
    Ex parte GOLDBURG.
    (No. 4639.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    1. Municipal Corporations <&wkey;622 — Ordinances — Prohibition op Business.
    A business authorized by the state law cannot be directly or indirectly prohibited by a city ordinance, and cannot bo regulated by the city otherwise than by the grant of power to it in its charter, or otherwise than according to the state law, and cannot conflict with the state law or any constitutional provision.
    2. Municipal Corporations &wkey;>592(3) — Ordinance — Penalties.
    Penalties under ordinances which are the same as tho state law must conform strictly to penalties prescribed by the state law, and cannot exceed them, and must not conflict with the state law or the Constitution.
    3. Municipal Corporations t&wkey;624 — Ordinances — Penalties—General Statute.
    Municipal ordinances on a subject as to which there is no state law cannot prescribe penalties, unless so authorized by the state law and specified in the charter, and in no instance beyond the granted power, and if there is no express authority in the charter to levy penalties, but there is a general statute authorizing penalties for city ordinances, the ordinance must conform to the general statute.
    4. Municipal Corporations <&wkey;624 — Ordinance — Pawnbrokers—Penalty. .
    The city of El Paso, having no express charter authority to regulate or penalize the occupation of junk dealers, but having specific authority to control pawnbrokers, by ordinance prescribed a penalty of not less than $5 nor more than $2Q0 for the violation of an ordinance which required pawnbrokers to keep records, make returns to the chief of police, not to buy property under certain conditions, fixing hours of business, etc. Pen. Code 1911, art. 641, provides that if any pawnbroker receive any article in pledge or sell it without complying with the laws regulating pawnbrokers, he shall be punished by fine of not less than $25 nor more than $100. Held, that the ordinance was invalid as to the penalty for its violation by pawnbrokers.
    5. Municipal Corporations <&wkey;lll(4) — Ordinance — Partial Invalidity — Effect.
    Such ordinance, imposing similar restrictions upon junk dealers and secondhand dealers, and which so intermingled those* classes that one part of the ordinance could not be upheld to the exclusion of the others, its invalidity as to the penalty imposed on pawnbrokers rendered it void both as to pawnbrokers and junk dealers.
    6. Municipal Corporations <&wkey;625 — Ordinance— Junk Dealers — Unreasonableness.
    An ordinance requiring junk dealers to keep a record of all transactions, describing the articles received and the persons from whom received, and their addresses, to be open to chief of police, and requiring them to furnish daily reports to tho chief of police, making it unlawful to buy or receive property marked as the property of any firm or corporation, unless the person offering it showed that he is the lawful owner, requiring that lots purchased be kept separate for two days, and restricting business to the hours between 6 a. m. and 7:39 p. m., was invalid because unreasonable.
    Prendergast,. J., dissenting.
    Application for writ of habeas corpus by A. Goldburg.
    Relator ordered discharged.
    Hudsepth, Dale & Harper, of El Paso, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The city of El Paso passed an ordinance, *the first section of which reads as follows:

“It shall be the .duty of every person, firm or corporation who is engaged in the business of pawnbroker, junk dealer or a dealer in secondhand goods or merchandise in; the city of El Paso, Texas, either as a business or as a mere occasional purchaser of the same, to provide a well-bound book to be kept at his place of business, in which a record of all transactions had by said person, firm or corporation shall be kept, giving an accurate description of each and every article taken in as a pledge or purchased by them, together with an accurate description of the party or parties from whom said goods are received or purchased, together with the name of said person or persons and his or their address, giving the house or street number of same, which book shall be open at all times to the inspection of the chief of police of tho city of El Paso, Texas, or any officer designated by such chief of police, and there shall also be entered in said book the amount of the loan or purchase price of all of said articles.”

Section 3 provides:

“It shall be the duty of every person, firm or corporation engaged in any of the above businesses to furnish daily a report before 12 o’clock noon to the chief of polic-e of the city of El Paso, Texas, on blanks to be furnished by said chief of police, which accurate and complete record shall show all property of every kind received or purchased by them, together with the description of said property, description of the person, delivering the same to them, together with said persons’ addresses, and said report shall give the age, complexion, sex and approximate height of the persons delivering said property to them, together with the time at which said property was received.”

Section 5 provides:

“It shall he unlawful for any person, firm or corporation to buy any property of any kind or receive the same as a pledge which property is distinctly and plainly marked as being the property of any firm or corporation other than the party offering the same to sell, unless the party offering to sell the same shall show satisfactory evidence in writing that he is the legal and lawful owner of said property.”

Section 6 provides:

“It shall be unlawful for any person to act as the agent, servant or emploj'é of any person, firm or corporation engaged in any of said businesses, who does not keep a book as required by this ordinance and does not make report to the chief of police as herein required.”

Section 7 provides:

“It shall be the duty of every person, firm or corporation from whom junk is bought or otherwise obtained to safely keep each lot or purchase separate and apart from other articles so that the same can be identified, for at least two (2) full days after the day the same is purchased and report thereof is made to the chief of police, as above required.”

Section 9 provides:

“Should it hereafter be discovered or adjudged by any court that any section or portion of this ordinance is unconstitutional, void or invalid for any reason, it shall not affect the validity or constitutionality of tho remaining portion of this ordinance, unless the portion so declared unconstitutional, void or invalid is so interwoven or dependent upon the other portions of said ordinance that the same cannot be enforced as herein intended.”

Section 10 provides:

“It shall be unlawful for any person, firm or corporation engaged in the business of pawnbroker or junk dealer to keep such place of business open for business or to transact any business at said place of business between the hours of 7 :30 o’clock p. m. and 6 o’clock a. m. on the following day; and it shall be the duty of said person, firm or corporation so engaged in said business to keep the said place of business closed between the hours above mentioned.”

Section 11 provides:

“Any person, firm or corporation, or their agents, servants or emjfloyes. who shall violate any of the provisions of this ordinance, shall be deemed guilty of misdemeanor, and, upon conviction thereof, shall be fined for any sum not less than five ($5.00) dollars, nor more than two hundred ($200.00) dollars.”

This is a sufficient statement of the provisions of the ordinance to bring in review the questions urged for disposition. There are a few general propositions which seem to be well understood as the law, which may be stated as follows: A business which is authorized by the state law cannot be prohibited by city ordinance directly or indirectly. A business which is regulated by the state cannot be prohibited by the city either by express enactment or by prohibitory regulation. A business regulated by the state cannot be regulated by the city, otherwise than by grant of power to such city in the charter passed by the Legislature for the purpose of such regulation. Nor can such regulation be otherwise than in accord with the state law. It cannot be in violation of or in conflict with the state law or any provision of the Constitution. Penalities under ordinances, if the ordinance is the same as the state law, must conform strictly to penalties prescribed by the state law. Such penalties cannot exceed or fall below the penalties prescribed by the state law; that is, where the ordinance pertains to the same matter as that enacted by the Legislature. Ordinances which are purely municipal, and where there is no existing state law on the same subject cannot prescribe penalties, unless so authorized by the state law and specified in the charter, and this in no instance beyond the granted power. If there be no express authority in the charter to levy penalties, but there is a general statute of the state authorizing penalties for city ordinances, then the ordinance must conform to the generally delegated authority. The city can neither provide a punishment in excess of the legislative act, nor prescribe a less penalty, and in either or both instances there must be no conflict with the state law or the Constitution. Const, art. 11, § 5. For cases, see Harris’ Ann. Cons. pp. 208 to 212.

An inspection of the charter of the city of El Paso shows that there is no express authority contained in the charter to regulate or penalize the occupation of junls dealer or secondhand dealer. The power to create or ordain the ordinance in question, if existent, is to be found in the general statement of granted authority in the second section of the charter. It is unnecessary to repeat that section, but it is very general as in contradistinction from being specific. Power, however, is granted specifically to control pawnbrokers. This is found in section 98 of the city charter of El Paso, but junk dealers and secondhand dealers are not specified. Therefore, if they can be regulated or penalized, as before stated, it must be under the general grant of power found in section 2 of the act. It will be noticed that this ordinance prescribes a punishment not less than $5 nor more than $200. Pawnbrokers are included within this ordinance, and come within that punishment. Article 641 of the Penal Code provides that:

“If any pawnbroker, or person doing any business as such, shall receive any article in pledge, or sell the same without complying with the laws regulating pawnbrokers in this state, he shall be punished by fine not less than twenty-five dollars nor more than one hundred dollars.”

So it is obvious that the ordinance is invalid in its punishment so far as pawnbrokers are concerned. All the authorities hold that where the punishment is prescribed by a state law, and the city undertakes to prescribe a punishment for the same offense, it must follow literally the state law both as to definition and punishment, and that any punishment higher or lower than the state law will be invalid. The authorities are so numerous and so well understood it is thought unnecessary to cite them. Not only is this the well-known rule in Texas, but the matter is further emphasized by a provision of the Constitution. Article 11, § 5, of tliat instrument thus reads:

“Cities having more than five thousand inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state or of the general laws enacted by the Legislature of this state,” etc.

So there would seem to be no question of this proposition. There is a direct conflict here between the ordinance and the state law as to pawnbrokers, especially as to the amount of punishment. This ordinance is void from this standpoint. The punishment and regulations provided therein as to pawnbrokers being in direct conflict with the state law on these subjects must be held void. The ordinance includes pawnbrokers, junk dealers, and secondhand dealers, and so intermingles all these different subjects and classes that one part of the ordinance cannot be upheld to the exclusion of the others or an omission of the other phases. This seems evident from its perusal. This being true, the whole ordinance must fall. It is unnecessary to take up and contrast the pawnbrokers’ phase of the ordinance with the state law on the same subject. The ordinance and the state law are so directly in conflict on these different matters, and they are so interwoven in the ordinance with each other, that they cannot be held invalid as to one and valid as to its other provisions. It was and is clearly the intention of the ordinance to include them all together, and the ordinance is so written that it seems impossible to eliminate one and leave the other so as to make the ordinance valid as to any of them. Ex parte Wood, 52 Tex. Cr. R. 575, 108 S. W. 1171, 16 L. R. A. (N. S.) 450, 124 Am. St. Rep. 3107; Pullman Car Co. v. State, 64 Tex. 279, 53 Am. Rep. 758; Hoefling v. City of San Antonio, 85 Tex. 228, 20 S. W. 85, 16 L. R. A. 608.

It is contended that the ordinance is invalid because of its unreasonableness. We are of opinion this proposition is correct. Some provisions of the ordinance are not only unreasonable, but discriminating and prohibitory. Pawnbroking seems to have been rather ostracized of late years, and legislation has been adverse to such business, but this cannot be said of junk dealers and secondhand dealers so far as the policy of legislation in Texas is concerned. That reasonable regulations may be applied is not necessary to he discussed, but some of those prescribed clearly are unreasonable. Eor instance, take section 5, which prescribes:

“It shall be unlawful for auy person, firm or corporation to buy any property of any kind or receive the same as a pledge which property is distinctly and plainly marked as being the property of any firm or corporation other than the party offering the same to sell, unless the party offering to sell the same shall show satisfactory evidence in writing that he is the legtil and lawful owner of said property.”

The practical effect of this section is tliat parties who desire to exchange property which they may have, 'such as clothing, stoves, and a great many things of that character here unnecessary to enumerate, would be prohibited from selling and the purchaser from purchasing if it should happen to have stamped on it the name of the original maker or owner of said article. This seems to the writer to he a prohibition of the purchase or selling of such article, if not an absurdity. It would be rather difficult for some one who has bought a suit of clothes with the name of the original maker on it where it was manufactured in some of the other states of the Union, or perhaps in a foreign country, to get permission from the maker or original owner to dispose of this property, and the purchaser would have equally as difficult proposition to ascertain the granted permission. The maker of those clothes, stoves, or other articles may buy them and place them upon the market and dispose of them and part with the title when they were shipped from the factory. The party owning such property when he proposes to sell or exchange, pledge, or pawn them would be required to seek out the original manufacturer or owner and secure authority from them in order to sell this property, whether it he junk or secondhand goods. If this section is held valid it would require practically an impossibility, and unless he did obtain such permission as required by the ordinance he would be liable for a severe punishment. The writer is inclined to think that section 3 is subject to the criticism of appellant. It is unnecessary here to repeat it, as it has already been quoted. From it it will be seen that parties engaged in any of these matters are required to make daily reports to the chief of police before 12 o’clock of each day on blanks furnished by such chief of police, stating accurately and completely in that record all property of every kind received or purchased, a description of the property and of the person delivering the same, the person’s address, and such report shall give the age, complexion, sex, and approximate height of the person delivering said property, together with the time at which it was received. And in section 7, the junk bought shall be safely kept to itself separate and apart from all other articles so that the same may be identified, and must he so kept for at least two days after the day the same was purchased and report thereof is made to the chief of police. These matters are of such a nature as to be prohibitive, onerous, and unreasonable.

We are therefore of opinion this ordinance is void, and the relator is ordered discharged.

PRENDERGAST, J.

(dissenting). The relator was prosecuted for violating the ordinance as to junk dealers .solely. ' Therefore, even if some provisions of the ordinance as to pawnbrokers or dealers in secondhand goods should be invalid, that would not invalidate the ordinance as to junk dealers. I think the ordinance is severable and valid as to junk dealers. I therefore cannot agree to the opinion by the majority, but dissent therefrom. 
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