Relator was charged with a violation of a city ordinance of the city of Clarksville, Texas, relative to driving an automobile within the corporate limits of said city at a greater speed than 30 miles per hour, and upon his trial therefor he was fined by a jury the sum of $25.00.
Within the proper time he gave notice of appeal to the district court of Red River County and filed an appeal bond. Thereafter, his appeal was dismissed by the district court and a capias pro fine was issued from the corporation court of Clarksville, and relator was taken into custody thereunder in Dallas County. He sued out a writ of habeas corpus before a district judge in Dallas County, and upon a hearing he was remanded to the custody of the Clarksville authorities. *Page 168
There are different propositions urged before this court relative to procedure and jurisdiction in the courts below, a decision of which is not necessary on account of our disposition of the cause and are therefore pretermitted.
The present state statute, Art. 827a, Sec. 8 of Vernon's Ann. Tex. P. C., regulating the speed of vehicles in towns or villages, whether incorporated or not, allows no greater speed than 30 miles per hour. Article 827a, Sec. 9-b, provides a penalty for a violation of such article by a fine of not exceeding $50.00 for the first offense, and not exceeding $200.00 for the second offense, and not exceeding $500.00, or imprisonment in the county jail not exceeding 60 days, or both such, for each subsequent offense thereafter.
The ordinance of the city of Clarksville regulating the speed of motor vehicles within such corporate limits provides as a penalty for a violation thereof "any sum not exceeding one hun($100) dollars."
In 30 Tex. Jur., p. 305, sec. 168, it is said, in substance, that an ordinance which regulates the same thing and defines substantially the same offense as a state statute but prescribes a greater or less or different penalty than that prescribed by statute is void. This rule has been announced in many cases cited on page 305 of the text mentioned. See Ex parte Jonischkies, 92 Tex.Crim. R., 244 S.W. 997; McLain v. State, 31 Tex.Crim. R., 21 S.W. 365; Brewer v. State,113 Tex. Crim. 522, 24 S.W.2d 409. See also Branch's Ann. Tex. P. C., p. 224, sec. 416.
If the ordinance under which the conviction was had herein is void, then such can be made available upon a writ of habeas corpus. See Branch's P. C., p. 228, sec. 430; also 21 Tex. Jur., p. 429, sec. 10.
On account of the difference in the penalty between the city ordinance and the state law, we hold such penalty of not more than $100 in such ordinance to be void, and relator should have been discharged herein. Thus believing, the judgment is here reversed and the relator ordered discharged.
ON STATE MOTION FOR REHEARING.