San Antonio daily light. [volume] (San Antonio, Tex.) 1886-1907, 1890-02-27
STATE ON TOP.
And the City Knocked Out by Court
OF AppeaIS,

And the City Knocked Out by Court
Of Appeals.
The question is now decided as to whether
the city shall control the gaming and disor-
derry houses OF this city by license or not me
court of appeals at Galveston yesterday de-
oided IL in the case of Emea Cara, charged
with keeping diSOrderiy house without
license She appealed to the court at Calves
tonand here is the dt cisiOn OF the appellate
judge:
TEXT OF THE DECISION.
Ex-parte Emelia Garza-Appeal from BeXar
Appellant is held in custody 6ya policeman
of the city of San Antonio under warrant
issued by the recorder for a violation OF an
ordinance "to suppress and restrain oawuy
houses within tn limits OF the CITY OF san
Antonio This ordinance was Dec. ID, 1857. IL
provides for licensing bawdyhouses Wilma the
limits of the city upon the payment OF an an
nuaI license to the city OF 500. 1t PROVIDES
for the licensing of bAwds. 1t also provides
for the inspection of bawds and preScribeS
penalties for violation of any or It's pt0Vs
ions. 1t is admitted that appellant violated
the ordinance by keeping Dawdy mousse
without OBTAINING license. 1t is admitted
that the amount imposed was reasonable, ana
that il does not amount to tax upon the Oc-
cupatiOn. The city is Incorporated by
SPECIAL act of the legislature. and the pro.
visions of its charter under which II is tanned
the city had the power to license Is as follows:
Section - To license, tax and regulate
billiard tables, pin alleys, ball alleys, 10 sup
press and restrain diSOrderly houses, tipping
shops and groceries, bawdy houses, houses OF
prostitution or designation, gambling aud
gambling houses.
"SectiOn 9S.-TO prevent and punish the
keeping of houses OF prostitution withln the
city, or within such limits therein as may be
defined by ordinance, and to adopt summary
measures for the removal or suppression or
regulation and inspection of all such estab-
lis uments."
A municipal corporation can exercise no
power which the charter does not grant in eX-
press words, or which is not necessarily or
fairly implied in or incident to the powers eX-
pressly granted, or which are not essential 10
| the declared objects and purposes of the cor
pOratiOA. DIn, Mum. corp. ~; Cooley, con.
Inn 81 -2S5. ! Such being tue extent and linn
| it. did the municipality or Sar Antonio nave
the power to enact the ordinance in question!
| Such power is certainly not conferred i'll eX
| press terms in the charter. No express power
is granted to license houses of prostitution
In Davis vs.. State Il ct. app. 425), cited by
| counsel to sustain the validity of the -Ordl-
| nance, the power to license was granted the
| city OF Waco in express words, and while the
| court adhereS to that decision IL IS bot april
plicable to the present. 1t is claimed however,
| that. although the charter does not In express
| words confer the power to license. 1t does by
necessary implication confer such power by
| granting expressly the power t. restrain, reg
| Mate and inspect such houses lu determln-
| ing the power of municipal corporation TO
enact a particular ordinance, the charter by
which it is claimed such power is conferred
| should receive a reasonable construction;
| that is. cDnStruCtiOL which accOrds with the
| intention o. the legislature and all reasonable
| intent in suppOrt of the validity of the Ordi
! Cameo will be INDUCED. Was il the intention
| of the Ipgls AZURE to confer upon the city the
| mower TO license houses of prostitution!
| - hen this cnarter was granted, houses OF
this chaTace r were prohibited by general
| law Had he legislature INTENDED 70 repeal
This general law within tie city lmlts OF the
city such intention would have been PLAINLY
and expressly declared. That such was not
It,, 1atfy inf * XAr ,sDg
by the fact that the power to license other
OccupatiOns was expressly conferred.
| BY no reasonable Interpretation or intend
ment can il be concluded that the legislature
| intended to grant to the CITY the power &c
enact the ordinance in question. Inc cour,
comedies that the cases cited by counsel
, | Clarke VS.. State, 81 Mo. l.; Smith VS.. Mad
son, : Ind IS; Burlington vs.. Lawrence. 4
| Iowa 3D. suppose the proposition that the
| power to restain and regulate includes the
| bower OF license, but the SOundness OF the
reasons upon which they are grounded is not
Admitted
| 1t is further claimed that the ordinance is
not in conflict with any general laws of the
state: that there is no valid law prohibiting
houses of prostitution; tdat the act of April
| 1, 1889, is void for unceTtSinty, because il pre-
| scribes different penalties for the same Of
| Tense AS the court UudCi stands and con
| strues article 34l and 34la, they have refer
| ence to different and distinct matters Artl
| Gle 34l prescribes punishment for those who
| keep disOrderly houses within the city Arti
| Gle 3lla Furnishes those who employ prOSti
tutes in theatres. dance houses, etc.
Reversed and appellant discharg ed.
Opinion by Wilson, J.