of authority shown by city charter, law does not authorize municipal corporation to regulate liquor traffic by requiring physician’s prescrip, tion for sale of “Jake” or Jamaica ginger (Pen. Code 1925, arts. 666-694).
    In absence of authority shown by city charter, and in view of Pen. Code 1925, arts. 666-694, regulating sale of intoxicating liquor, municipal corporation may not, by ordinance, require physician’s prescription for sale of “Jake” or Jamaica ginger.
    Original application by O. O. Taylor for a writ of habeas corpus.
    Relator ordered discharged.
    C. O. McDonald, of Wichita Ealls, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for appellee.
   MORROW, P. J.

This is an original ap- . plication for a writ of habeas corpus.

The validity of an ordinance is attacked upon several grounds.

In section 1 it is made unlawful to deal in, sell or keep for sale, within the city of Wichita Falls, any extract or tincture known as “Jake,” unless the person or corporation shall register his name and place of business with the city clerk.

In section 2 it is provided that a sale of such article is prohibited, except upon prescription by a licensed physician.

In section 3 it is required that dealers in said article shall keep a book registering the names, addresses, and places of abode of the doctors issuing the prescriptions; also the names of the purchasers, and the date and hour of sales. It also requires the keeping of files of prescriptions issued. All of said documents must be kept open to inspection by the police officers of the city of Wichita Falls.

Section 4 reads as follows:

“Nothing in this ordinance contained shall be construed as applying to sale of Jamaica ginger made by wholesale dealers to duly authorized and licensed retail dealers within the city of Wichita Falls. Nothing in this ordinance contained shall be construed to apply to the sale of the herb of Jamaica ginger in its natural form.”

Section 7 prescribes the penalty in a sum not to exceed $100.

Section 8 is an emergency clause, declaring that an emergency exists because “Jake” is being sold and used as a beverage producing intoxication.

According to the agreed statement of facts, the relator sold a two-ounce bottle of double-strength Jamaica ginger, U.S.P., for medicinal purposes to E. S. Richardson. ■ It was agreed that this sale was made without compliance with the terms of either sections 2 or 3 of the ordinance in question; in other words, the regulations touching the prescriptions, registrations, etc., prescribed in those sections were not observed.

Relator, in the court below and here, claims that the ordinance is violative of certain constitutional provisions; that it is unreasonable and oppressive, and places undue burdens upon a lawful business; and that it is in conflict with the statutes of this state prohibiting the traffic of intoxicating liquors.

There are judicial declarations giving sanction to the regulation of the traffic in nonintoxieating liquors as contributing to the effective prohibition of intoxicating liquors. See Huth v. United States (C. C. A.) 295 F. 35; Purity Extract & Tonic Co. v. Lynch, 229 U. S. 192, 33 S. Ct. 44, 57 L. Ed. 184; Claunch v. State, 82 Tex. Cr. R. 355, 199 S. W. 483; 19 Ruling Case Law, p. 841, § 146.

A municipal corporation, when not transcending constitutional limits and acting within its charter powers, may make reasonable regulations with reference to the traffic in liquor. See Cohen v. Rice (Tex. Civ. App.) 101 S. W. 1052; Williams v. State, 52 Tex. Cr. R. 371, 107 S. W. 1121; Ex parte Abrams, 56 Tex. Cr. R. 465, 120 S. W. 883, 18 Ann. Cas. 45; Ex parte Hollingsworth, 83 Tex. Cr. R. 409, 203 S. W. 1102. Such regulations, however, must not be inconsistent with legislative regulations upon the same subject. See Ex parte Oates, 91 Tex. Cr. R. 79, 238 S. W. 930; 19 Ruling Case Law, p. 803, § 110. Also pp. 838-840, §§ 143-145.

In the present instance, the charter of the city of Wichita Falls was not made a part of the record. We are not advised as to whether the city operates under a charter by special act or general law. Under the general law, the charter powers of cities are enumerated. See R. S. 1925, tit. 28, arts. 961 to 1164. Touching the Home' Rule Amendment to the Constitution, see chapter 13, beginning with article 1165.

In the absence of other information upon the subject, this court could not assume in this habeas corpus proceeding that the charter powers of the city of Wichita Falls contain provisions upon the subject in hand "more extensive than those embraced in the general laws mentioned. ■ There has not been pointed out in the provision the law on which the right to enact and enforce the ordinance in question is founded, nor have we perceived such provision. Some of the terms of the ordinance are apparently inconsistent with some of the statutory provisions covering the same subject. This is notably true of that part of the ordinance which requires the prescription of a licensed physician. As stated above, the act done by the appellant was to sell a two-ounce bottle of Jamaica ginger manufactured according to the formula prescribed in the United States Pharmacopeia, which is recognized by the state and federal statutes as a lawful medicinal preparation. It is true that Jamaica ginger is sometimes converted into an intoxicating liquor, and thus contributes to the difficulty of the enforcement of the prohibition laws. See Thorpe on Prohibition and Industrial Liquor, § 459; Woods v. Seattle (D. C. Wash.) 270 F. 315; People v. Philpott, 219 Mich. 156, 188 N. W. 497. If sold as a beverage, the prosecution might be a felony under articles 666 and 667, P. O. 1925, forbidding the sale of intoxicating liquors. See Williams v. State (Tex. Cr. App.) 292 S. W. 899. If sold as medicine, as is admitted to have been done in the present ease, it is not by statute unlawful. See articles 668 to 674, P. C. 1925. The regulation of the sale of intoxicating liquors is prescribed by the statutory law, notably chapter 7, embracing articles 666 to 694, and includes the regulation touching .prescriptions. See articles 667 to 678.

With the information at hand, we are aware of no provision of the statutory law which would authorize a municipal corporation to make regulations contained in the ordinance. Particularly is that true with reference to the requirement of a physician’s prescription to make the sale legal, since that subject is embraced in the state law to which reference has been made.

The relator is ordered discharged. 
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