Ex Parte Bell, No. 248.

No. 248. | Tex. Crim. App. | Jun 23, 1893

Appellant was arrested, upon a charge of keeping a variety show, by the city marshal of the city of Houston, and at once sued out a writ of habeas corpus before the Hon. E.D. Cavin, judge of the Criminal District Court of Harris County, upon the ground, that the ordinance under which such arrest was made was void, because it was ultra vires, the city council having no power to declare acts innocent and legal in themselves to be criminal, and because the said ordinance is too indefinite and vague to be the basis of any action. Under the authority of Ex Parte Gregory, 20 Texas Criminal Appeals, 214, the trial court suggested that the questions involved be referred directly to this court, and it was so brought. It was admitted on the part of the city that relator, Bell, is under arrest and in custody of the city marshal of Houston by virtue of the ordinance set forth in the petition for habeas corpus. The object of this appeal is to determine the validity and legality of the ordinance hereafter set out.

The portion of the city charter bearing on the question, and which authorizes the city to pass an ordinance thereon, is as follows: "The city council shall have power to prohibit and punish keepers and inmates of bawdy houses and variety shows, and to segregate and regulate the same, and determine such inmates and keepers to be vagrants." On the 24th of April, 1893, in pursuance of the charter, the city council passed the following ordinance:

"An Ordinance to Define what are Variety Theaters and Variety Shows, and to Prohibit their Existence. "Be it ordained by the city of Houston: First. That a variety theater or variety show, as contemplated by the provisions of this ordinance, is any room, tent, building, or place of any character or description whatever, where any person or persons, male or female, or both, engage in making music, singing, or dancing, or who participate in plays or exhibitions of any character whatever, where beer, wine, whisky, brandy, or any kind of intoxicating liquor is drank, sold, or offered for sale or exchange or barter, or solicited to be sold, or is given away, or in any manner offered or presented to any person or persons who may be present in or visiting such room or place, tent or building, or any place or institution that is commonly known or recognized as a variety theater or show, is included within the provisions of this ordinance.

"Second. Any person who shall in anywise participate in any of the performances, or engage in any manner in conducting, managing, or operating any variety theater, or variety show, as defined by this ordinance, shall be deemed and held to be guilty of a violation of this ordinance, and upon conviction thereof shall be punished by a fine of not less than $25 nor more than $100 for each offense, and each exhibition at such variety show or theater shall be deemed and held to be a separate offense, under the provisions of this ordinance.

"Third. This ordinance shall take effect thirty days after its passage.

"Passed April 24, 1893."

Conceding that the city charter confers the right upon the city council to prohibit or to segregate and regulate the bawdy houses and variety shows, that in fact such a right is expressly granted by the very terms of the charter, and that all powers necessary to carry out such right are also granted, yet it will not be denied that the granted right must be legally exercised in harmony with the criminal laws of this State. While the fact that the charter puts bawdy houses and variety shows upon the same footing, and gives the city the right to prohibit or segregate them, evidently shows that the Legislature regarded such shows as essentially, if not equally, vicious; yet a variety show or theater eo nomine has never been declared illegal, nor its existence declared a penal offense, nor is a penalty affixed thereto by the law of this State. Penal Code, art. 3. In the absence of such legislation, it is certainly not in the power of the city council to group together a certain number of acts, innocent in themselves, or not illegal, and by calling it a "variety show," undertake to prohibit and punish parties engaged therein. The forbidden act must contain such elements as are defined and denounced by law.

The Legislature has passed a general law on this subject in what is known as the "Disorderly House Act." Acts 1889, page 33, articles 339, 341a, declare any theater or play house where intoxicating liquors are sold, and prostitutes or lewd — that is, impure — women or women of bad reputation are employed in any capacity, constitutes a disorderly house. Any variety show or theater combining these elements comes within the prohibition of law, and is a disorderly house, whatever be the name given to it by the proprietors or the public. Without these elements it can not be declared illegal. Where these elements exist, the inmates and proprietor may, under proper ordinance, be arrested and convicted of vagrancy, as stated in the charter, or may be punished as prescribed by the statute.

Disorderly houses are forbidden by law, and a variety show, to come within the prohibition, must, in effect, be a disorderly house. The ordinance in question is too vague and indefinite to sustain a conviction. The declared object of the ordinance is to define variety theaters, and prohibit their existence; yet, if its definition is correct in declaring that a place is a variety show where persons gather together with music and dancing, and drink wine and other intoxicating liquors, then, indeed, the law may lay its hands on many a private and social gathering in the city of Houston. It will not do to say that such gatherings will not be disturbed by the officers of the law. That would leave it entirely to the officers' discretion when they should interfere. Criminal law, in Texas, whether statute or ordinance, must be plainly written to be effective. Nor is the latter part of the ordinance, "that a variety show is any place or institution known or recognized as a variety show," to be regarded as a definition. To punish a man for the violation of law which rests on what witnesses may consider a variety show is to make the law vary with witnesses and localities, if not with every jury, instead of being certain and definite, as criminal law must be. The ordinance here is not only vague and indefinite, but in fact contains none of the essential elements of a disorderly house, denounced by the law, and clearly within the power of the city to prohibit; and the further prosecution of the relator by virtue of the ordinance is hereby dismissed, appellant to pay the costs of this appeal, and be discharged from custody.

Relator discharged.

Judges all present and concurring.