DISSENTING OPINION OP HÜBT, J.
Huet, Judge.While it is very unpleasant for me to disagree with my brethren, yet I must dissent from the opinion and conclusion reached in this case.
*590The position assumed in the opinion of Judge Willson is that, as article 186 of the Penal Code makes it a penal offense for any merchant, grocer or dealer in wares or merchandise, or trader in any lawful business whatever, to barter or sell on Sunday, article 391, Revised Statutes, does not give the city authority to permit a citizen of the city to sell or barter on Sunday. That the power to prescribe the hours for closing the business houses on Sunday is no authority to permit selling or bartering on Sunday; and hence, there is no conflict between article 391, Revised Statutes, and article 186, Penal Code. That the penal statute relates expressly and exclusively to the sale or barter of wares, etc., on Sunday; that it does not prohibit the keeping open those establishments where such sales are made; that this matter, to wit, the closing up such houses, is given over to the cities. In short, that all the authority which can be derived from article 391 is to prescribe the hours for closing — shutting up — certain business houses on Sunday.
What, therefore, does the word “ closing” mean as used in article 391? Is it simply to shut the doors of the business houses? Let us suppose that we had no law punishing the selling or bartering on Sunday; that article 186 of the Penal Code did not exist; and that under article 391 the city should prescribe that such houses should be closed from 9 A. M. to 4 P. M., annexing a penalty for a violation of such ordinance. A is charged with selling whisky or goods after 9 A. M. and before 4 P. M. on Sunday. The proof shows the sale, but that the doors of the house were closed. Would A be guilty?
In Kurtz v. The People, 33 Mich., 279, the defendant was prosecuted to conviction for selling liquors at retail on Sundajq under a certain clause of the statute which reads, “all saloons, restaurants, bars, bar-rooms in towns or otherwise, and all places of public resort where intoxicating liquors are sold, either at wholesale or retail, shall be closed on Sunday; ” and the statute further provided that “ any person who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $25 nor more than $100,” etc.
When this case was decided the supreme court of Michigan was composed of Cooley, Campbell, Marston and Graves. Judge Campbell, who delivered the opinion of the court, says: “There is no ambiguity in this statute. It very clearly intends to close up the places named against liquor selling on Sundays. . . . It is not important on this record to examine critically into the meaning of *591the term ‘ closed 7 as applicable to houses, rooms or parts of rooms. It is clearly meant that the sales at least shall be entirely stopped, and the traffic shut off effectually, so that drinMng, and the conveniences for drinking, shall be no longer accessible, and those who frequent them for that purpose shall be dispersed. Common sense will dispose of such cases readily enough. Everybody knows practically what closing a saloon or drinking place means, and there is no occasion for seeking or solving imaginary difficulties.”
It follows, therefore, that if the law declares, under penalty, that certain business houses shall be closed on Sunday, or any other day or time, the business pursued or carried on in such houses shall cease,— be suspended. Mot merely that the doors of such houses shall be shut, but that the traffic or business shall be entirely shut off effectually.
If, therefore, to “ close ” a house means to effectually stop the business or traffic of such house, and the city has the power and authority to prescribe at what hours the business or traffic shall cease on Sunday by ordering the houses to be closed, most evidently a failure to close before or after the time prescribed would not be a violation of either the Penal Code or of the city ordinance. For if the city has the right,— power,— to say when,—• at what hour,— the houses shall be closed, it has the right to permit the houses to be kept open before and after the time prescribed for closing the same. I mean by closing and opening, that, if closed, the business or traffic shall cease; if open, that the business or traffic carried on in such house may continue. The power to close a house means to effectually stop the traffic or business of such house; and from such power being granted, when exercised by the city, it is implied that those engaged in the business may keep open, sell or barter on Sunday, before and after the time prescribed for closing these houses. To hold otherwise would convert the law into a snare and a deception.
The city orders, under the statute of the State, that certain business houses be closed from 9 A. M. to 4 P. M. on Sunday. The merchant, grocer or saloon-keeper obeys the order. He is nevertheless prosecuted for selling on Sunday. He pleads the general act of the Legislature giving to his city authority to prescribe the hours for closing his house on Sunday, and the ordinance. The State replies this may be so, but she prescribed from 12 Saturday night to 12 Sunday night, and the city from 9 until 4; therefore there was no time allowed for selling, etc. The merchant replies that he is of the opinion, if this be so, that there has been “ much ado about nothing,” and that law is a very strange thing anyway.
*592The next position of Judge Willson is that the ordinance is in direct conflict with the penal statute (Penal Code, art. 186), and is for this reason invalid. Mow, in one sense there is a conflict and in another there is not. Mr. Dillon, treating on conflicts between charters and a general law of the State, says: “It is a principle of very extensive operation that statutes of a general nature do not repeal, by implication, charters and special acts passed for the benefit of particular municipalities; but they do so when this appears to have been the purpose of the Legislature. If both the general and the special acts can stand, they will be construed accordingly. If one mxost give way, it will depend upon the supposed intention of the law-makers, to be collected from the entire legislation, whether the charter is superseded by the general statute, or whether the special charter provisions apply to the municipality, in exclusion of the general enactment. So, particular provisions of charter should be read and construed in the light of the whole instrument, of all preceding charters, of the general legislation of the State, and of the object of the Legislature in the erection of municipalities.” (Dillon’s Mun. Corp., sec. 87.)
It will be seen that we have general legislation on a particular subject in article 186, Penal Code, and special legislation on the same subject in article 391, Devised Statutes. This being the case, what is the rule? It is that general legislation must, in the absence of anything showing a different intent on the part of the Legislature, give way to inconsistent special legislation on the same subject. (See these authorities: State v. Morristown, 33 N. J. (Law), 57; Cross v. Morristown, 3 C. E. Green (18 N. J. Eq.), 305; State v. Trenton, 7 Vroom, 198; State v. Bronin, 3 Zabr., 484; State v. Clark, 1 Dutch., 54; State v. Jersey City, 5 id., 170; Jersey City v. R’y, Co., 20 N. J. Eq., 360; Goddard, In re, 16 Pick., 504; R. R. Co. v. Alexander, 17 Gratt., 176.)
When considered in this light, there is no conflict. The general law operates all over the State, as well in incorporated cities as elsewhere, with power to the cities to change the law within the city limits.
But concede the conflict, being general and special legislation on a particular subject, if there is a conflict, the general law must yield to the special, unless the legislative intent appears otherwise. Prima facie, therefore, the special law prevails, and where in the whole range of legislation have we any evidence of legislative intention that the general law shall prevail? The rule is that the special legislation shall prevail unless something appears showing a different intent on the part of the Legislature, and we have not *593found an expression, from our Legislature anywhere evidencing a different intention.
In support of the proposition that, as the ordinance is in direct conflict with the general law and is therefore invalid, Judge Willson cites § 319, Dillon’s Mun. Corporations. In this section Mr. Dillon is not treating of conflicts in charters and general laws, but alone upon the power of corporations to pass by-laws without grant of power therefor. In this case there is express authority given the city to prescribe the hours for closing certain houses. Under this special grant of power the city claims the right to pass an ordinance prescribing the hours, and that, when such ordinance is made, it supersedes the general law upon this particular subject. If there be no such authority granted, it is evident that the ordinance is void for want of authority to pass it.
We have given our views on this subject in Craddock v. The State, 18 Texas Ct. App., 567, and I do not feel disposed to elaborate further. But it may be urged that in the Craddock case the city had a charter in which this provision was contained. This is true, but the act of 1875 (March 15) is the charter of any town or city in this State which may organize under its1 provisions, to the same purpose and effect as would be a special charter; and the powers granted by the general act of March 15, 1875, will be construed as favorably to the city as if granted by a special act or charter.
I am of the opinion that the judgment should be reversed and the case ordered dismissed.
Affirmed.
[Opinions delivered December 16, 1885.]