"This case is pending before us on appeal. James Henderson, having obtained a license under the state law as a retail malt dealer in the city of Galveston, on July 8, 1908, applied to the city authorities of said city for a license, which they refused, as the board of commissioners had passed an ordinance prohibiting the keeping for sale of malt and other liquors in the part of the city in which plaintiff's saloon was situated. On July 10, 1908, the plaintiff Henderson brought this suit in the district court of Galveston county against the city, its mayor and tax collector, the defendants, for a mandamus to require the city collector to issue him a license as a malt liquor dealer, as authorized by his state and county license, and for an injunction to restrain the city authorities from interfering with him in carrying on said business at the place designated in his application. The defendants set up, in answer to plaintiff's demand, that under an ordinance designating places at which liquor could be sold in said city, the plaintiff was prohibited from carrying on the business as liquor dealer at the place designated in his application.
"The legislative act, under which the ordinance was passed, was challenged as unconstitutional by the third paragraph of plaintiff's original petition, which is as follows: `And plaintiff further alleges that said ordinance and said act of the Legislature are invalid and illegal, because the latter purports to be an amendment (Sp. Laws 1907, p. 661, c. 73) of section 34 of an act entitled "An act to amend an act to incorporate the city of Galveston and to grant it a new charter and to repeal all pre-existing charters approved April 18, 1901, and to repeal all laws in conflict therewith," approved March 30, 1903 (Sp. Laws 1903, p. 262, c. 37), by adding thereto the following: "The board of commissioners of the city of Galveston are hereby authorized to license, tax, regulate and prescribe the location of all places within the corporate limits of the city of Galveston wherein spirituous, vinous, malt or medicated liquors or medicated bitters capable of producing intoxication are kept for sale." Section 34 of said act or charter contains various subdivisions, and in the purported amendment the same was not re-enacted, as required by section 36, art. 3, of the Constitution, which provides that: "No law shall be revived or amended by reference to its title but in such case the act revived or the section or sections amended shall be re-enacted and published at length." And plaintiff alleges that said law was sought to be amended by reference to its title, and the section amended was not re-enacted nor published at length, wherefore the said proposed amendment is null and void, and any ordinance founded upon it necessarily fails.'
"The eighth paragraph of the petition contains the following allegations: `(8) The said ordinance and amendment of the charter purporting to authorize it are illegal and void, because the Legislature cannot lawfully delegate its authority in a municipal charter to set aside, vacate, or suspend or repeal the general laws of the state, and the effect of said ordinance is to repeal or suspend the laws of the state of Texas with relation to the licensing of retail liquor and malt dealers to engage in business in certain territory where local option is not in force, and especially does it seek to repeal or suspend and render nugatory the act of the Legislature of the state of Texas, approved April 18, 1907, being chapter 138, Gen. Laws (Laws 1907, p. 258), passed at the regular session of the Legislature in that year, and generally known as the "Baskin-McGregor law."'
"By his original and supplemental petitions plaintiff in the following language attacked the ordinance as an unreasonable and oppressive exercise of the power attempted to be conferred by the legislative act above set out, viz.:
"`(4) That said ordinance is unreasonable and illegal, and therefore void, because it prohibits the keeping for sale of vinous, spirituous, and malt liquors or medicated bitters capable of producing intoxication, at any place or places within the limits of the city of Galveston, except within the territory prescribed by section 1 of said ordinance, and thereby undertakes to apply and enforce prohibition in the greater portion of the city of Galveston. Considered both with reference to area and population, and in prescribing where such places shall be located, the said ordinance is unreasonable and oppressive, and works a discrimination in favor of certain places, localities, blocks, and parts of blocks and outlots in said city, and allows the sale, or keeping for sale, of such liquors or bitters upon certain lots, blocks, and outlots and upon parts of certain lots, blocks, and outlots, while prohibiting it elsewhere in said city, there being no just, fair
or reasonable ground for such discrimination, and in this connection plaintiff will offer for inspection a map of the city of Galveston, with lines thereon showing the limits sought to be established by the ordinance, and that the prohibited district constitutes by far the greater part of the settled section of said city, both with reference to territory and population.'
"`(7) Said ordinance is unreasonable, and is also unauthorized by the amendment to the charter, hereinbefore set forth, in that the latter undertakes to authorize the board of commissioners to prescribe locations where said liquors or bitters are kept for sale within the corporate limits of the city of Galveston, and it is not a reasonable or legitimate exercise of such power to prohibit such location and such selling, or keeping for sale, in the greater part of the city, considered territorially or with reference to population. The right to prescribe a location must be reasonably exercised and not converted into a denial of a location in a great or the greater part of the city.'
"`(3) And plaintiff avers that said ordinance is unreasonable, oppressive, and discrimatory, and therefore invalid, because: (a) It prohibits keeping for sale of malt and other liquors in about 700 blocks of the inhabited area of the city and permits it in about 140 blocks. It makes it unlawful for at least four-fifths of the inhabitants of the city, being those who live in the excluded district, to keep such beverages for sale, and therefore necessarily precludes them from purchasing them in such district. The territory west of Forty-Fifth street, in which, as appears from said ordinance, such keeping for sale is not prohibited, is outside of the settled part of the city, and sparsely inhabited. (b) Instead of being a fair exercise of the right sought to be conferred by the act of the Legislature, namely, the right to prescribe locations, the ordinance unreasonably prohibits such locations within nearly the whole city, and subjects at least four-fifths of its residents, and especially those at a distance from the open district, to inconvenience and loss resulting from the closing of such places of business, and from the right of dealing therewith, used and enjoyed for many years by the neighbors. The line mainly traverses alleys and cuts into many business blocks, which are also recognized as such by the state law, the ordinance allowing the keeping for sale of beer and other liquors in half the block, and denying it in the other half without any just reason for such arbitrary discrimination.
"`(4) It discriminates between individuals and others in many cases, among which may be mentioned the fact that the line which is extended from Twenty-Ninth street through the alleys between Avenues E and F takes a turn to the south so as to include the south half of block 443 and the saloon thereon, owned or controlled by the Tremont Hotel Company, while other saloons in the half blocks south and southwest are required to close. One of these latter has been in business for 30 years or more. In another case at Thirteenth street and Avenue A, a block or half block is so divided as to leave in the open district only 43 feet, which is now used and occupied by a saloon, excluding the rest of the block. And many other discriminations will be shown to the court upon the hearing of this cause. Also one or more saloons at or near the south terminus of Fifty-Third street, a place of public resort, will be closed under said ordinance.'
"The ordinance in question is as follows:
"`An ordinance to prescribe the location of all places within the corporate limits of the city of Galveston wherein vinous, spirituous, malt liquors or medicated bitters capable of producing intoxication may be kept for sale.
"`Be it ordained by the board of commissioners of the city of Galveston as follows:
"`Section 1. That hereafter any and every place within the corporate limits of the city of Galveston wherein vinous, spirituous, malt liquors or medicated bitters capable of producing intoxication are kept for sale shall be located within the following described territory or upon the following lots or blocks in said city, to wit: All that territory west of a line beginning at Avenue U and...
