6 Tex. L. Rev. 1 (1886)

handle is hein.journals/texalr6 and id is 1 raw text is: THE TEXAS. LAW REVIEW.,        1

THE TEXAS LAW REVIEW.
AUSTIN. TI XAS, JAN U AIY 5, 1S6.
Volune6. No. I.                Whole No. 154.
Attornevs desiring inlorintioin conctlruing the
Appellate CoUrts Will be a,-couiModatecl bv our cdi-
tor, who iay we .\'s e adllrcsol here |t nOLiltS
are iii sesiioln.
-o
L. W. FLOOD v. THE STATE.
(COURT OF APPEALS.]
Appeal front Siiith County.-Tried before Hon.
John M. )intcao, GCunty Julge.
,S'unday law.. Article 391, Revised Statutes, gives
no authority to city to a nnul article 186, P. C., by
ordinance.-Article 391, Revised Statutes, does not
confer upon a city incorl)rated under the general
corporation act, authority to abrogate artiolu 186, P.
C., by permitting the ni mel persons and occupa-
tions to sell or barter, or be pursued within pre-
scribed honrs on Snndny. , The cily power con-
ferred is that of cflosib ' the namined business hours,
which does not incinda, perni issioin to sell or barter.
Craddock v. 'The State, IS Ct. App., 567, overruled.
ISS ;N'J No OPINION.
'Clos'ing ,f1tei.  a ee.'- The word closing,
used in article ;9!, 1RPN\is.d Statutes, means seltig,
and the ordinance prescribing the hous for closing
is not invalid.
Artile. 3s S, fl. 8.- and 186, P. C., construed and
held not to covflict.-An ordinance prescribing the
hours within which the occupations named in arti-
cle 391, Rlevised Statutes, bai he pursued, is not in
conflict with article 186, Penal Code.
'aine; if conflictig the pelal statute must give
way.-Article 180, Penal Code, is general legislation
on a particular suhject, and article 391, Revised
Statutes, is special legislation on the same subject,
and if conflicting, article 186, Penal. Code, must
give way.
Cone Johnson and T. 0. Woldert for appellant.
A. G. McIlvaine and Jas. H: Burts for the State.
Statement.-For a statement we adopt the
learned trial judge's conclusions, to-wit:
-Conclusions of fact.-I find that on Octo-
ber 2.5, 1885, the same being. a Sunday, the de-
fendant L. W. Flood, who was then and there
merchant, grocer and dealer in wares'and
merchannsie, and a trader, in a- lhwful busi-
ness;- that is to say, a saloon keeper duly
licensed by State, county and city, did sell to
one G. W. Johnson, one drink of liquor; that
said sale was made about the hour of 7:45 a.
M., in the city of Tyler, county of Smith, and
State of Texas; that then and there the front
doors of defendant's saloon, or place of busi-
ness, were closed. Further. that the said city
of Tyle r was, on July 6, 1877, legally incorpo-
zated as a city by the acceptance of the pro-

visions of the general laws of Texas, Act ap-
proved Mdarch 15, 1875, and as now contained
it Title 17 of the Revised Statutes of, Texas.
Further, that on February 1, 1885, the City
Council of said city passed, and caused to be
published as the law directs, the following
ordinance:
'Be it ordained by the Cily Council of th?
city of Tyler, that any merchant, grocer, or
dealer in wares and merchandise, saloons,
bar-rooms, beer saloons, or trader in lawful
business, or the agent or employe of any such
person be allowed to sell legally any parcel
parts, or part of their stock, either at retail or
wholesale, on Sundays before 9 o'clock a. m..
and after 4 o'clock p. in., with front -doors
closed. This ordin ance to take effect on the
seventh day of February, 1885. T. N. Jones,
Mayor of Tyler. Attest: N. C. Harris,
Secretaty.'
C o0ilaSions of law.'-)efendant pleads
said ordinance irNbar of a conviction on above
facts for violation of the State Sunday law.
Article 391 Revised Statutes, hnder which is
claimed the authority for the passage of -aid
ordinance, gives the City Council authority
'to close drinking houses, saloons, bar-rooms,
beer saloons, and all places or establishments
where intoxicating or fermented liquors are-
sold on Sundays, and prescribe hours for clos-
ing them, and also all places of amnusimnent
anid business.,
The ordinance is a peculiar one. It does
not provide for the closing of houses, nor pre-
scribe hours for closing them. Itprovides no
penalty. It is a grant of license to do that
which is forbidden by the Penal Code, and
not a penal regulation or restraint. It is
manifestly intehded directly to repeal article
186 of the Penal Code, and the amendment-
thereto in so far as said article 186 applies .to
the city of Tyler as to sales made before 9 a.
in. angl after 4 p. m.on Sundays. Hence 1con-
clude that said ordinance is not valid because
not authorized by said Title 17, nor by said
article 391.
Again, artiele 391 is ageneral law-a part,,'
of said Revised Statutes passed by the Six-
teenth Legislature on February 28, 1879, and,
took effect September 1,1879. The Sunday
law, article 186 of the Penal Code, (amended
at the regular session of the Legislature in
1883), was passed, together with the Penal
Code and Code of Criminal Procedure, on
February 27,, 1879, and took effect July 24,
1879. Now, if under article 391, Revised Stat-

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