This appeal is from a judgment of conviction in the County Court finding appellant guilty of unlawfully carrying on or about his person a pistol.
When the case was called for trial in the lower court the defendant pleaded in bar of the prosecution a former trial and acquittal for the identical offense charged in the indictment, his said former trial and acquittal having been had according to due course of law before the Mayor’s Court in the city of Waco, and for the violation of a city ordinance. Ho objection was made to the form or substance of said plea of former acquittal. It was overruled and stricken out by the court, upon the ground that the Mayor’s Court of Waco had no jurisdiction to hear and determine said case, neither under the city charter nor Constitution and laws of the State; and that the pretended ordinance of the city council under which the mayor had acted in taking jurisdiction of and trying said case was null, void, and of no effect, it having been passed by the city council not only without authority of law but in contravention of a provision of the city charter, which expressly limited the extent to which the punishment imposed by the city ordinances could go; that in passing said ordinance the punishment named therein was in excess of what the charter authorized, and was therefore void.
The ordinance complained of is a literal verbatim re-enactment of our State statute law upon the subject of illegally carrying arms and affixing the punishment. Penal Code, arts. 318 and 319, as amended by the Acts of the Twenty-first Legislature, p. 33. The ordinance provides that the punishment for a violation of the same shall be “by fine of not less than $25 nor more than $200, or by imprisonment in the city calaboose not less than ten nor more than thirty days, or both by such fine and imprisonment; and during the time of such imprisonment such offender may be put to work upon any public work in the city.”
Was this ordinance in violation of the charter provisions? Bearing upon the subject we find the following provisions contained in said charter, viz.:
1. On page 18 of section 21, relating to general powers, it is declared that the city council shall have power “to regulate the carrying of weapons, and to prevent the carrying of the same concealed.”
2. On page 21, same section, it is provided that “ the city council shall have power to pass, publish, amend, or repeal all ordinances, rules, and police regulations not contrary to the Constitution of this State; * * * and to punish violations thereof by fines, penalties, and imprisonment in the prison, work house, or house of correction, etc.; * * * but no fine or penalty shall exceed $100 nor the imprisonment more than fifteen days for. any offense, unless a larger fine and longer imprisonment is herein allowed.” It is this provision which it is contended restricts and limits the punishment allowed to be inflicted by the city ordinances; and it is *51this provision, it is also contended, which nullifies the ordinance with regard to unlawfully carrying arms.
3. We find, however, on pages 22 and 23 of the charter, also included in section 21, this further provision, viz.: “And when there is an ordinance of the city of Waco in force punishing this or any other misdemeanor with as great a penalty as the same is punished by the statute of the State, the Police Court of the city of Waco shall have jurisdiction of such misdemeanors when committed in the corporate limits of the city of Waco.”
It is insisted that in order to give this last provision proper effect, when construed in connection with the other provisions of the charter which we have quoted, its proper construction is that it enlarges the powers of the city council when passing ordinances with regard to all those misdemeanors punishable by State statute, and in such cases permits the ordinance to punish to the same extent as may be permitted by the State law. It is insisted that the words annexed to the provision limiting punishment, to-wit, “unless a larger fine and longer imprisonment is herein allowed,” qualifies the provision as to subsequent provisions wherein a larger fine and imprisonment may have been provided for. This position is unquestionably sound, and would be applicable provided the charter had so declared as to any class of cases therein mentioned. But the charter does not do this in terms. The clause quoted above, in which the additional power is claimed to have been given, does not say that ordinances may be passed inflicting a punishment equal to that denounced by the statute. It only confers jurisdiction upon the police court in misdemeanors when an ordinance is in force inflicting the same penalty as does the statute. If it can at all be construed into giving such jurisdiction where the penalty to be imposed is greater than “one hundred dollars” or “imprisonment more than fifteen days,” then, we think, it could only be fairly and legitimately held to mean such ordinances as were or may have been “in force” when the charter was adopted. We think it would be a strained construction, in the face of the express limitation and the fact that no subsequent provision expressly enlarges the power, to hold by implication that this provision, couched in the uncertain language used, should confer authority in all misdemeanors by the mere passage of an ordinance similar to the State laws, thereby to confer jurisdiction of the same upon the Police Court, to the exclusion of the'State courts. Unless expressly .allowed in the charter itself, we think no ordinance can be legally passed by the city council of Waco after or since the charter was adopted wherein the fine to be imposed was more than $100 or the imprisonment greater than fifteen days. If the city ordinance had been “ in force” when the charter was adopted there might have been some plausibility in the position .and argument of learned counsel for appellant. But as it is, the charter was adopted by the Legislature on the 19th of February, 1889, and the ordi*52nance in question was passed by the city council of Waco on the 21st day of ¡November, 1889.
We are of opinion that the ordinance is void, because in excess of the. authority conferred by the charter upon the city council.
The ordinance being void, the Police Court of Waco had no jurisdiction; to try cases under it, and that court being without jurisdiction, the appellant's plea of former acquittal in said court was without merit and was not maintainable. The County Court, therefore, did not err in overruling and striking it out.
Special exceptions were reserved in behalf of the defendant to certain-portions of the charge of the court to the jury, but no special or additional-instructions were asked.
We are of opinion that the exceptions were not well taken, and that, the criticisms upon the charge, when taken and considered as a whole; are not maintainable. It was a fair and sufficient exposition of the law of the case.
We have found no error for which the judgment in this ease should be reversed, and it is therefore affirmed.
Affirmed.
Judges all present and concurring.