
    Ex parte JONES.
    (No. 10695.)
    Court of Criminal Appeals of Texas.
    Jan. 12, 1927.)
    1. Municipal corporations <©=>592(I)— Ordinance in conflict with state law must yield.
    When a city ordinance is in conflict with a state law, the ordinance must yield.
    2. Municipal corporations <&wkey;592(3)— Ordinance rate for labor of convicts defaulting in payment of fines held superseded by statute (Code Cr. Proc. 1925, arts. 793, 872).
    Code Cr. Proc. 1925, arts. 793, 872, providing that one imprisoned for misdemeanor may be put at work, and his rating for such labor must be at $3 for each day, supersedes and renders inoperative ordinance of Dallas providing that one convicted of misdemeanor defaulting in payment of fine shall be credited 59 cents per day for labor performed by him.
    Appeal from Criminal District Court, Dallas County; Felix D. Robertson, Judge.
    Application by Willis Jones for a writ of habeas corpus to be released from the Municipal Farm of Dallas. From judgment remanding relator to custody of the Chief of Police of the City of Dallas, relator appeals.
    Reversed, and relator ordered discharged.
    Huling P. Robertson and Thos. F. White-side, Jr., both of Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWICINS, J.

Relato!- was convicted in the corporation court of the city of Dallas for the offense of vagrancy, and his punishment assessed at a fine of $75.

He was sentenced to the Municipal Farm,, where he labored for 27 days. At .the expiration.of tMs time he applied for release upon writ of habeas corpus upon the ground that he was entitled to $3 per day- for each day of such confinement and labor, and that at such rate he was' entitled to release. The relief sought was denied, and from such order this appeal is taken.

In. 1907 the Thirtieth Legislature, by special act (Sp. Laws 1907, c. 71), granted a new charter to the city of Dallas, in which the city was authorized to enact and enforce ordinances, provided that no ordinance should be inconsistent with the laws of the state of Texas. It was authorized to punish vagrants and to provide workhouses for vagabonds and disorderly persons who were unable, or refused, to pay fines, or to compel them to work on the streets, alleys, or public works of the city, etc.

Article 1042, c. 7, Rev. Code, city of Dallas, provides:

“That all convicts, as that term is hereinbe-fore defined (all persons convicted of any offense whatever in the corporation court of the city of Dallas, and who shall make default in the payment of any and all fines) shall be allowed the sum of fifty (50⅜) per day for all labor performed by them, which said sum shall be credited upon the amount of the fine and penalty imposed upon such convict as shown by the judgment of conviction,” etc.

It is under this ordinance providing for the allowance of 50 cents per day for labor performed under which the city seeks to hold ■relator.

Article 872, C. O. P. (1925 revision), reads as follows:

“The governing body of each incorporated city, town or village shall by ordinance prescribe such rules, not inconsistent with any law of this state, as may be proper to enforce, by execution against the property of the defendant, or imprisonment of the defendant, the collection of all costs and fines imposed by such court, and shall also have power to adopt such rules and regulations concerning the practice and procedure in such court as said governing body may deem proper, not inconsistent with any law of this state. All such fines shall be paid into the city treasury for the use and benefit of the city, town or village.”

Article 793, O. O. P. (1925 revision), reads , as follows:

“When a defendant is convicted of a misdemeanor and his punishment is assessed at a pecuniary fine, if he is unable to pay the fine and costs adjudged against him, he may for such- time as will satisfy the judgment be put to work in the workhouse, or on the county farm, or public improvements of the county, .as provided in the succeeding article, or if there be no such woi'khouse, farm or improvements, he shall be imprisoned in jail for a sufficient length of time to discharge the full amount of fine and costs adjudged against him; rating such labor or imprisonment at three dollars for each day thereof.”

It is not necessary to investigate here whether, at the time the ordinance was passed by the city of Dallas providing for a credit of 50 cents per day, it was inconsistent with state laws then in force. By the revision of 1925, article 793, supra, appears to be the only one now effective. It provides that the labor or imprisonment shall be rated at $3 per day. Many authorities will be found in our own state holding that, when a city ordinance is in conflict with a state law, the ordinance must yield. McLain v. State, 31 Tex. Cr. R. 558, 21 S. W. 365;, Ex parte Cross, 44 Tex. Cr. R. 376, 71 S. W. 289. See, also, cases collated under section 416, Branch’s Ann. Tex. P. C. We think it unnecessary to burden this opinion with a further citation of them.'

There is no escape from relator’s contention that an allowance of only 50 cents per day is clearly inconsistent with article 793, supra. Said article superseded and rendered inoperative article 1042, chapter 7, of the City Ordinances of the city of Dallas.

It appears that relator has already labored a sufficient length of time at the rate of $3 per day to entitle him to his discharge.

The judgment remanding relator to custody of the chief of police of the city of Dallas, is reversed, and relator ordered discharged. 
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