
    Ex parte FARLEY.
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1912.)
    1. Municipal Corporations (§ 111) — Ordinances — Validity.
    Towns have only such power to pass ordinances as is expressly conferred upon them by law, so that, in case of doubt, the ruling will be against the power claimed.
    [Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 111.]
    2. Municipal Coepobations (§ 592*) — Police Power — Ordinances—Validity.
    A town ordinance prescribing a less pun-, ishment for an offense against its terms, than is imposed by state law creating and penalizing the same offense is invalid.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1311-1314; Dec. Dig. § 592.]
    3. Municipal Coepoiiations (§ 592) — Ordinance — Validity — CONELICT WITH STATE Law.
    A town ordinance forbidding pool halls to be open after 9 o’clock in the evening is in direct conflict with the state law which taxes pool halls and authorizes towns to levy a tax upon them, but places no limitation upon the number of hours per day they may keep open.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 1311-1314; Dec. Dig. § 592.]
    Appeal from Hall County Court; Jno. D. Bird, Judge.
    Application of Jesse Farley for writ of habeas corpus. From judgment denying writ, he appeals.
    Reversed, and applicant discharged.
    A. S. Moss and Mathis & Kay, for appellant. Robert J. Thorne, City Atty., and C; E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   DAVIDSON, P. J.

Relator was arrested charged by complaint with violating an ordinance of the town of Memphis, in Hall county, for keeping open his pool hall and running therein pool tables after 9 o’clock in the evening. He sought through writ of habeas corpus relief from arrest on the ground that the ordinance was void. The county judge upon the hearing decided the law against his contention.

The ordinance is supposed to be framed under article 431 of the Revised Civil Statutes. That article "authorizes towns to “license, tax and regulate billiard tables, pin alleys, ball alleys,” etc. The above language is that portion of the article it is claimed which justified the passage of this ordinance. Pool halls or pool tables are not mentioned in the statute. The city’s contention is that the expression “billiard tables” is sufficient to cover pool tables. Under the view we take of the matter, it is unnecessary to discuss whether “pool table” is included within the term “billiard tables.”

1. There has been levied a state occupation tax upon pool tables, and this authorizes counties and incorporated towns to levy . half of the amount of the state tax for county and city purposes. Relator’s contention is that the ordinance is void, because power was not granted under the general statutes to towns and cities to pass the ordinance in question. It may be stated as a correct general proposition that towns and cities have no power except such as granted by the Legislature, unless set out in the Constitution, and, wherever there is a doubt of the authority of municipal corporations, that doubt is resolved most strongly in favor of the state and against the municipal corporation. Flood v. State, 19 Tex. App. 587; Ex parte Ginnochio, 30 Tex. App. 584, 18 S. W. 82. Authorities are hardly necessary, however, to cite in support of that proposition. Therefore, wherever a city seeks to pass an ordinance, and it is doubtful that such power exists, it devolves upon the city to show the grant of power, and, if there be a doubt, it is to be resolved against the city. From this viewpoint we are of opinion that the law is with the relator. The punishment, if there be any under this ordinance, is less than that prescribed by the state law.

2. There is another proposition that seems to be unquestioned, and that is the ordinance, to be valid, must not be in conflict with the state law upon the same subject. This has come before this and other courts of the state in various forms. Wherever the state authorizes ap occupation or calling and levies a tax upon it or requires a license, if by city ordinance the city seeks to levy a tax or grant a license, its action must be strictly in compliance with the Constitution and the laws in the exercise of that authority. The city cannot legally levy more than half of the tax imposed by the state. It is deemed unnecessary to cite authorities in support of this proposition.

If the state denounces an offense and fixes the punishment for it, and the city or town undertakes to pass an ordinance punishing the same offense, then the ordinance must be the same as the state law both as to definition and as to punishment. Flood v. State, 19 Tex. App. 587; Mantel v. State, 55 Tex. Cr. R. 458, 117 S. W. 855, 131 Am. St. Rep. 818; Angerhoffer v. State, 15 Tex. App. 613; McLain v. State, 31 Tex. Cr. R561, 21 S. W. 365; Lynn v. State, 33 Tex. Cr. R. 159, 25 S. W. 779; Bohmy v. State, 21 Tex. App. 597, 2 S. W. 886; Arroyo v. State, 69 S. W. 503; Fay v. State, 44 Tex. Cr. R. 381, 71 S. W. 603. In other words, the proposition may be concreted into this statement: If the ordinance is in conflict with the state law, it will be held invalid. This is supported by the authorities cited.

3. Another proposition that is supported by the authorities is this: If the occupation or business under the state law operates or can operate or be carried on without limitation with reference to hours of the 24, then the ordinance cannot limit the time to a shorter period of hours. For instance, if the business is authorized under the state law to run the entire 24 hours, an ordinance which authorizes the business to be carried on for fewer hours or -restricts or inhibits it to less time than 24 hours would be invalid. Arroyo v. State, 69 S. W. 503; Pay v. State, 44 Tex. Cr. R. 381, 71 S. W. 603, and authorities already cited. In the Arroyo Case, supra, the city of Dallas passed an ordinance authorizing the opening of saloons on Sunday for the purpose of selling liquor until 9 o’clock in the morning, and after 4 o’clock in the evening. As the state law prohibited the selling of liquor for the 24 hours, this ordinance was held invalid, yet the city charter undertook to confer authority upon the city to pass such an ordinance. The Pay Case arose in Galveston involving the same question. The ordinance undertook to confer authority upon the owners of saloons to sell intoxicants on Sunday until 9 o’clock in the morning, and required them to close until 4 o’clock in the evening, after which time they could carry on their business. The ordinance was held invalid, in that it was contrary to the statutes of the state, which required the closing of the saloons for the entire 24 hours. Under the state law, pool halls and billiard tables may run or keep open during the 24 hours, there being no limit placed by the state statute upon the hours of opening and carrying on the business. The Memphis town ordinance undertook to limit the opening of these pool halls to 9 o’clock in the evening. This is in direct conflict with the state law, and under the authorities cited must be held invalid.

The judgment is reversed, and relator is ordered discharged from custody.

PRENDERGAST, J., absent  