Terretto v. State

MORROW, J. Appellant was convicted of a felony in the alleged violation of article 630a of Vernon’s Ann. Penal Code, which denounces as a felony the sale of intoxicating liquors in a city or town outside of the limits fixed in said city or town in which intoxicating liquors may be sold. The allegation in the indictment is that appellant sold intoxicating liquors in the city of Houston; that said city had prescribed certain localities in which such sales were made unlawful. The particular transaction is charged to have taken place at 918 Bayou street. Prom the statement of facts it appears that appellant sold liquors at his place of business in the city of Houston located on the corner of Bayou and Liberty streets. There is no further proof as to the location of the building in which the sale was made. In other words, there is no specific proof that the sale was made at 918 Bayou street, the place ■designated in the indiqtment. We find no proof of the allegation contained in the indictment charging that the city of Houston had passed an ordinance fixing the saloon limits. The alleged ordinance and the manner of its adoption is set out quite fully in the indictment, but there appears to have been a failure to prove the fact thus alleged. [1] The courts have no judicial knowledge of the existence of city ordinances nor their terms, and where they enter into a transaction proof of them is essential. This is declared by this court in Wilson v. State, 16 Tex. App. 501, in an opinion ‘written by Judge Hurt, and by the Supreme Court of this state in Austin v. Walton, 68 Tex. 509, 5 S. W. 70, in an opinion written by Judge Gaines. These opinions are based upon the general rule of evidence as is indicated by the citation of authorities in the cases mentioned. This rule has been applied also in the case of Karehmer v. State, 61 Tex. Cr. R. 221, 131 S. W. 700, and the ease of White v. State, 198 S. W. 964. [2] When authorized by its charter, a municipal corporation may, by ordinance duly enacted, designate the localities within its corporate limits wherein the sale of intoxicating liquor licensed under the state law may be sold, and making it unlawful to sell elsewhere within the bounds of the city. This Has frequently been held a legitimate exercise of municipal authority and one not inhibited by any of the provisions of our Constitution. Ex parte Abrams, 56 Tex. Cr. R. 470, 120 S. W. 883, 18 Ann. Cas. 45; Ex parte King v. State, 52 Tex. Cr. R. 386, 107 S. W. 549; Williams v. State, 52 Tex. Cr. R. 374, 107 S. W. 1121; Garonzik v. State, 50 Tex. Cr. R. 533, 100 S. W. 374; Cohen v. Rice (Civ. App.) 101 S. W. 1052; Andrews v. Beaumont, 51 Tex. Civ. App. 625, 113 S. W. 615. We find nothing in Lyle v. State, 80 Tex. Cr. R. 606, 193 S. W. 680, opposed to this principle. On the contrary, the court in rendering that opinion expressly recognized the legislative authority to grant to municipal corporations local self-government not in conflict with the laws or Constitution of the state.. This declaration was made with full cognizance of the fact that municipal ordinances fixing saloon limits have been frequently upheld. 'Such limits being lawfully defined, by ordinances enacted with the sanction of the Legislature, we are aware of no provision of the Constitution restricting the power of the Legislature to prescribe a penalty for the refusal to observe the regulation mentioned. See Ex parte Hollinsworth, 203 S. W. 1102, recently decided; also, Le Gois v. State, 80 Tex. Cr. R. 356, 190 S. W. 724. Assuming the existence of the authority under its charter, the city of Houston had in our opinion power to pass the ordinance set out in the indictment and the Legislature had the power to enforce the observance of the ordinance by the enactment of the statute in question. For the insufficiency of the proof pointed out the judgment of the lower court is reversed and the cause remanded. Footnotes [1] @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes