Ex Parte Patterson

• Decision Date: 24 October 1900
• Citation: 58 S.W. 1011
• Parties: Ex parte PATTERSON.
• Court: Texas Court of Criminal Appeals

58 S.W. 1011

Ex parte PATTERSON.

Court of Criminal Appeals of Texas.

October 24, 1900.

Original application for writ of habeas corpus by R. W. Patterson. Granted.

James H. Young, Wynne & Smith, and Kearby & Kearby, for relator. W. C. Blanks, City Atty., and Robt. A. John, Asst. Atty. Gen., for respondent.

HENDERSON, J.

This is an original application for a writ of habeas corpus to test the validity of an ordinance locating tenpin alleys in the city of Wills Point. The statement of facts agreed on by the parties shows: That Wills Point is incorporated under the acts of the legislature (title 18, Rev. St.), providing for the incorporation of cities and towns not exceeding 10,000 inhabitants. That the city of Wills Point contains a population of about 2,000, and that said city passed an ordinance to the following effect: "Be it ordained by the city council of the city of Wills Point that an annual occupation tax of fifty dollars, payable annually in advance, shall be levied on and collected from every person, firm, company or association of persons exhibiting, operating or managing, for profit, a nine or ten pin alley or any other alley, by whatever name called, constructed or operated upon the principle of a bowling alley, and upon which balls, rings or other devices are used, or substitutes thereof are rolled, without regard to the number of pins used, or whether pins are used or not, or whether the balls, rings or other devices are rolled by hand, or not. Any such alley used in connection with a saloon, or where money or anything of value is paid, shall be regarded as used for profit. (2) And, whereas, in the judgment of the city council, such alleys are detrimental to the morals, peace and quietude of the city, it is further ordained by the city council that such alley shall not be constructed, operated or maintained within the fire limits of said city, nor within 100 yards of any private residence in said city, nor within 100 yards of any business house in said city, to which people resort for the purposes of trade and barter, and any person or persons, firm or association of persons violating this ordinance, shall, upon conviction in the corporation court of said city, be fined in any amount, not exceeding $100, and each day shall be considered a separate offense. (3) And that this ordinance take effect from and after its passage." That applicant procured a license for the purpose of running a tenpin alley in said city on the 14th day of February, 1900, paying state, county, and city occupation taxes thereon; the last being paid to the city marshal, who issued a tax receipt therefor, containing no restriction as to the location of the alley, except that he was licensed to run within the corporate limits of the city of Wills Point. Said alley was constructed of wood, with an iron roof, and was attached to the rear end of a saloon. The front of the alley was some 60 feet from the front of the street, and the rear of the alley abutted on a public thoroughfare, being an alley in the rear of said saloon. That same was located within the fire limits of said city, and within less than 100 feet of business and residence houses in said city. That the only point within the corporate limits of said city where said alley could have been located outside of the prohibited points, under the ordinance, would be about 600 yards from the business portion of the town, and in a portion of the city remote from any thoroughfare or public place, but on streets which were run into pasturage or tillable lands in the suburbs of said city. It was further shown that said tenpin alley, in its operation, created noise. That it could be heard at night as much as 100 yards from its location.

Relator's contention is that said ordinance is unreasonable and is void. There is no question as to the...