
    Ex parte WRIGHT.
    (No. 4664.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.)
    1. Municipal Corporations <©=>661(1) — Speed oe Motor Vehicles — Statutes.
    Acts 35th Leg. e. 207, regulating speed of motor vehicles, repeals Acts 30th Leg. c. 96 (Vernon’s Ann. Pen. Code 1916, art. 815), providing that municipalities could fix their own speed ordinances, although the word “repeal” is not expressly stated.
    2. Criminal Law <©=>15 — Repeal oe Statute-Pending- Prosecutions.
    One being prosecuted under a city ordinance for speeding at the time Acts 35th Leg. c. 207, relating to sped of automobiles, went into effect, should be discharged, because such act contains no saving clause as to pending actions, under Vernon’s Ann. Pen. Code 1916, art. 16, providing for discharges in such cases.
    Application by Thereon Wright for a writ of habeas corpus to be discharged from the custody of the sheriff of Coleman county.
    Relator discharged.
    J. K. Baker, of Coleman, for appellant. Garland Woodward, Co. Atty., and Critz & Woodward, all of Coleman, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The relator was convicted in the mayor’s court of Santa Anna, in Coleman county, for violating a speed ordinance of said town. He appealed to the county court, and was on July 3, 1917, again, convicted, and fined $5. He refused to pay the fine, and was then taken in charge by the sheriff of said county, holding him under said conviction until he paid the fine and costs. He thereupon applied to this court for a writ of habeas corpus, which was granted, and the cause regularly submitted in this court.

By Acts 1907, p. 193 (article 815, P. C.), it was made an offense for any one to drive or operate an automobile, on any public road, street, or driveway at a greater rate of speed than 18 miles an hour, or upon any such road, street, or driveway within the built-up portions of any city, town, or village, the limits of which shall be fixed by a municipal officer thereof, at a greater rate of speed than 8 miles an hour, except where such city or town may by an ordinance or by-law allow a greater rate of speed.

Before this prosecution began in the lower courts Santa Anna, which was a town of only about 2,000 inhabitants, had passed an ordinance making it unlawful and an offense for the owner, driver, or operator of any automobile, etc., to run, drive, or operate it along or over any of certain named streets at a greater rate of speed than 12 miles an hour. There are a large number of other provisions of said ordinance regulating the running of such machines, but it is unnecessary to state any of them. The said ordinance fixing the rate of speed at 12 miles an hour was doubtless under said article 815, P. G.; but whether it was or not does not affect the question to be decided herein.

As stated, said case against relator was tried in the county court of Coleman county on July 3, 1917. At that time Acts 1917, p. 474 et seq., regulating the operation of motor vehicles, had gone into effect, but evidently the lower court and the attorneys engaged in said trial were not aware of that fact, and were doubtless not aware of the provisions of said act, as that law had not then been published.

By said act (page 480, § 20) it is made an offense for any person to operate or drive a motor or other vehicle on any public highway where the territory contiguous thereto is closely built up at a greater rate of speed than 18 miles an hour, or in the business district of any town or incorporated city at a greater rate of speed than 15 miles an hour in cities of less than 40,000 population, or at a greater rate of speed than 10 miles an hour in the business district of cities of more than 40,000 population.

Section 23 of said act is:

“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 hereafter enacted shall have any force. * ”

The remainder of that section makes certain exceptions. They in no way affect the question in this ease, and it is unnecessary to quote or state them.

It is evident and certain, from the provisions of said act that it was intended by the Legislature thereby to fix the rate of speed at which such automobiles might be run, applicable to the' whole state and to all towns and municipal corporations therein, and that it was intended and had the effect to do away with the rate of speed fixed by said article S15 P. C., and especially with reference to the rate of speed of all the incorporated cities and towns of the state. No other construction can legally be given to seation 23. It is true that the word “repeal” is not used, but much stronger language is used, from which no other construction, as stated, can be placed upon section 23, than the repeal absolutely of any and all ordinances of any and all municipal corporations of the state prescribing any rate of speed other than specified in section 23. Section 40 provides:

“The provisions of this act defining certain offenses and prescribing penalties therefor shall be cumulative of all existing laws now in force relative to the-subjects to which they relate.”

This section is not in conflict with section 23, noil with section 20, for what is made cumulative thereby is the offenses and penalties prescribed by said act of 1917, and not the rate of speed at which such vehicles can be run.

By said section 40 and no other provision in said act is there any saving clause of prosecutions then pending, but, on the contrary, said section 23 makes it clear that none such was intended to be saved.

Article 16, P. C., provides that :

“The repeal of a law, where the repealing statute substitutes no other penalty, will exempt from punishment all persons who may have offended against the provisions of such repealing [repealed] law, unless it be otherwise declared in the repealing statute.”

Under this article it has repeatedly and uniformly been held that, where prosecutions have been begun and even convictions secured, while the case is on appeal no' such repealed statute can bei enforced, and the result is that the conviction must be held invalid. See decisions noted in Vernon’s Or. Stats, p. 11. But in this instance the act of 1917 had gone into full force and effect before the conviction of the rplator in the county court. The result is that at the time of the relator’s conviction in the county court the law authorizing it had been expressly repealed by the Legislature, and he was therefore convicted upon a repealed statute or no statute existing at the time under which a prosecution could be maintained. There can therefore he no question but that relator is illegally restrained of his liberty and is entitled to be discharged therefrom.

Relator ordered discharged. 
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