
    Ex parte CURRY.
    (No. 7733.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1923.)
    1. Statutes <&wkey;64(6) — Invalidity of part of act regulating speed of motor vehicles held not to invalidate whole act.
    The invalidity of that part of Acts 35th Leg. 1917, c. 207, § 20, being Yernon’s Ann. Pen. Code Supp. 1918, art. 820o (prior to its amendment by Acts 38th Leg. 1923, c. 155), limiting the speed of a motor vehicle on a highway to 18 miles per hour, where the territory ' contiguous thereto is closely built up, held! not to invalidate the whole act or the entire section and that part of the section limiting speed on a highway, either in or without a city," to 25 miles per hour is not invalid.
    2. Municipal corporations <&wkey;592(2) — City ordinance limiting speed of motor vehicles in conflict with state faw invalid.
    Ordinance of city of San Antonio, limiting speed of a motor vehicle in nonbusiness districts, to 20 miles per hour, being at the time of its enactment in conflict with the law then in force, namely, Acts' 35th Leg. 1917, c. 207, § 20, being Vernon’s Ann. Pen. Code Supp. 1918, art. 820o (prior to its amendment by Acts 38th Leg. c. 155, fixing the speed limit in a city at 20 miles per hour), limiting speed of a motor vehicle to 25 miles per hour, and section 23 (article 820r) expressing an intention of the Legislature to assume control of the speed limit of motor vehicles on the highways both in and out of incorporated cities, the ordinance was invalid and incapable of supporting a conviction for its violation.
    <@a»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Original application by T. F. Curry for writ of habeas corpus.
    Prisoner’s discharge ordered.
    Leonard Brown, of San Antonio, for appellant.
    Williams & Park and Herbert Oliver, all of San Antonio, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

By way of original application for writ of habeas corpus, relator seeks release from restraint under a judgment assessing against him a fine of $50 for , . violation of an ordinance of the city of San Antonio, enacted November 9, 1922, which reads thus:

“Sec. 3. It shall be unlawful for any person or persons to operate any automobile, motorcycle or other vehicle upon any street, avenue, boulpvard, roadway or alley within the corporate limits of the city of San Antonio and outside of the limits of the downtown business district provided for in section one of this ordinance, at a greater rate of speed than twenty miles per hour.”

The validity of this ordinance is challenged upon the ground that its enactment was not within the power of the municipal government, for the reason that it is in conflict with the state law upon the subject, particularly with section 20 of chapter 207 of the Acts of the Thirty-Fifth Legislature (Vernon’s Ann. Pen. Code Supp. 1918, art. 820o), in which the speed limit for motor vehicles on the highway is fixed at a rate not to exceed 25 miles per hour, except upon parts of the highway “where the territory contiguous thereto is closely built up” and in the business district of any town or incorporated city. Section 23 of chapter 207, supra (article 820r), in part reads thus:

.“Limitations as to the rate of speed herein fixed by this act shall be exclusive of all other limitations fixed by any law of this state or of any political subdivision thereof and local authorities, cities and towns shall have no power to pass, enforce or maintain any ordinances, rules or regulations in any way in conflict with or inconsistent with the provisions of this act, and no such ordinance, rules or regulations of such local authorities now in force, or hereinafter enacted shall have any force. * * * ”

It is insisted by counsel for the state that sections 20 and 23, supra, were rendered inoperative, as shown by the previous decisions of this court. Ex parte Slaughter, 92 Tex. Cr. R. 212, 243 S. W. 478, is to the effect that the term “closely built lip” was, under article 6 of the Penal Code, so indefinite as to render that particular part of the law invalid. Section 20, in which the words mentioned are contained, referring to the use of the public highways, says:

“ * *' * That it shall be unlawful to drive at a rate of speed in excess of twenty-five miles per hour; and provided further, that in any event no person shall operate or drive a motor or other vehicle on any public highway where the territory contiguous thereto is closely htiilt up, at a greater rate of speed than eighteen miles per hour.”

The effect of the decision in Slaughter v. State, supra, was not, in our judgment, to render the entire act nor the entire section invalid, but operates merely to eliminate that provision which is italicized, and which is directly controlled by the words “closely built up.” Section 23, which manifests an express intention of the Legislature to assume the control and authority of fixing the speed limit of motor vehicles upon a highway, both in and out of incorporated cities, was not vitiated by the particular provision held invalid in the Slaughter Case, supra. The effective status of section 23 has frequently been recognized. See Ex parte Wright, 82 Tex. Cr. R. 247, 199 S. W. 486; Ex parte Parr, 82 Tex. Cr. R. 528, 200 S. W. 404. Other provisions of the same chapter have been considered. Some have been held inoperative, others effective. But in no instance has the chapter been condemned by reason of defects in parts of it. See Griffin v. State, 86 Tex. Cr. R. 498, 218 S. W. 494; Russell v. State, 88 Tex. Cr. R. 512, 228 S. W. 566; Scott v. State, 90 Tex. Cr. R. 101, 233 S. W. 1097, 16 A. L. R. 1420; Stalling v. State, 90 Tex. Cr. R. 310, 234 S. W. 914; Goforth v. State, 92 Tex. Cr. R. 201, 241 S. W. 1027, and other cases.

The importance of the question under consideration is minimized by the passage of chapter 155 of the Acts of the Thirty-Eighth Legislature, in which section 20, supra, was amended, so that,' by the state law, the speed limit for motor' vehicles is fixed at not to exceed 35 miles per hour on the public highway, and not to exceed 2Q miles per hour in any incorporated city. At the time of the enactment of the ordinance in question, it was unlawful under the state law for any person to drive an automobile on the public highway in or out of an incorporated city at more than 25 miles per hour, or in the business district of any incorporated town or city at a rate exceeding 15 miles per hour, or 10 miles per hour, according to the class of the city.

The ordinance in question, fixing the speed limit in the city of San Antonio at 20 miles per hour, being in conflict with the state law in force at that time, was invalid and incapable of supporting the conviction of the relator.

His discharge is therefore ordered.  