
    Ex parte GRAHAM.
    (No. 9585.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.)
    Municipal corporations &wkey;>604 — City held not to have power to punish owners permitting) fowl to run at large.
    City, incorporated under Rev. St. 1911, arts. 762-1096, helé not to have power under articles 764, 859, 860, to make it a penal offense for owners of fowls to permit them to run at large in corporate limits, since, after enactment of article 860, general welfare provisions in article 764 would not apply, and article 860 applied only to certain named animals and not to others, and article 859 relates only to driving of animals through city.
    Appeal from Motley County Court; C. L. Glenn, Judge.
    Application by Mrs. W. M. Graham for a writ of habeas corpus. From an order refusing to discharge relator, she appeals.
    
      Judgment reversed, and relator ordered discharged.
    Bouldin & Fish, of Matador, for appellant.
    Tom Garrard, State’s Atty., and Grover G. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

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 penal "offense who, being the owner and custodian of any chicken or othér 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, hot 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 cannot 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 certain named 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. Cr. R. 461, 117 S. W. 855, 131 Am. St. Rep. 818; Pye v. Peterson, 45 Tex. 312, 23 Am. Rep. 608 ; 2 Dillon on Municipal Corporations (5th Ed.) art. 620. Prom 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 construed 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, 33 Tex. Civ. App. 507, 76 S. W. 805. Even if the general welfare clause embraced in article 764 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. App. 493, 17 S. W. 1057; Ex parte Glass, 49 Tex. Cr. R. 87, 90 S. W. 1108; Ex parte Botts, 69 Tex. Cr. R. 161, 154 S. W. 221, 44 L. R. A. (N. S.) 629; Ex parte Neill, 32 Tex. Cr. R. 275, 22 S. W. 923, 40 Am. St. Rep. 776; Ex parte Harris, 97 Tex. Cr. R. 399, 261 S. W. 1050, 32 A. L. R. 1356; 20 Ruling Case Law, p. 389; 2 Wood on Nuisance, 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. 
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