Gabel v. City of Houston

Citations

• 29 Tex. 335

Syllabus

<p>A motion to quash a writ of certiorari, for want of sufficient grounds in the petition, must be made at the first term of the court after the return of the writ. A motion made at a subsequent term will not be entertained. (Paschal’s Dig., Art. 468, Note 331.)</p> <p>If no motion was made in the district court, an objection to the sufficiency of the writ will not be entertained in the Supreme Court.</p> <p>The Sunday ordinance, under which the proceeding was had, reads as follows: “ If any person or persons shall, on Sunday, in any public house, room, building, or inclosure, or in any storehouse or bar-room, in said city, sell, or furnish for use, any spirituous, vinous, or malt liquors of any kind, such persons shall be deemed guilty of a misdemeanor, and shall pay a fine of not less than §20 nor more than §50, for each and every such offense, to be recovered, with costs, as in cases of other breaches of the city ordinances.” The defendant contended that the charter did not give the power to pass this ordinance; and that, if it did, it was unconstitutional. Both propositions -were overruled by the court.</p> <p>The 4th section of the charter of the city confers these powers: “ The mayor and city council of the city of Houston shall have full power and authority to make and pass such by-laws or ordinances as they shall deem necessary to maintain the cleanness and salubrity of said city; to secure the safety and convenience of passing in the streets; * * to regulate everything which relates to bakers, butchers, tavern-keepers, or of grog-shops, and other persons keeping public houses; * ® and to make other regulations which may contribute to the better administration of the affairs of said corporation, as well as the maintenance of the police, tranquillity, and safety of said city.” (3 Session Laws, 85.) This authority is ample for the enactment of the Sunday ordinance.</p> <p>The enacting the necessary by-laws is an incidental power to a corporation; but these law