Auto Transit Co. v. City of Ft. Worth

Tеs.) CITY OR FT. WORTH CO v. TRANSIT AUTO attempt upon an Constitution. is apparently receiver, the face come part McWhirter, pursued by hank, when the note, provision quoted. receiver of The charge parties assets, invoke the insolvency, to collected after Edwards’ lar Constitution, particu- and abstract fund for was that contention applied benefit of the creditors other stockhold- money not have should per- stock, ers after the If crash has come. subscription courts but should to the have been pleaded by individually, indemnities to be mitted holders, stock- him credited to corporations upon by have become in- sued to the note as an offset allowed solvent, Supreme conditions are conceivable where Missis- Court the receiver. The defaulting corporation might creditors of a look sippi said: into vacuum. supra] has no “That section [850_, simply provides estopped in that there can be no valid without the of this case. It We the solution also think McWhirter to subscription to stock deny that he is a stockholder the condi- rulе, therefor. The in cash disposes the record. This discussion n declared to secure was intended that section assignments. depositors, of all other corporation and its creditors defaulting subscriber. .and Believing to benefit prop- that the court rendered the * * * subscription of the bank The stock judgment, er it is affirmed. company, on the faith was the means it, given sub- which scriber was liable for his credit during debts contracted year ownership stock, and for a after subscrip- TRANSIT et al. CO. CITY OF FT. of his to the amount had transferred*** purpose (No. of these statutes The 8304.)* tion. WORTH et al. They plain. perfectly and all (Court Appeals of Civil of Texas. Ft. Worth. protecting purpose of the de- enacted Nov. On 1915. Motion for Re- They positors of a bank. and creditors hearing, 15, 1916.) Jan. defaulting passed to benefit view * * * Appeal himself out Assignments Edwards held stockholder. 1. and Ebrok <©=>719— dealings Necessity. bank his conduct all Error — * * * * shares, appeal declining six these as stockholder order On from an con- * * having temporary injunction, appellants held out towards himself tinue a creditоrs, depositors stockholder containing as to file briefs formal as- * * * signments take him at his word and law will of error. a stockhold- him as if he fact were deal with er, is was a stockholder own course cases, Appeal [Ed. Note.—For see other words, he that he or not. In other he was whether Error, Dig. 2968-2982, Cent. Dec. §§ creditors, deny against estopped as Dig. @=>719.] shares, by to these as six Injunction <@=>85 Subjects 2. — of Relief— dealing in the matter.” Enforcement of Ordinances. corporation, injunction applied While, rule, insolvent we to an As aas will stay proceedings, criminal granted sound. think the rule is injunction prevent will threat- supra, by Sawyer Hoag, The case ened criminal enforcement of a Court, was one where validity United States the which is involved to avoid a multi- suits, irreparable plicity injury, suing bankruptcy assignee stock- remedy repeat- at law where regarded note, which, though holder prosecutions seriously destroy impair will as a the insurance between loan rights. property stockholder, Supreme Court of the the United States Injunction, cases, [Ed. Note.—For other see Dig. Dig. said, that: Cent. Deс. §§ <§=>85.] appellant owed for his <@=>1 “The debt which the 3. Courts —“Jurisdiction.” payment and this “jurisdiction” a trust fund devoted is the stock was The company,” (cid:127)of all creditors of the as consider and decide one other appropriated may require. debtor fund could the law claim, payment of his own in an the exclusive cases, Courts, other [Ed. Note.—For see <@=>1. action of set-off. Dig. 6-9, 91-106; Dig. 1-^4, Dee. Phrases, definitions, see Words For other set-off, true, was question case the In that Series, Jurisdiction.] First and Second insolvency, acquired after — — 4. Courts Jurisdiction Court <S=>207 being void, on account the indebtedness Appeals. of Civil prohibitory or constitution- statute some rights are involved in the Where enactment, penal was not involved. attempted al enforcement ordinances al- statutory leged be invalid because of record that McWhirter went shows This Appeals, grounds, the of Civil stitutional years along stockholder, re- for several jurisdiction, though a court of exclusive civil paid by acknowledging ceiving and dividends may into relief ordinance to jurisdiction inquire properly exercise its bank, having grant been earned of the ordinance injunction it should determine suit, bank, plaintiff in this stock. The be invalid. party .a nominal for the benefit of the officers Courts, [Ed. Note.—For state the creditors and stock- @=>207.] holders. bank has defaulted and <@=>2 Law Carriers <©=> —Constitutional attempting upon its state is for the to realize assets Legislation Regulation — 205 —Class executing Jitney the trust Bus.” “Motor An ordinance benefit those entitled to the fund. defining a “motor bus” as not, litigation reality, 'This is between motor vehicle or trackless automobile n bankand McWhirter, with the latter assert- hire, or announced and held out over a route that his is void because in note' violation Digests Key-Numbered <gxs>For Indexes eases see same and KEY-NUMBER in pending *Application for writ of error Court. REPORTER 182 SOUTHWESTERN Validity Monopolies —@=>4 any designated paticular point, 9. of Ordi- to a or within procured, territory, imposing requiring nances. license to be Const, requiring $10, the the Such ordinance did not violate art. a license and fee of 26, providing surety monopoly § for never execution bond conditioned shall injuries allowed, payment by damages or for or death caused it disclosed no intent monopoly pas- negligence or to create a act of the owner or willful Const, sengers company, and operator, taxi- in favor of a street ear § art. does violate cabs, would providing equal rights, vehicles, other all freemen have and rent speculate ex- not be to or sur- man set of is entitled to authorized no men or clusive, separate public privi- or mise as to the existence of such motives on emoluments services, part municipal body, leges, except though ways, taxicabs, legislative public in consideration of or surety probably required such a street rail- result would flow no bond or fee enactment of and license the ordinance. no required operation is way, of the street rail- for cases, Monopolies, [Ed. Note.—For other see only imposed while foe of $3 a license Dig. Dig. @=>4.] 3; Cent. Dee. § on taxicabs and other rent cars. @=>2 Regula- 10. Carriers of—Use Streets — cases, Carriers, ‍‌‌‌‌​​‌​‌​‌‌‌​​‌‌​‌‌‌‌​​​​‌​​​‌​‌​‌​​‌‌‌​‌‌​‌​​‌‍[Ed. Note.—For other see Jitneys. tion of Dig. Dig. <§==>2; 4, 6; Cent. Dec. Consti- §§ parties operating jitneys That or motor Daw, Dig. 691-624; tutional Dec. Cent. §§ pоsition busses are not in a to with an Dig. @=>205.] requiring grant- ordinance as a condition ing operation license for the of motor busses @=>136 Impairing 6. Constitutional Daw — the execution aof bond conditioned for the Obligations Contract —Revocation payment injuries damages or death caused Dicenses. vehicles, their and will therefore be imposing A drdinance more burdensome operation busses, abandon of their motor operation jitneys conditions on the busses than with or motor does not in itself establish the unreasonableness imposed by prior ordinance invalidity of the ordinance. parties operating had motor busses Const, cases, Carriers, complied [Ed. Note.—For see did violate art. § Dig. @=>2.] 5; Dig. Cent. prohibiting impairing §§ Dec. the enactment of law of contracts where it @=2 Regula- 11. Carriers —Use of Streets — that those prior who fee under the Jitneys. might ordinance have a license parties operating jitneys That or motor them under the ordinance for new the unex- pecuniary injury pired term, elect to discontinue the busses will suffer from the or that in case the licensee should op- enforcement of an ordinance of his motor portion eration of such establish unexpired vehicles does not even tend bus term of the fee for the invalidity of the ordinance. refunded would be to him. Carriers, cases, [Ed. Note.—For other see cases, [Ed. Note.—For other see Constitution- Dig. Dig. @=>2.] §§ Cent. Daw, Dec. Dig. 299, 300, 343, 362; al Cent. Dec. §§ Dig. @=>136.] — Municipal Corporations @=>703 Use Regulation Jitneys. — @=>297 of Streets — 7. Constitutional Daw Eminent gives Property The Ft. Worth' charter @=>2 'Taking the board of Domain —Privi- — commissioners exclusive leges and control of board and Immunities. streets, regu- and authorizes the parties operating A speed locomotives, trains, late the jitneys which furnish damages procure or motor busses a license for cars, vehicles, animals, nuisances, and abate imposed, license fee of $10 to of prohibit regulate and restrain the use payment conditioned for the vehicles, conveyances, (automobiles, or other injuries or death caused regulate all street charges n vehicles, fares, tolls, fix authorizing or sus- revocation public railways, hacks, cаrriages, pension upon of the license conviction for vehicles, provide fees, police tax, for license any provision violation of did vehicles, Const, surveillance drivers and owners 17, providing not violate art. § general police powers and to enact and enforce vests board with person’s property taken, damaged, shall be ordinances destroyed applied public use without life, health, property, pre- protect and to adequate compensation being made, or section summarily vent and enforce the abate and remove nuisances 19, providing deprived that no citizen shall be good government, order, and se- life, liberty, property, privileges, or immu- curity inhabitants, and its nities, disfranchised, except manner enjoy police general powers have and due course law the land. city. adopted board an ordinance re- Such cases, [Ed. Note.—For see Constitution- quiring operate persons desiring @=> Dig. Daw, 832-834; Dig. al Cent. §§ Dec. including vehicles, defined as carrying passengers trackless motor Domain, Dig. 3-12; Eminent Cent. §§ hire, Dig. @=>2.] Dec. route, par- over a or to a point, designated territory, ticular file specified to be and within @=>7 “Occupation 8. Dicenses — Tax” —Stat- license, for a giving, utory Provisions. information as vehicle intended Const, Such ordinance did not violate art. proposed operated, driver, route, etc., 8, 2, providing occupation § that all taxes shall that the board providing reasons equal be subjects and uniform the same class of designated license; therein refuse a that no li- levy- the limits of granted except cense should condition that tax, as the license fee was not in the damages bond conditioned occupation tax, moreover, nature of an injuries furnished; for individual death should be placed upon .burdens different individuals en- speci- thereon sureties should furnish gaged of motor busses were the proof insolvency; fied of their the' same, and it is when a discrimination is might require a new or board additional bond. shown between members of the same class promulgated It further rules for the guaranty constitutional in- vеhicles, loading unloading of passengers, voked. passengers, the number of the hours Dicenses, [Ed. Note.—For other see op- which the bus must be @=>7. Dig. 7-15, 19; Dig. Cent. §§ erated, speed etc., operation, made definitions, Phrases, punishable For other see Words thereof ‍‌‌‌‌​​‌​‌​‌‌‌​​‌‌​‌‌‌‌​​​​‌​​​‌​‌​‌​​‌‌‌​‌‌​‌​​‌‍a misdemeanor violations Series, Occupation exceeding $200, First and Second Tax.] a fine authorized the Key-Numbered Digests @=>For. see same in all and KEY-NUMBER oases and Indexes Tes.) AUTO TRANSIT CO. v. CITT OR BT WORTH suspension complied revocation or viction for violations. of the license also. with the said ordinance Held, au- that this was Transit Auto was further company powers thorized under the operated buss- 32 motor owned charter, which the was vested board $17,500, es, well about and had invested its cars the other charter mentioned. oases, Municipal plaintiff [Bd. Note.—For other Oth- $500. about Walton Corporations, 150&-1513; Dec. brought al- also suit was ers for whom leged Dig. <S=>703.] approximately to have invested Rehearing. each; Motion for averred that On and it was $500 sum of Municipal Corporations Regu- 470 would No. effect оf Ordinance the to drive the motor competition <©=>703— op Jitneys “jitney” lation or Motor Busses. of out bus or operation An of ordinance railway com- with the street jitneys busses, or motor as a and give Worth, operating pany in Ft. granting opera- dition to the license for company railway tion of of such of a bond monopoly vehicle execution street to said damages conditioned for the in- for passengers transportation within said juries by operation thereof, or death caused city city; embraces of Ft. Worth discriminatory invalid, though was not nowas there popula- miles, square requirement operation has a and similar about as to the 17% cars, operating of their own many taxicabs or or individuals 100,000; it has about tion of cars, hire, not for by traversed streets which miles of jitneys peculiar- on crowded streets is a business greater adjacent by portion and far the ly dangerous public, duty street to the care and part operators important on the is duty than more live do not inhabitants its performance of such casе of “jitney” for lines, has and that car only occasionally infrequently driving, over conveyance necessary public and some time a utility, streets, danger therefrom is more frequent, city, de- imminent and efficient and and a in ex- economical and is an police power, may properly require ercise its transportation velopment local guaranty a further than it does of others great of the welfare and for the convenience operators of such vehicles will avoid acts city; majority inhabitants of said negligence respond damage of the and for in- city flicted. about in in said are now Municipal [Bd. Note.—For other carry “jitneys,” thousands which Corporations, 1509-1513; day. passengers al- further was Dig. <©=>703.] comply leged petitioners unable to were Appeal Court, provisions re- No. 470 District Tarrant Coun- of Ordinance with the ; ty Brown, $2,500, payable Judge. H. quiring .Marvin the sum a bond in by Company city Worth, mayor Suit the Auto Transit of the of Ft. to the against person others of Ft. Worth and oth- name the whose executed refusing sought principal, ers. From an order to continue and a solvent license surety temporary injunction, plaintiffs appeal. incorporated Af- corporation, Texas, permit firmed. or with state of laws of the state, in this conditioned do business appellants. Wynn, Worth, Ike Ft. legal damages pay principal for in- in- all shall Altman, appellees. Worth, T. A. of Ft. any one, property juries injuries cluding resulting ac- on death BUCK, proceeding by J. This was a negligence or willful act of the count Company, corporation Auto Transit domi- bus, etc., operator owner Worth, county, Tex., ciled Ft. Tarrant un- fee said bond was as the inasmuch Walton, county, J. fessedly C. resident of said prohibitory, such com- and even reasonable behalf of on themselves and 60 oth- charging panies $250 for each $200 “jitney” op- er bus” “motor owners and allegations Further bond executed. against said Worth, repre- erators of Ft. terms, requirements, as to the made mayor commissioners, its sented and four No. _ of said Ordinance enjoin and conditions seeking to Ordi- the enforcement of operation of motor reference to the No. nance and as amended Ordinance “jitneys,” in subdivi- as contained passed by busses sion No. theretofore board said ordinance, “g” 5 of said of section commissioners, regulating discriminatory, alleged petitioners “jitneys,” said motor parlance, in common unnecessary unreasonable constituted city. on the streets of said Both beyond regulation part ordinances were attached to and made a city, the Oonstitutions of the petition. and violated alleged they, Petitioners and the state Texas. they States sued, for whom those had com- alleged inasmuch as it is plied further was practically with Ordinance No. 448 when it became petitioners impossible com- effective, operating and had since been there- ordinance, ply Petitioners also under. that Ordi- injured they greatly prop- passed their would No. nance theretofore rights, Worth, erty provided and would be de- of Ft. owner of privileges guar- register prived and immunities motor-driven vehicle should land, pay the laws of to them license number tax same аssessor they, anteed enforced, per car, should be $1 and collector of through sued, said board and those whom Digests Key-Numbered and Indexes other cases see same and KEY-NUMBER ®=>Ror 182 SOUTHWESTERN REPORTER threatening oí tempting and runs about was 200 cars and at- over the streets city, said to enforce said there are about 100 other restrained, subject unless carriers for hire in would plaintiffs, agents employés, taxicabs, omnibuses, etc., streets, they brought suit, those in case of leged said whose behalf and that none of these mention- carry passenger did not carriers ordinance', compliance ap- insurance al- in said ordinances plicable impossible, “jitneys.” to be ar- innumerable prosecutions vexation, rests and temporary restraining and much A order was harassment, oppression. court, upon hearing the trial June Accompanying, of, support peti- 26, 1915, and in the court declined to continue said pres- Rogers, temporary was an injunction, of E. M. expired affidavit on the Company, ident of Auto hearing, Transit plaintiffs’ prayer and denied incоrporat- effect that do, had been so to to which- order of the court maintaining* owning, ed for the excepted gave appeal. notice of and designed automobiles and other vehicles [1] Plaintiffs have not filed passen- carrying containing assignments briefs ror, formal of er gers, freight, city express, and mail in the and under the law Worth; company of Et. that said (Holbein Garza, to do so v. De La 126 S. W. 1915; “jitneys” its franchise tax that the 42; Ry. Craig, F. & D. W. C. S. 176 W. or “motor busses” in the of Et. Worth 827), but have contented themselves with fil approxi- numbered about and carried ing a memorandum of authorities. But 30,000 mately have, for a five- we had the benefit of an ex able and fare; many great cent by appellee. haustive brief furnished operating “taxicabs” and in Ft. “rent cars” On the threshold of of this the consideration Worth, five-passen- and said “rent cars” were questions cause arewe met with affect- two ger automobiles, practically Ford identi- jurisdiction court, this to wit: operated by plaintiffs, cal with those and First, injunction whether an will lie re- operated cars were over the streets strain the enforcement a criminal statute “jitneys,” plaintiffs’ the same manner as ordinance; and, second, though even it be dangers; the same attendant risks and that admitted that in certain instances such re- charged said cars taxicabs may granted, may lief passenger as times much for as grant by such relief be exercised court charged; plaintiffs the Northern Texas jurisdiction, exclusive civil or has the author- Company private corporation Traction is a ity delegated exercising to courts crim- operating street cars certain streets jurisdiction? inal cents; five of Ft. Worth a fare of [2, said, 3] First. As has been often dangerous that an is not a ma- automobile injunction rule that will not .an chine, conveyance, or an unsafe means of and granted stay proceedings, but, criminal that a careless or reckless driver makes authorities, as we understand the does this just automobile as hazardous of an injunction not mean that an will not lie to “private he is car” “rent prevent prosecution under a criminal ordi driving “jitney” or he is car” as whеn nance, prevent toor the threatened enforce bus”; “jitneys” constituted “motor ment of such criminal where great city the inhabitants of the convenience to validity of the ordinance is involved. Worth, many choosing of whom of Ft. seems clear from the authorities preferring of travel. Affiant mode injunction latter case will be by compliance his com- further averred multiplicity suits, irrep avoid a arable to avoid provisions pany Ordinances Nos. with the injury, and that there "and and'the it of various 442 remedy repeated prosecutions at law where registration money license fees sums of and the seriously impair destroy property will rights. indemnity contracts, purchase equity may ju A court of entertain ordinances, enjoin risdiction suit the enforcement bonds, impossible personal to make statute, of an invalid absence in Ordinance No. in the alternative vided impose of lawful the restrictions wholly impossible and was may irreparable of the statute result in loss by surety bonds with the party concerned; “jurisdiction” to the plain- companiеs, it would cost to consider and decide $6,600 procure company the bonds ex- tiff may require. other, as law Nolen v. by surety company. ecuted (D. C.) Reichman 225 812. In the Fed. case from E. W. Scott (cid:127)Also there were affidavits Angeles, Dobbins Los 25 containing practically and Adams B. Vera 49 L. Ed. the United States sign- Also averments. an affidavit Supreme language: uses Court persons alleged to be citizens some property rights “It is well where settled to the effect that the Northern destroyed, unlawful interference crim- will operates Company Texas Traction owns and proceedings under a inal void law or ordinance railway system a Worth, of Ft. be reached controlled a decree of equity.” trackage. and has miles about 77 a court of Tex.) OF TRANSIT CO. v. CITY FT. WORTH id, ities petition, this court involved lidity of the tion: petition. Warfield, Am. ordinances statutory ordinances are ness is with leged not entitled tion, suits, ground in violation of the restrictive of, tion violation. the equity jury complained quate remedy for each be answered in the affirmative. las, 172 S. W. 17, ordinance should determine said оrdinances to be inval validity thereunder, Am. St. hattan language: v. Somerset Am. authorities ality Colorado, 129, tonio, legitimate business, except Ass’n, adequate? It cense under Ordinance cepted stated, Surety St. “The “It High Therefore we hold In We now multiplicity to St. 43 L. Ed. 316. 1915; City Rep. 114; give in the S. W. 41 S. W. St. St. the ordinances are cited, line grant or First, since It would seem from the authorities Second. We think also from the by way plaintiffs Louis, prevention for the reason that 87 Tex. Ry., entitled to continuous, and, under the Co., to Rep. 724; Rep. 851; City S. W. contended Rep. consequence vel non to condition or them an wagonload Court of Missouri 40 Tex. annoyance with and be may properly and constitutional 174 S. The fact that in each of such municipal attacked; Injunctions 189; come the exercise of the ordinances the relief and from the 143 N. Y. appellants it cannot attack the constitution to 196 N. Y. Ry., might plead successfully benefits thereof at law. may protected must be remembered 130 Mo. 301; Sylvester inquire writ continuous, of suits constitutes effect Sumner v. of here is continuous. Dibrell v. of vexatious injunctiоn.” thereof. 171 U. be Cr. injunctive Austin v. attempted City cited Greene v. to be invalid of coal sold and delivered executed, Ordinances Nos. 44S courts utterly of of their continuance ordinances become But is prayed 28 S. W. R. and, second, as defense thereto does Booth v. into the error denied November from the the last-cited (3d .No. such support though of New York Man the cases of invalid, exercise consideration question Houston v. property rights Crawford. 91 Ed.) allegations in remedy. They uses the N. they have an ade- Young void.” City Musco v. United 32 W. relief on the facts Austin upon subject for in 50 S. taken out provisions there- enforcement of City litigation Coal E. plaintiffs’ busi- validity N. grounds, multiplicity it be conceded p. jurisdiction which remedy expense, of these city E, that the in- because of No. ordinances, compliance ‍‌‌‌‌​​‌​‌​‌‌‌​​‌‌​‌‌‌‌​​​​‌​​​‌​‌​‌​​‌‌‌​‌‌​‌​​‌‍in case it a favorite plaintiffs’ Cemetery following Coleman, to Ex the inva- ing them.” operated jurisdic have ac case Richter, says: San for such it is al- author 1 must Pierce and of of the the burdens as well as the at law parte supra, vexa- a li suits Tex. Dal Am. two An are ac- visions trial plaint Dunklin, ture cussion is violative of the ‘due lant, defends on the stitutional. for New York an order by which he visions of the Constitution. 8 142 N. preme statute brought these contentions cannot vail. thereby Suit was clause of the federal Constitution cannot stitutionality, come out. accepted for one Ferrara on a sections sons, firms, as well as under a statute.” first men’s as it remains under the law it waive a under the Constitution of the undertaking selling ceiving deposits of the statute. The ant court; speaking through supra, we are the law it and truck, the business plaintiffs’ out in and therefore we consideration which seem to “A “It In the ease of In In the case of Musco v. United But, Said defines said act virtue of an act of the New York his surety company appellants place, including in under the Commission Young It elected to take the former by electing Compensation the United or as it appellant, W. Court of Wisconsin held that act, full, argument inasmuch as the main contention of Ordinance in behalf of Ordinance No. 470 is probably precluded as set right also principal used case of Pierce v. Somerset overruling brought by plaintiff against appealed trackless motor vehicle the words “motor bus” as steamship petition. surety or omission to ^[*] may by finds well settled that a saying: which he appellant optional ^[*] and 5 of Ordinance No. urging ground accordance forth in the authorities cited. Ann. Cas. “any automobile, otherwise have under the corporations engaged be Mellen it”— ^[*] Compensation States to come following language: after such will "not predicated persons to the Court taking for a his acts surety, directly We are of the aforesaid, Wisconsin, a demurrer In section No. or railroad citing Act of that mention the questions presented of the act that said act is uncon- Colorado, supra, Lumber prevail; objecting person engaged passengers benefits, 1915B, 997, provision been accounted debarred unconstitutionality with the act, Associate Justice having who made says: under the Work- attempt or omission became a given involved undertaking number deposits which amended Cye. 791, upon process otherwise in this action must quite lengthy waive a Act or to to so declare act, appellant to the com- tickets, opinion executed and so engaged Surety Co., automobile to under and course. state, subd. they were, under dis- and from Wis. v. Indus- to meaning for hire take Ry. Appeals Legisla- its deposits defend- the Su- by per- of law’ surety appel- States to act set it in re- cases. 792.” said: right mak- have pro- long stay may “b,” pro- pre- Co., etc. for, to 1S2 S.W.—44 182 SOUTHWESTERN REPORTER such motor bus is ing thereon persons hibits of same be attached ing It license issued under the ing upon any ber showing curb brought mini motor tiff and hereinbefore set out. Said subdivi- into a bond conditioned as sion cient, or when such bond shall have been de- of the board of commissioners new bond censee whenever creased act is the tion that the as sureties ty ordinance refuse of such referred to may plication within the victed of the seating capacity, person street and further and issue as drugs, which is held out or to file tion, including operate to between designated territory, tory number, or writing, Section Subdivision Section requires, further, operate driver, thereon, fenders, run, run, a motor bus without the proof establishing any or further thereof, and, among of said for sufficient reasons motor along required bus such motor bus is to be bus, with intoxicating to be in the immediate license shall unloading in amount or which outside of over a of Worth both the destination device, application particular points, of Ft. streets displayed violating any whether such city is to near or a motor Et. motor which or between the horse bus is provides or to writing, giving requires requires any person street; prominently said motor bus. applicant provides license thereunder. “motor bus” street for the riding additional bond from “g” limits particular city secretary operate. or advertisement to the or county bus designate the board deemed insuffi- with passengers, except possible occupy any type liquors, commission, bus announced that intended penalties district on the that grant power thereof, the fac- order recovery the rules of name from excеpt upon operation, designated the termini between proposed body of the motor traffic ordinance license it shall individuals offered provisions displayed approved, driving street or route within such license enter designated pleaded rear city remaining or had sign or zone.” may require which the solvency, thereof charge thereof while to within thereon. The the limits operated, requirements is to of Et. route or ter- license num- which board of said bus. things, number, age be driver desiring any person right-hand sign, or Et. Worth be prohibits point, painting informa- provides operated of load- or sure- on and of each of this operat- operate thereof vides that each boards Worth, stand- car or motor limits the condi- plain- or viola- route place it be voice, filing' that uses run, or con- tute a any ap- li- or in this and have health, life and force ordinances which authority security summarily abate and all kinds said 4 of the with under section 18 the tax, and surveillance of drivers and owners and enforce the restrain or Under cycles, hicles of railways, public carriages, hacks, street fix sances vested in the commissioners to ter of said same to recommendation, the streets is charter, shall shall be lating sioners, cense if missioner of fire lights, downs, hour in the bus or dation, ger car between the front with the tion of fixes said motor bus and miles There are other city. ^[5] Under vehicles Sundays, otherwise, operator operated, number chapter to provisions of that in case of conviction of the owner general police powers We do consider and section shall be instance, chapter is vested in said bus automobiles, or separate offense, fares, is purposes etc., Et. Worth at and under punished by number of chapter 5, be first every kind; lodged vehicles and animals.” regulate the prohibits commissioners, together one and in case of fixes the exclusive conveyance, business be mentioned as tolls, prohibits enjoy general police powers per driving rapidly sundown given deem it of motor provide description, guilty chapter property, “speed good government, order, but sufficient must be city, of this the city sought waiting revoke regulate think because the ordinance hour and act such ordinance section of said kind; authority hours each the use any prospective section fine not driver, racing which motor speed section of proper. remove nuisances under section 13 of charges opinion. bo.ard, etc. and to operated, locomotives, trains, for another the commissioners misdemeanor, and under section the residence day’s “to enact and board 2 bus is to abate all nui- accidents, suspend the shall board, to be exceeding $200, has been sunup It further affecting regulate 12 miles of all inhabitants, prohibit prevent protect vehicles, shall consti- the fee for the charter conveyance. violation pass may of commis- fees, police recommen- limits and report the limits placed control of any exercised is By Chap- except the com- preserve in which bus chapter without passen- Worth, vested ride one noted break- street city’s and and and vio- sec- en- per ve- bi- at li- is y.

Tes.) CO. CITY ON FT. TRANSIT WORTH license fee $10, way, street Reichman, supra: said ordinance surety ganizations, business, which Tex. pact, men, emoluments, and other rents cars and none is Rep. 878; tempts other rent ears Cook, in passengers, stitution, busses or by Lodge streets its of an hicles along a ist a state or restriction sume that tween railway should sists of which ed to cabs may which had question, danger may crowded streets and without streets, street demnity against and indemnity of the tive in or from the ously throughout “All “The “Furthermore, a substantial distinction be- says: Nor “It As We can Railway Co., public our L. operation, own so is at least in operate, than while the license in Nolen v. and other rent make said may has been occupy susceptible belong 86 Tex. Ed. 751: railway property railway mentioned, freemen, bond in the sum is it ‘jitney.’ ordinary highway. It results purpose, character, presumption 81 S. W. 18: mind, Legislature on which the heaviest power fixed a fixed entitled operative services.” which reads as follows: which well equal rights, act Insurance property (cid:127)jitney” (cid:127) define аs legislation; and, of facts escape required readily parts do to different classes.” numerous may apply existed.” be caused a complained of, the courts will as- article limitation as track when sought those Benev. Ass’n fixed 153 U. privileges, * while that corporations according requires fact that said plant, Insurance Co. v. ordinances obnoxious is here resisted filled Reichman, to exclusive since attention. of the owner of a * thereof, which, only along 26 S. W. only $3, justifying the classification may classify persons, becoming dangerous consequences understand cars. of the owner it enacted equivalent for the bond ordinarily >* been 1, 3, engaging v.Co. place L. R. they either for the or for the always including rolling is in its nature an in- fee for § and terms day, different separate portion on steel rails. As is of regulate operated of when form a social 46 L. Ed. 922. As has been said or stand which Chowning, over which a supra: case of Nolen v. to the street or operative through and operation congested traffic, the latter is ease of The execution busses continu in the business in favor of the separate public tracks street there could ex- man, public by taxicabs run over the traffic further, of the surface rules to those by of Sup. consideration transporting Johnson, Mettler, 185 class former con- Campbell mentioned, 40 Am. of state Legislature negligence, statute in the owner when Marchant taxicabs a street railway Ct. to their of taxi greater requir ‘jitney’ exists, set of is no to the along stock, Con- rail- com- that ule; fugi- Tex. at- St. or- ve- of hicles; they yet vehicles public by and were at surface of the noted. any others by the or receive and often dren; less at a date ice would they the The service of the one is ice ‘jitney’ cially irresponsible; tion ing ably bers demands; eration of the rially ice.” boarding aat tained tracts, hibition tice a business, but the 448, It is stated in 8 be entered into between the cense is not of contracts.” with their L. Ed. discussed is inhibited permission .is a nance for the any law ways revocable.” main principle certainly stitution, licensee should elect vation tо the ordinance fee for the have tion a license fee under “There “As “The correlative In The along equity him. operators. drivers, might requirements distances and linos of travel and merely when and where to financial street, provisions of Ordinance No. 470 would persons traveling along dangerous rate had Doyle increased the power. Nor exceed those abrogation a license profession, as claimed persons in section 148, and the taxicab are varying prices. services license vehicles needed to meet the machines, as to the the curb between is not a contract which vests a driver owns the manner signify other is no impairing provides pedestrians do plea concerns composed men, women, the United States whether as v. protected another unexpired term will fare discharge it; leaving whom they stopped responsibility liberty fixed track A mere Imense street; unexpired term, or, ‘jitney’ presumably Insurance * * * we think that whose destinations involve rate of granted them under this ordi- grant vehicles, appellants, they perform materially authorizing Cyc. necessary consequence substantial difference in num- common to prohibits impairment rush intended or to because of the power effect, arising damage might does not bus, the distinction that should be the terms of danger of this well-established Ordinances street cars to discontinue the taxicab. to move over the entire dangers 938: by art. appellants in of a of their that speed, probably had passengers; through The two kinds of serv- carry in the hands of care- pedestrians prior designed those Co., to revoke machine, expect them; in the taxicab serv- physically privilege, at street to their street, they distinct routes and no of them are finan- inasmuch a constitutional all; work attending by of portion 94 operation; patrons enforcement of the accommoda- on a ordinance who have crowded streets the ordinance provision complied persons had no sched- enactment of Nos. 442 and U. negligence but the serv- crossings, be to accommo- would mаte- ,in appellants. state is al- connection or at least any depri- patrons While the state Con S. such a respective other ve- crossings, of know- refunded or while and chil- contract case the inflicted of con presum- without to rue. of said recall 535, opera- differ. same, right, using vary- prac- very that may con op- 24 li- 182 SOUTHWESTERN REPORTER G92 guaranty discrimination is of the same different quired pation 537; Hoefling v. tion of motor 85 Tex. in 100 Tex. v. 368, Ledwith, 625), though expressly without etc. charter authorizes their victed of a violation of a in ocation is not within the erning life,. or in due —as seems, may tion which rected ed or ordinance, if it deem where given municipality on a Constitution, “No citizen of this state shall be Nor do we ^[9] “No Stephens, This Nor [7] Nor violation of section allegation course liberty, in the second 7 L. R. plaintiffs showing is petition, person’s destroyed for, provides do officers tax contention, power any individuals art authorized section 6 we think that it is manner or in other burdens do authority to revoke Galveston, 100 Tex. is proper. privileges or property, (Ex parte Fla. A. 20 S. W. be difference which the law of the we think that 97 S. W. class be invoked & that that: board of Rep. presumed Son shown think there of the state place, compensation disfranchised, issue in provides, raised that to revoke most v. engaged the and it licensee 76 17, in their municipality (25 shall be South. applied Sullivan, suspend has been held it Tex. nature this constitutional powers (State art. charter, pertinently 16 is not of Jacksonville v. betVveen by appellants provision ordinance, land.” Texas the ordinance is license of San enforcement is contrary in is L. R. in 1, has virtue of the revocation, petition. to, public taken, only license except Constitution, placed upon part, anything v. such license shown ‍‌‌‌‌​​‌​‌​‌‌‌​​‌‌​‌‌‌‌​​​​‌​​​‌​‌​‌​​‌‌‌​‌‌​‌​​‌‍that of 178 S. immunities, deprived 9 L. R. Company 481). such Railway, members 13 the state an occu Antonio, (Newson when a that: of this damag- company opera made,” to sec- be there- is not is not S. W. 608); Oyc. gov- rev- herein are not up- use vehicles, re di- in of] A. of dulge is limited ion, sphere and tion if tions] under the same circumstances Class forced cial in their Ct. dangers, be liberty the the able to required ty lidity 28 L. not Hing It is 1915C, municipal der Mann, tions monopoly suggest such a result. istence of such section sult ordinance itself intent or “Though, they operate In showing, [10,11] said ordinance. duty commissioners expense terms and rights Field favoring Mr. Justice which, discussion, would be ordinance of Ft. Worth true that the Barbier legislative (7th do legislation, or unreasonableness of such ordinance. in general public may Ed. 973; 115 Va. bear, Crowley, of inquired speculation to abandon the reasonable Nor does the fact that the Ed.) of subjected L. in its conserving legislative body, at in probably we would not in 1145; art. character, Cooley Constitutional operation others, furnish Ed. the times, alike on -all in this but- necessitate the incurrence of in a the taxicabs and body 1, of motives on 113 does discriminating against individual that therefore into Case, application, provision Shenandoah in on the itself, under the to such is regulations, flow from the respects, necessarily spe- just ground position 80 S. E. 36 U. or surmise will be the favor of the cited respect is held the Constitution. says: it not disclose thеy prohibited, plaintiffs may In out in itself Cye. 113 U. safety demand.” enacting persons affects be authorized establish the inva the absence 703, Sup. part the courts. restraint, a in [statutory passengers in the or that such the creation pressure public in 753, Ann. 5 of its respect ordinance S. alike as the of the board Lime part violation nor does it within the but conditions. other rent enactment complaint any such to be en- members purpose, law all of Limita not es legisla- will regula- motive of safety opin- some great sure Soon with Sup. per- Cas. will un his car ex in re Tex.) CO. CITY TRANSIT OF FT. WORTH killed unreasonable criminatory car affirmed. tution. the for, tions must exercise that his as fore courts a in a sons exceed held that the ordinance should be regulated. rule is the the same driver’s driver statute, passed said ordinances ilarly charter vested ment.” Fourteenth ator the day been the to to recover reasonable tion the case Ellis, it ion, so far as we to make the negligently is no more taxicab, tions, upon classes provision Affirmed. plaintiff [13] Counsel for insistently urges discuss, well аs other forenoon than in the public courts “jitney,” continuance “jitneys” and the public, forenoon than from general police a suit drive a similarly situated, mentioned, vigorous the trial court than suit, the streets 165 U. S. grounds conditioned in may during passing upon well as in $10. duty this-respect, greater streets are the a than the On Motion for conclusion his car in act upon is no more chargeable whose involving motor-propelled He cites in upon railway in its requirement upon judgment private have been able the same feature “jitney” The Texas terms and question motion for imposed valid, urged, the board of April willfully and that we overlooked, discriminatory. diligence charter G., nature. Therefore we during another claim, appellants “jitney” Amendment, the —is powers company, days, car or driver opinions ground under which the several part did not err respect we desire operators but C. & establishing is not within or that individual who upon subject reference to the of said court attorney’s was authorized hire; obligations can support injunction same; Rehеaring. in our conditions, 1889, providing, held invalid “jitney” of a Supreme afternoon; injure any person the United States to duty should rehearing, and in only of a vehicles with which has filed cannot avoid it contains of all surety thinks determine, —i. F. that the same original of his conten $50 for “jitney” more persons justify injury day operate streets. Tbe fees, rent car it will part least It is duty be ordinances, in “jitney” Ry. afternoon; Court had his or restric greater car; e., say injury is hereinbe or is say entitled, had not denying renders careful, operate an able prayed hereby Consti- amend- not to L. not claim, Texas condi failed urged stock opin oper duty hold tend that of such that sim any dis Ed. . is more would bear a reasonable relation to the delin- while another is the other. manner individuals are thus quency no multitude of other might cessful —is a there must be some difference in the be classified for some a distinction can be made between one be justly require many things a statute peculiarly dangerous nature, linquencies porations. debtors. every treated as other ture, selves. And porations order to secure life and railroad is a tbe lic law nonproducing up between by showing lations of themselves from actions or upon for the facts “jitney” frequent, courts be will damage tors stant as when it ers that and more operators Therefore, ers, Case. such ally Supreme Court, “Considered as such We do In St. debtors, pay, inequality more using Sup. peculiar prohibition duty salé business in business was a case in which tbe in the exercise of its duty this be no debtor should likely city may require cited in tbe case and tbe suitor punished just classification, further If some reason imperative infrequently driving inflicted. article, inbe tracks, delinquent producing Ct. special important imposing * * * for a of care on discriminatory, on tbe crowded John submitted question be will avoid acts we feature, * * * in case The act in tbe exercise of principle certain subdivisions of said act business in which impropriety them left other motor punishes debtor, attorney’s that to occur than in the peculiarly are correct in streets, tbe case of one danger believe our failure to punishеs of the Fourteenth Amendment.” “jitney” guaranty vendors right classification for the for a failure to use of debtors, the duties—duties in position permitted 50 L. was in a New in the one instance than in tbe milk things easily suggest said in That such punished, of an singles reversing without than why tbe and would penalty upon pay be said to be herd purposes is, laid [as no then tbe fulfillment bolding fees. safety nonprodueing eases fails to protection. in them when for like de- Ed. dangerous York, part property. Fencing pay contended that such others. might than more a his to be done for the reason tbe and not one tbe vehicles down in accident, of tbe giving tbe bolding police powers, may court was part course, proper whole], out a certain class streets of equally penalties any punishment, and no other concluding duty corporations may. debts, respond a car over Such sold performance our is couplers, its “jitney” it does of oth- 201 U. S. certainly become engaged discrimination imminent and arising of tbe other pay tbe as follows: unquestioned. not They 5 Ann. railroad сor- producer, debtors, police pow- continuous. to tbe state mentioned, negligence, a But before debts. imposition and there operators condition tbe Ellis his occasion- certainly provision measure vendors for case of for tbe Legisla- engaged dealing exempt them in tbe in- offered are in is of a out of opera- simply of tbe create debts, them- pub- that Cas. that vio suc- like cor- No a REPORTER 182 SOUTHWESTERN attorneys agreed entry vendors, not privilege producing tlie tiff’s to the bad accorded —is demurrer. stating Gourt, Supreme after States Judgment, cases, [Ed. Note.—For other see purpose secure was to of the law Dig. Dig. 882-891; Cent. 460.] §§ Dec. <S=> containing population milk strength, purity dis standard Principal Agent <§=^178 2. —Authoe- impure, unclean, ity unwhole milk Agent close other —Notice. plaintiff’s selling agent, Where before sell- some, etc., continued: ing goods firm, ato member was told that one purpose not “It is not contended that such goods had left bought by the firm were that state, contended within that the stand but himself, the the other for member who alike is not on all exercised plaintiff member, although retiring not could from the recover purpose, and same relation to the agent in fact did quite dis- to show dramatic used illustrations are credit, had orders extend produc- picture A crimination. is exhibited office, to be O. K.’d at a it was central since selling ing by side; nonproducing milk side vendors' duty report principal his the dissolu- his latter, may purchaser be, it firm, principal tion of a debtor was and the former; permitted; the act act the of the other of one charged with notice of all matters which prohibited penalized. If we agent ought to have communicated. act of sell- could look no farther than the mere ing, Principal [Ed. Note.—For other injustice might demon- the law Agent, Dig. 680-684; <§=> something strated, must be considered. more 17S.] the final the law must be Not considered, but the administration— means of its Appeál County Court; Hidalgo ways Legislation, to be it be defeated. Judge. Gossage, H. efficient, regard special practical and must Supply the San Antonio & purpose, purpose.” Suit Machine as as' well thе ultimate Company against From a Marvin Evans. language We feel that judgment appeals. plaintiff, defendant Court, quoted, answer above is sufficient and remanded. Reversed appellants’ contention. Kibbe, Perkins, Brownsville, though & might Polk be well to state appellant. Mission, Strickland, legislation origin, yet Brown “jitney” & is of recent appellee. question ordinances to the one under consideration has similar CARL, by appellee J. This is suit to set resort, the courts last both of of- reached judgment a certain aside No. in cause rendered jurisdiction, criminal and of civil county Hidalgo 389 in court coun- case, states, and, far as we have the found from ty, appellee plaintiff wherein was examination, our has the court Supply Company, & firm Pharr Auto com- invalidity. contention of sustained the posed Evans, E. C. Ruth and Marvin were our cases cited in In addition to the defendants, judgment and for on the merits original opinion we of Mem cite against the cause in said suit stated (Tenn.) phis S. W. State Ex partnership and the members thereof. Sub- parte Bogle, Texas grounds stantially sought which it was Appeals, Novem decided published; Court of Criminal judgment to set the aside were these: officially yet ber of New decided hearing pleadings That after evi- Blanc, Orleans 70 South. v. Le dence, having the cause been tried before the Louisiana judge, the court that he stated would cases ordi 1915. In these November judgment plaintiff render ceived a until he re- provi or more onerous with similar nances transcript from the evidence upheld. sions have stenographer fully examined several opinion original Believing we our for; items sued and thereafter on three sev- disposed correctly ed, the issues involv- days attorney appellee inquired eral rehearing motion for is overruled. judge taken, as to action he what judgment the court stated that final testimony would rendered soon and the correct was received amount of the & SAN MACHINE EVANS ANTONIO Thereupon appel- was ascertained. account lee’s 5550.) (No. SUPPLY CO. attorney prepared judgment favor Appeals (Court An- Civil of Texas. ‍‌‌‌‌​​‌​‌​‌‌‌​​‌‌​‌‌‌‌​​​​‌​​​‌​‌​‌​​‌‌‌​‌‌​‌​​‌‍San against plaintiff and the of members for Rehearing 1916. Denied tonio. Jan. $794.26, placed among 1916.) Feb. papers No. and noti- case cause Judg- Judgment <®=»46(L-Setting Aside same; thereupon the court fied Pleading—Sufficiency. ment — open judge court announced judgment, alleging petition A to set aside transcript rendered action in which as he received the of the evi- soon dence and entry judgment successful; plaintiff was correct, found same would transcript awaiting postponed of the ev- entered, the same to if the cause account; plaintiff’s to ascertain the idence correct, were he would make proper judgment attorneys prepared amounts the and left files; regard called to at- it with tend correction thereto place; another defend- same; appellee’s attorneys enter attorneys procured signature en- ant’s try compelled a trial in San An- to attend judgment, omitting principal de- judge remain, representing plain- judge could tonio fendant Digests Key-Numbered and Indexes in all For other cases see same and KEY-NUMBER tion, etс. fully under the older complain. form the limits flict under) seem that of Ordinance the same “All For, But

Notes

[8] 23 Am. contended Nor do we think occupation section of . withdrawal terms provision as article the same class of provides that: St. first No. 470. Plaintiffs had 8 Ordinance Oyc. p. 626, 8, 2, taxes shall ordinance; place, authority levying § of license as they applied that it now a ordinance is the state subd. “c.” with No. 448 hence can be subjects equal notes position for license that the fee Constitu contains success revoca- accept- within tax,” would Justice there con uni- 6 of Fed. tend Cases, tiffs will suffer a Ct. says: tablish the the ordinance. settled rule of this court is that the mere fact of throw of “In pecuniary the enforcement of often works cited in truth Brewer establish Jacobson legislation 78 C. C. unreasonableness L. well-ordered injury is that Ed. Grainger Nor pecuniary Case, the N. Y. & N. E. R. Co. does pecuniary injury, the exercise does invalid. truth not warrant society charged Mr. Justice the fact that of the contention Jockey Club, Ann. injury ordinance even As character.” invalidity does Cas. 997: said Mr. the over- Harlan reason plain police

Case Details

Case Name: Auto Transit Co. v. City of Ft. Worth

Court Name: Court of Appeals of Texas

Date Published: Nov 20, 1915

Citation: 182 S.W. 685

Docket Number: No. 8304. [fn*]

Court Abbreviation: Tex. App.