WOODLEY, Presiding Judge.
This is a habeas corpus proceeding attacking as void the statutes under which the relator was convicted. Being in custody under capias pro fine or commitments, the relator's petition presented to this Court was ordered filed and set for hearing on the question of whether or not the writ should issue and bail was granted.
The two convictions were in County Criminal Court at Law No. 1 of Harris County upon appeal from convictions in the Corporation Court. The punishment assessed in each case was a fine of $35, hence the petitioner was without the right to appeal to this Court. Art. 53 Vernon's Ann.C.C.P.
The complaint in both cases alleged that the petitioner was the agent and employee of Mike Persia Chevrolet Corporation, a corporation which was then and there a merchant and trader.
In Cause No. 181,137 the charge was that the petitioner, while acting as such agent and employee, offered automobiles for sale on two consecutive days of Saturday and Sunday, June 22, 1963 and June 23, 1963.
This conviction was for violation of an Act of the 57th Legislature (1961) First Called Session, page 38, Ch. 15, which is designated and will be herein referred to as Art. 286a Vernon's Ann.P.C.
The conviction in Cause No. 181,140 was for violation of Art. 286 Vernon's Ann. P.C. The complaint charged that while acting as such agent and employee the petitioner herein permitted the place of business of said corporation to be open for the purpose of traffic on Sunday, June 9, 1963.
It is the contention of the petitioner that both Art. 286 and 286a Vernon's Ann.P.C. are void.
Art. 286a Vernon's Ann.P.C., including the caption, reads:
(2) consecutive days of Saturday and Sunday, or the compelling, forcing, or obliging of employees to sell certain named items; providing exemptions; declaring violation to be a nuisance and authorizing persons to apply and obtain injunctions restraining violations of this Act; and declaring an emergency.
The petitioner's first attack upon this statute is that the title or caption does not give notice that the Act contains a criminal penalty and that it affirmatively manifests that it does not provide a penalty.
A liberal construction will be indulged to uphold the title of an Act of the Legislature. Brown v. State, 57 Tex.Cr.R. 269, 122 S.W. 565; Davis v. State, 88 Tex.Cr.R. 183, 225 S.W. 532; McCarthy v. State, 153 Tex.Cr.R. 149, 218 S.W.2d 190.
All provisions germane and incidental to, auxiliary of, having a mutual connection, or that in any way tend to effectuate the general purpose and scope of an Act are held to be comprehended thereby; and an Act with the phrase "An Act to prohibit" preceding the main subject as expressed in the caption is sufficient to embrace a provision in the body of the Act penalizing persons violating it and such is not obnoxious to the Texas Constitution. See English v. State, 7 Tex.App. 171, cited in Albrecht v. State, 8 Tex.App. 216; and in Floeck v. State, 34 Tex.Cr.R. 314, 30 S.W. 794, which notes that no penalty was indicated specially in the caption construed in the Albrecht case. Ex parte Mabry, 5 Tex.App. 93; Johnson v. Martin et al., 75
Petitioner contends, however, that the declaration in the title that a violation is a public nuisance subject to injunction affirmatively manifests that the body of the Act did not contain a penal provision and that injunction and not a fine or imprisonment was the penalty. He cites in support of such contention Rotner v. State, 122 Tex.Cr.R. 309, 55 S.W.2d 98, where the penalty was changed in the body of the act amending Art. 1316, though the title gave notice that it was an act to amend said Article "further defining the offense of an attempt to commit arson."
He also cites Gilbert v. State, 122 Tex. Cr.R. 542, 56 S.W.2d 880, where the penalty was changed without any notice of intention to do so in the caption. Also the petitioner cites the recent case of Ex parte Meyer, 172 Tex.Cr.R. 403, 357 S.W.2d 754.
The writer did not concur in the holding that the caption to the Election Code "affirmatively suggests that it contains no penal provision." However, in the title to the Election Code there was no recital that any act or conduct was to be prohibited, and the caption stated that the act was not to be construed as repealing or in any way affecting the legality of any penal provision of existing law.
We do not agree with the petitioner's contention that because of the reference therein to injunction the caption manifests that the Act did not prescribe a penal offense or that the authorities cited support such contention.
The second point of attack upon Art. 286a Vernon's Ann.P.C. is bottomed upon the allegation of the complaint that the petitioner herein acted as agent or employee of a corporation in offering automobiles for sale on Saturday June 22 and Sunday June 23, and the fourth point is that there was no evidence that the petitioner committed the act prohibited by the statute.
Neither of these grounds of attack is sustained. They relate to the form of the complaint and the sufficiency of the evidence respectively, neither of which is ground for attack upon the legality of the confinement of the petitioner by habeas corpus. See Ex parte Vaughan, 93 Tex. Cr.R. 112, 246 S.W. 373; Ex parte Sanders, 169 Tex.Cr.R. 107, 332 S.W.2d 332.
Point three attacks Art. 286a as so vague and indefinitely framed and of such doubtful construction that it cannot be understood, either from the language in which it is expressed or from any other written law of this state.
This contention is predicated for the most part upon Section 5a of Art. 286a wherein the Legislature stated that it was their intent that Articles 286 and 287 of the Penal Code of Texas are not to be considered as repealed but that the provisions of Art. 286 and 287 "shall not apply to sales of items listed in Section 1 which are forbidden to be sold on the day or days named in this Act."
Art. 286, omitting the portion which relates to places of public amusement, provides:
In the early case of Searcy v. State, 40 Tex.Cr.R. 460, 50 S.W. 699, 51 S.W. 1119, 53 S.W. 344, this Court, in upholding the constitutionality of the statute which is now Art. 286, construed the provision of what is now Art. 287 (which exempts keepers of drug stores) as an exemption in favor of the articles sold, and not a personal exemption in favor of the person who deals in such articles.
In Saleh v. State, 91 Tex.Cr.R. 316, 239 S.W. 207, 21 A.L.R. 752, a merchant in the cold drink and confectionary business and who sold ice cream was convicted for selling a glass of milk chocolate.
In reversing the conviction the Court said:
The effect of Art. 286a was to exempt the sale of the items listed in Section 1 from the provisions of Art. 286 in the same manner that the sale of other articles had been exempted by Art. 287 Vernon's Ann.P.C., and to make it unlawful to sell or offer to sell any of the items listed in Section 1 on Sunday only if such items were sold or offered for sale on the previous day (Saturday).
As to the sale of any merchandise not listed in Section 1 of Art. 286a, or some other statute, Art. 286 has not been repealed.
(It is interesting to note that the 58th Legislature in 1963 passed an act that has also been designated as Art. 286a Vernon's Ann.P.C. (Acts 1963, p. 95, Ch. 55) which provides that the provisions of Art. 286 Vernon's Ann.P.C. shall not be applicable to bowling alleys.)
We find no merit in the view that Art. 286 makes it unlawful for a dealer in merchandise that may be lawfully sold on Sunday, to permit his place of business to be open on Sunday for the purpose of making such sales. We are cited to no authority and know of none that would support such a holding.
We conclude that petitioner's conviction under Article 286 Vernon's Ann.P. C. in Cause No. 181,140 for permitting his place of business for the sale of automobiles to be open for traffic on Sunday June 9, 1963, is void, the sale of motor vehicles being excepted from the provisions of Art. 286 Vernon's Ann.P.C., under which conviction was obtained, by Art. 286a Vernon's Ann.P.C.
Our construction of Section 5a of Article 286a, as to its effect upon Art. 286, we think answers the attack upon Art. 286a as being too indefinite and uncertain. We conclude that the petitioner is lawfully restrained under the commitment or capias pro fine in Cause No. 181,137 in which he was charged with violating Art. 286a
The petition for writ of habeas corpus is denied.