Ex Parte Scott

• Decision Date: 04 March 1936
• Docket Number: No. 18325.,18325.
• Parties: Ex parte SCOTT.
• Court: Texas Court of Criminal Appeals

91 S.W.2d 748

Ex parte SCOTT.

No. 18325.

Court of Criminal Appeals of Texas.

March 4, 1936.

Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Habeas corpus proceeding by C. A. Scott, who appealed from an order refusing his discharge.

Judgment reversed, and petitioner discharged.

Martin & Shipman, of Abilene, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

This is an appeal from an order refusing to discharge appellant upon a habeas corpus hearing.

Appellant was charged by complaint in the corporation court of Abilene, Tex., with being a junk dealer in said city without having obtained or applied for an annual license permitting him to engage in such business. He sued out a writ of habeas corpus in the district court, and upon a hearing was remanded to the custody of the chief of police, from which order he has appealed to this court. He attached to his application for the writ a copy of said ordinance, which defines at length junk, and junk dealers, and penalizes the later when engaging in such business in the city of Abilene without a license, which is made a prerequisite. For many reasons and upon many grounds, the ordinance is attacked. We may not discuss all complaints thereof, but enough to make plain the reasons for our opinion.

We quote the definition of junk as set out in said ordinance:

"Section 1. (a) The term, `Junk' as used in this ordinance is defined to mean and shall include scrap iron or scrap tin or scrap brass or scrap copper or scrap lead or scrap zinc and all other scrap metals and their alloys, and bones, rags, cloth, rubber, rope, tin foil, used bottles, old cotton, secondhand mechanical and garden tools, used or secondhand plumbing fixtures, appliances, fittings, pipes and supplies, secondhand or used clothing, used or secondhand electrical fixtures, fittings, appliances and supplies, used or secondhand gas fixtures, fittings, pipes, appliances and supplies, used or secondhand water heaters, fixtures, fittings, pipes and supplies, and used or secondhand lawn hose or harness, used or secondhand doors, window sash or glass, mantels or parts thereof, used or secondhand automobiles, purchased for the purpose of being dismanteled, and all automobile parts and accessories, and used or secondhand automobile tires and tubes."

Section (b) of said ordinance, which immediately follows that above quoted, is as follows: "The term `Junk dealers' is herein used in its ordinary and usual trade acceptance meaning, and shall also mean and include any person or persons, firm, partnership or corporation engaged in any of the following: Collecting, handling, buying, selling of any of the articles mentioned in subdivision (a) of this Section, and all persons engaged in the buying and selling of goods, wares and merchandise of which junk, as herein defined, is a part, except any person, firm or corporation purchasing junk exclusively for the purpose of manufacture, shall be held to be junk dealers within the meaning of this ordinance."

We have no statutory definition of junk, in this state. In the Century Dictionary we find the following definition: "Old or condemned cable and cordage, cut into small pieces, used when untwisted for making points, gaskets, swabs, mats, etc., and picked into fibers to make oakum for calking seams." It is stated as part of the definition above referred to that the term is nautical in origin, but that it has been extended from the above to where, as further set forth in the same definition in the same work, it is held to mean as follows: "Old worn out and discarded material in general, that may be turned to some use; especially old rope, chain, iron, copper, parts of machinery, and bottles gathered or bought up by tradesmen called junk dealers, —hence rubbish of any kind, odds and ends." We find substantially the same definition in 24 Cyc. at page 79, supporting which latter definition are cited City of Duluth v. Bloom, 55 Minn. 97, 56 N.W. 580, 21 L.R.A. 689; Carberry v. U. S. (C. C.) 116 F. 773; Cadwalader v. Jessup & Moore Paper Co., 149 U.S. 350, 13 S.Ct. 875, 37 L.Ed. 764, in which last case the term "junk" was held not to include secondhand bottles; Pitts v. Vicksburg, 72 Miss. 181, 16 So. 418; Henningberg v. State (Tex.Cr.App.) 72 S.W. 176; ...