200 S.W. 404 | Tex. Crim. App. | 1918
The city of San Antonio is incorporated under a special Act of the Legislature, subsequently amended under the provisions of the Act of the Thirty-third Legislature, page 307, known as the Enabling Act, touching the so-called home rule amendment to the Constitution, which Act is chapter 17, title 22, Vernon's Sayles' Civil Statutes. The charter contains numerous provisions giving broad powers touching police regulations, and in section 99 specific authority is given to "regulate, inspect and license all occupations when necessary or proper for the good order, public health, public safety or general regulation of the city, and charge license and inspection fees therefor, and such fees shall not be construed as occupation taxes."
The Act of the Thirty-third Legislature, supra, under which the charter was amended, also contains provisions defining the power of cities acting thereunder, among which provisions is the following: "To license, operate and control the operation of all character of vehicles used on public streets, including motorcycles, automobiles and like vehicles." "To regulate, license and fix the charges of fares made by *528 any person owning, operating or controlling any vehicle of any character used for the purpose of carrying passengers for hire."
On the 27th of August, 1917, the city of San Antonio passed an ordinance requiring all persons desiring license to operate automobiles for hire, to make written application therefor, pay a license fee, and furnish bond or indemnity insurance in the total sum of ten thousand dollars against injuries to persons or property through the negligent operation of such automobiles by the licensee or his employe.
Relator is held under a complaint charging a violation of the provisions of this ordinance, and there is filed in the case a written admission by the relator stating, in substance, that he was engaged in operating an automobile for hire upon the public streets of San Antonio without complying with the requirements of the ordinance, and further stipulating that unless the ordinance is void his restraint was legal. He seeks his discharge upon original application for writ of habeas corpus to this court, making various contentions as to the invalidity of the ordinance, which specifications are too numerous to discuss in detail, but which, in the main, assert that the ordinance is an unauthorized and unreasonable police regulation. Aside from the want of authority to pass the ordinance, he complains that the title and preamble of the ordinance are not in accord with article 3, section 36, of the Constitution, and that it is violative of that article in its reference to another ordinance. This contention is based on the incorrect assumption that the article of the Constitution mentioned controls the enactment of ordinances. Morris v. State,
Numerous instances of the exercise of this power upon various kinds *529
of vehicles are to be found in the reports. As to its operation upon stages, see 28 Cyc., 765; omnibuses, 28 Cyc., 731 and 910; vehicles carrying advertisements, Fifth Ave. Coach Co. v. New York,
It appears that the ordinances of San Antonio have regulations similar to those contained in the ordinance in question with reference to all automobiles operated for hire, jitneys operating confined to particular routes in one ordinance, and service cars confined to no particular route in another. There is nothing pointed out which indicates an improper classification. Ruling Case Law, vol. 6, p. 397, and notes under secs. 393 and 395. The requirement that persons operating motor vehicles upon the street for hire furnish security to idemnify persons suffering injury by reason of the misuse of the license to use the streets through his negligent conduct of his business, has been approved in a number of instances. Ex parte Cardinal, 150 Pac. Rep., 348; L.R.A., 1915B, p. 850, and cases cited in note; Memphis v. State, L.R.A., 1916B, p. 1151, and cases cited in opinion and note; Willis v. City of Fort Smith, 182 S.W. Rep., 275; Le Blanc v. New Orleans, 70 So. Rep., 212; Dickey v. Davis, L.R.A., 1915F, p. 840, wherein the following authorities are quoted:
"A distinction must be made between the general use, which all the public are permitted to make of the streets for ordinary purposes, and the special and peculiar use, which is made by classes of persons in the pursuit of their occupation or business, such as hackmen, drivers of express wagons, omnibuses, etc." Tiedeman, Mun. Corp., sec. 299.
"The rule must be considered settled that no person can acquire a right to make a special or exceptional use of a public highway, not common to all the citizens of the State, except by grant from the sovereign power." Jersey City Gas Co. v. Dwight,
"`The Fourteenth Amendment of the Constitution of the United States does not destroy the power of the States to enact police regulations as to the subjects within their control, . . . and does not *530
have the effect of creating a particular and personal right in the citizen to use public property in defiance of the Constitution and laws of the State.' Davis v. Massachusetts,
The suggestion that the ordinance is void by reason of the authority therein given to revoke the license might be met with the view that relator, not complaining of the revocation of the license, is not in position to raise the question. Kissinger v. Hay, 113 S.W. Rep., 1008. Granting that we are called upon to pass upon the point, we think it is not well taken. Fischer v. St. Louis,
The city of San Antonio having authority to pass reasonable regulations governing automobiles operated upon its streets for hire, we would not be authorized to declare its provisions unreasoable unless it clearly appeared that they were so. Ex parte Vance, 42 Tex.Crim. Rep.; Ex parte Battis,
The application for writ of habeas corpus is dismissed.
Dismissed.