Memphis is a town of 600 inhabitants and is incorporated under Arts. 961 and 962, R. S., 1925. The ordinance under consideration reads in part as follows:
"Section 6. It shall be unlawful for any carnival or tent show to operate and no permit shall be issued for any carnival or tent show to operate within a space of three hundred (300) feet from any business house, residence, school or church building within the city limits of the City of Memphis, Texas."
"Section 11. This law shall not apply to street fairs composed of local people for purely charitable purposes and without profit."
After the passage of the ordinance, part of which is quoted above and while (if legal) it was in effect, the appellant conducted a tent show consisting of dramatic performance or play *Page 478 in a tent. He used his own tent set up on a vacant lot. Several actors and actresses participated, and an admission fee was charged. The exhibition took place within 300 feet of several residences and business houses of the city. There were two regularly-established theaters showing in permanent buildings within the corporate limits of the city, occasionally exhibiting dramatic performances. Both were situated within 300 feet of residences and business houses. These establishments were housed and regularly run, and had been charged by complaint with no violation of the law. The facts are brief and in the form of admissions of both the appellant and the state.
We will dismiss the question of discrimination arising from the face of the ordinance with the statement that Sec. 11 applies to "street fairs," while Sec. 6, as applied to the appellant, relates to "tent shows." That the two sections operate upon entirely different subjects seems obvious.
The sole legal question is that which challenges the power of the city to forbid the operation of a "tent show" within the limits prescribed in Sec. 6. That by a proper ordinance enacted within its charter powers, a city, in the exercise of the police power, may exclude particular occupations from certain parts of its corporate limits, is well settled. See Ruling Case Law, Vol. 19, p. 818, Sec. 123. Many illustrations are found in the published reports of this and other states. See Ruling Case Law, supra, pp. 818 to 852, notably Sec. 157, relating to markets; also Newsom v. City of Galveston, 76 Texas Reports, 559, 7 L. R. A. 797; Ex Parte Canto, 21 Tex.Crim. App. 61,17 S.W. 155. This principle is notably true with reference to places of amusement. See R. C. L. supra, p. 867, Sec. 169. The principle is announced in Dillon on Municipal Corporations (5th Ed.), Vol. 2, Secs. 665 and 666. The subject of the ordinance in question seems within the scope of the charter powers of the city. In Title 28, Chap. 4, R. S., 1925, there is conferred upon the city council of cities organized under that title, numerous powers, among them, the right to control the location of business establishments. See Art. 1015, Sec. 9. In Art. 1061, R. S., 1925, many specific powers are conferred with reference to controlling the erection and location of structures for the prevention and reduction of fire hazards.
In the trial of the present case, no effort seems to be made by the statement of facts to acquaint this court of any general conditions existing in the city which would characterize the ordinance *Page 479 as void and nothing upon its face condemns it. The legal presumption is in favor of its validity.
The motion for rehearing is overruled.
Overruled.
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.