This case comes before us on the State's motion for rehearing. The case is stated in the original opinion, except the provision of the charter under which the ordinance was assumed to be based, is not given, and is, as follows:
"Sec. 96. To restrict the sale of tickets, passes, or other evidence of the right to travel on any railroad or street railway to duly authorized agents of the railroad or street railway company issuing or authorizing the issuance of the same, and to prohibit the sale of all tickets, passes or other evidence of the right to travel on any railroad or street railway by any person other than duly authorized agents of the railroad or street railway company issuing or authorizing the issuance of same, and to provide penalties for a violation of any ordinance passed under this power."
Applicant contends that he should be enlarged because the Legislature could not delegate to the City of San Antonio any such power as is attempted to be delegated in section 96 of the charter because (1) The power sought to be delegated is not a mere matter of police regulation. (2) It is in violation of provisions of article 3, section 1, of the State Constitution, which vests the legislative power of the State in the Legislature. (3) It is contrary to and in violation of section 2, article 10, of the State Constitution, because it is an attempt to confer on the city council of the City of San Antonio the power to regulate railway traffic and the sale of tickets therefor.
In disposing of the case in the original opinion reference was made to the Jannin case, 42 Tex.Crim. Rep., and it was held that said case was applicable, and that a similar law to this ordinance was held to be unconstitutional. On inspection of that decision it is evident that the proposition on which that case was reversed is not in this case. The doctrine was there announced that the law passed by the Legislature, which confined the sale of tickets to regularly authorized agents of railroads was valid under the police power of the State. The case was reversed, because in that law power was conferred by the Legislature on the railroads to designate the character of tickets which scalpers were prohibited to deal in, thus giving to the railroad companies the power to say what was or was not a criminal offense. In accordance with the Jannin case, supra, undoubtedly the Legislature has the power to prohibit and punish the sale of railroad tickets by others than the authorized agents of said companies. Can this power be delegated to a municipality, such as the City of San Antonio? If there were a State law on the subject inconsistent or incongruous with the municipal ordinance, another question would arise. And it may be conceded that, under the rule announced in Curtis v. Ry., 63 S.W. Rep., 149, and Arroyo v. State, 69 S.W. Rep., 504, that the Legislature could not authorize a municipality to pass a law inconsistent with the State law *Page 618 on the same subject. However, the State law on the subject being unconstitutional (Jannin's case) there is no law of general application regulating the sale of railroad tickets by scalpers. So the question is simply, in the absence of any State law on the subject, can the Legislature authorize a municipality by ordinance to make penal the sale of railroad tickets by others than the agents of such railroads. There is nothing in the Constitution prohibiting the exercise of this power, if it is only a delegation of such legislative power as may be exercised by a municipality. While as a general rule the Legislature cannot delegate its power to make laws, yet as a well recognized exception to this, is the delegation of such police power as may be properly exercised by cities. Cooley on Const. Lim., p. 138, 226; Smith's Mod. Law of Mun., Cor. vol. 2, secs. 1319 to 1324 inclusive, also sec. 498.
In Texas this doctrine has even been carried to the extent of contravening State laws on the same subject. Davis v. State, 2 Texas Crim. App., 425; Ex parte Ganza, 28 Texas Crim. App., 381; Reuter v. State, 67 S.W. Rep., 505. However, this view may be overruled in Arroyo v. State, 69 S.W. Rep., 503. See further on this subject State v. Binder, 38 Mo., 450; State v. Clarke, 54 Mo., 17; State v. DeBar, 58 Mo., 395; Siebold v. Peo., 86 Ills., 33; Village of St. Johnsburg v. Thompson, 59 Vt. 300; Mayor, etc., v. Minor, 70 Ga. 191; 1 Dillon's Mun. Cor., secs. 87, 88, 308.
Nor does the ordinance in question deprive any citizen of equal rights with other citizens, or deprive him of the right to carry on a lawful occupation or to transfer his property as he sees fit. A reading of the ordinance shows, when fairly construed, that it confines the sale of tickets to agents of the particular railroad, and as is announced in Jannin's case, it is competent for the Legislature to do this. As was also held in said case, a railroad ticket is not in the strict sense of the term, property, but is a token, authorizing the party who purchased it to be transported. If it be conceded that this is quasi-property, yet under the police power of the Legislature its use can be regulated.
The question as to whether such ticket can be absolutely forfeited if the party purchasing it does not see fit to use it, is not presented in this case. Some of the cases hold that in order for a law on this subject to be valid, it is not necessary to make provision for the redemption of the ticket in case the purchaser does not use it. Burdick v. Peo., 36 N.E. 494; Corbett's case, 59 N.W. 317. As stated, however, this question is not before us here, and it is not necessary to decide it.
The law in question is not violative of any provision of our Constitution and we will not presume, in the absence of proof, that due publication was not made of the charter. Nor does the act deny to the applicant in this case due process of law, or the equal protection of the law by granting special privileges to railroads, but as is held by the great current of authority, it is within the police power of the *Page 619 Legislature. For other cases on this subject, see 28 Am. Eng. Ency. of Law, 2nd ed., p. 199.
The motion for rehearing is granted, and the relator is remanded to custody.
Relator remanded.
DAVIDSON, PRESIDING JUDGE, dissents and adheres to his original opinion in this case, which will be reported with the case.