Ex Parte Hogg

• Decision Date: 16 April 1913
• Citation: 156 S.W. 931
• Parties: Ex parte HOGG.
• Court: Texas Court of Criminal Appeals

156 S.W. 931

Ex parte HOGG.

Court of Criminal Appeals of Texas.

April 16, 1913.

Rehearing Denied May 14, 1913.

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

Habeas corpus by J. W. Hogg. From an order of the district court remanding him to custody, relator appeals. Affirmed, and relator again remanded to the custody of the marshal.

Moseley & Barcus, of Weatherford, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On November 7, 1912, the city of Weatherford, in Parker county, duly passed and then put into force an ordinance to this effect:

Section 1: That "it shall hereafter be unlawful for any person to peddle any kind of merchandise, patent medicine or nostrum on the public square or any street within the corporate limits of the city of Weatherford, Texas."

Section 2 prescribes as a penalty for the violation of said ordinance a fine of not less than $1 nor more than $25.

On January 30, 1913, relator, Hogg, did sell and peddle on First avenue, one of the public streets of said city within the corporate limits thereof, bananas and apples, which were not raised by him, but were bought to be resold at a profit. Said First avenue was one of the residence streets of said city and about eight blocks from the business portion thereof. In selling and peddling the same he did not interfere with or obstruct the use of the streets by the traveling public. He was a peddler, and had been engaged in that business in Weatherford for several years, and lived therein. Weatherford had about 6,000 inhabitants, and it was incorporated under the general laws of this state regulating the incorporation of cities of over 1,000 inhabitants. The public square in Weatherford was 500 feet square. In the center of this square the courthouse of Parker county was erected, and the courthouse and lawn surrounding it occupied a space of 150 feet square, leaving a space of about 150 feet wide around the courthouse, which had always been used by the citizens of Parker county generally on which farm products, such as hay, oats, melons, vegetables, poultry, etc., have always been peddled and sold to the inhabitants of the city, and said part of said public square and the streets, prior to the passage of said act, had always theretofore been used for peddling and selling said various kinds of merchandise to any one wishing to purchase; that in the sale of such merchandise theretofore the public travel and use of the streets by the inhabitants was never interfered with or molested. Parker county, of which Weatherford is the county seat, is largely a farming county, and most of the farmers thereof, before the passage of said ordinances, brought their farm products to Weatherford, peddled and sold them out in various quantities to any one who would and did purchase them, and used the public square and streets of Weatherford to exhibit and sell their products; that prior to the passage of said ordinance the people, during the winter months, bought wood, and in the spring and summer bought farm products and garden truck, and persons so selling it exhibited in their wagons and sold it therefrom on the said public square and streets in any quantity the purchaser might want. The fruits and vegetables so sold were sold partly by people who raised said things and partly by people who made it their business to purchase from parties who raised them, and then peddled them. The city of Weatherford embraced the territory for about three miles square, with the courthouse in the center.

Under a proper complaint charging appellant, as aforesaid, the proper warrant was issued, under which the marshal of Weatherford arrested and held relator in custody thereunder. He thereupon sued out a writ of habeas corpus before the district judge of said district, who properly heard the same on the state of facts above shown. The district judge held that said ordinance was legal, and he was arrested and detained under the proper proceedings and writ, and thereupon remanded to the custody of the marshal, to which action of the district judge he excepted and appealed to this court.

Under the statute of this state the city of Weatherford and the city council thereof has and had "power to pass, publish, amend or repeal all ordinances, rules, and police regulations, not contrary to the Constitution of this...