Greene v. City of San Antonio

SOUTHWESTERN REPORTER exception pear that Municipal Corporations <&wkey;661 was taken before 3. oe—Use Regulations. objections. ruling Streets — the court city having A control over exclusive Rooking at manner the matter as may prohibit its streets actually contained, in what reconcile privilege business on objections tran- with what 'could have to conduct a business thereon. Municipal spired special cases, trial, [Ed. all Note.—Por we assume that other see Corporations, Dig. 1434-1436; §§ Cent. general charge charges court’s Dig. &wkey;>661.] Dec. compliance presented to counsel with Municipal Corporations <&wkey;703 op 4. objections rules, and before the were —Use Regulations—Validity — Streets — “Car- prepared informed counsel not the court op Passengers.” rier appel- reference to what would be done with conducting jitney One business streets ap- objections main lant’s pellees’ ais carrier of for having adopt for exclusive conti-ol over its streets requested charges, but what regulations reasonable a bond appellant’s requested with also done protection of citizens. charge, whereupon intended to be what was Municipal cases, [Ed. Note.—Por other see exceptions pre- objections were combined 1509-1513; Corporations, Dig. Cent. Dec. §§ &wkey;>703. Dig. pared. a in measure inferential- The record definitions, Phrases, charges view, Por ly complained other all see Words since sustains such Series, First and Carrier Passen- Second the same time refused at were gers.] objections is a serious were filed. There the question Leg- e&wkey;208 5. Constitutional however, Law minds, whether —Class in our op Streets. islation-Use compliance a substantial these facts show with the applies ordinance, per- A to all law, the verification since using sons streets is, stated, transportation, did is not court wholly vehicle in local street invalid as class legislation. deducible inferential and cases, [Ed. Note.—Por other see Constitution- judge, rests indorsement &wkey;j Law, Dig 649-677; Dig-. al §§ Cent. Dec. objections. We contained what have, signments 20S.] however, as- the several considered — Municipal Corporations <&wkey;680, 6. reached error and op Use Streets —“Franchise.” thereby nothing is shown clusion that can case, A authorized its charter disposition original change our for for the use of franchises- its streets purposes, may grant opera- largely upon was, based, fact a franchise for the jitneys transportation, tion local adversely jury found belonging a “franchise” arbitrators award both the right, to an individual conferred up- independently thereof, sovereign government on, cause action pre- corporations. favorably in, fairly, fully, charges individuals or vested cases, Municipal Having other see Note.—For [Ed. reach- senting appellant’s defenses. 1459-1466; Corporations, Dig. Dec. §§ Cent. a discussion feel that we conclusion ed that &wkey;?680, Dig. 681. assignments un- seriatim of the several definitions, Phrases, For other see Words necessary. Series, Franchise.] First and Second rehearing overruled. The motion Municipal Corporations <&wkey;703Regu- 7. — Authority. op lation Business —Charter cityA its charter regulate carried on in trades operation power et al. ANTONIO GREENE OF SAN v. CITY using jitneys, local street trans- 5545.) (No. operators portation, for the bond protection citizens. (Court of Texas. San of Civil cases, Municipal see other [Ed. Note.—For 1915. On Motion tonio. June 1509-1513; Corporations, Dig. 1915.) Dec. §§ Cent. Rehearing, June &wkey;703.] Dig. Municipal <&wkey;661 Corporations 1. —-Streets —Regulations. Rehearing. On Motion for para- cities &wkey;>303 Law Pro- —Due 8. Constitutional Legislature, which mount control of the Ordinances—Validity. op Law — cess them, exclusive control over on the cities confer opera- An ordinance city may impose done, rea- and sonable that is when transporta- using jitneys for local tion use the streets. operators give requiring a bond tion and cases, Municipal other see [Ed. Note.—Por deny citizens, due does not Dig. Corporations, Dec. 143íH436; §§ Cent. process because of law Dig. <®=^661.] the ordi- infractions for certain forfeiture nance. Municipal Corporations <&wkey;661 2. —Streets cases, see Constitution- [Ed. Note.—For —Regulations. <&wkey;> Dig. 863-866; Dig. Dec. Law, §§ Cent. al regulation by Legislature, A to which -303.] city been exclusive control streets has conferred, must, the use Jitney op <&wkey;6 Streets — —Use Licenses valid, as measured be reasonable the neces- Business. sity pub- occasion and the having of its control exclusive A lic. use, for their may prohibit Municipal trades and [Ed. Note.—Por other and to license Corporations, 1434-1436; the as use of operating &wkey;3661.] a common carrier of <^j]Tor oases see Indexes áame Tes.) GREENE CITY OE SAN ANTONIO granted created, paramount lature, applying trol over granted then to be local street temporary general tion, order March porarily vehicles it is ascertained ordinance ears, had been torneys G. disclose Robt. G. San San Licenses 11. gers, First to license franchises for the use of streets for a way. cense cupation taxes, use Corporations, Dig. pose, public, fined to and Cent. tion that it must be made in the interest of the San Antonio S. G. and passengers, may give permission ^[1] For other FLY, [Ed. Note.—For Bosshardt Wicks and W. C. “Occupation Franchises —Power [Ed. Note.—For other [Ed. Note.—Eor other Appeal Action Brown, dismissal, police. agreement of the Municipal of streets for Antonio, Under a A compel corporations granted <S=^680, Antonio, is not an covers jitneys, Dig. 1; Dec. Tayloe, Judge. Dig. 27, 1915, and all C. J. The amended demurrer refers using and in this power” restrain the enforcement the names Harris, by Second from District reference highways cited and appeared state trades continued which shall not be construed dissolved. cities and mayor, restraining §§ special charter, definitions, transportation. must it to the & R. 681.] plaintiff appeals. cause <&wkey;l Regulation and others. 5, 6, Cent. the streets of motor to them as defendants primary payment P. Greene authority a license powers Tax.” over the Corporations franchise suit was instituted to tem- Series, Occupation that it is appellant. and on jitneys and R. J. depend upon was municipalities. charters or was authorizing over appellees. aof instance “exclusive con in force until June — parties business, and omnibuses, towns, see Words sustained to the order was entered on municipalities Fred to Grant. Court, dismissed, of cities and towns control of cases, streets, alleys, state, including tax. conferred fee, imposed cases, operation §§ May <5&wkey;l. authorizing designated right From a general signed carriers of highways Antonio, McMillan, San Antonio for Lancaster, It seems that petition defendants, Dig. 1459-1466; Dec. Geo. R. the are under the Bexar Church, <&wkey;680, see Affirmed. to individuals see oe to the limita- of a certain restraining <&wkey;6.] and other granting but under Whatever answered, sire, publicpur- Tax. demurrer fee. Streets— judgment Municipal Licenses, Licenses, County; Gillette, Phrases, fails to Clinton the at- it has passen- ject Legis street all of all of as oc- chief laws side peti- 681— who 9th, li- of ing principle if it were not could be rendered ing rights, comfort, cially of which to use advocating es ed state or private business, pose may herent business to use held valid. Dill. vehicles and him danger ing to to lated. The individual to cross a street whenever he including limited, have wide prevented mitted on certain primary design of vehicles passage Legislature, main at certain stands. streets quired be closed gress rights, ed have been not a trust for the by by over them are derived from the streets do not walks, convey another, in the use of streets. discrimination is powers charter or statute. their wares only streets is for the exclusive control over the crossing This is in a persons may crossing majority, good. streets for the rights they may may and or when funeral or other form of civilized passing. and hacks having heavy should general within purposes. is deleterious and himself or government granted obey proper to all business tires, egress, has also and even that over many regulations public grounds be regulated, or those to whom it has absolute to use a street or prohibited municipality may prevent Not impose removed, abutting owner, at belong required, special rights given abutting self-evident always abutting owners, the bounds natural public, all, so, be and his use for that Mun. Cor. circumstances laws impassable No individual has having any place except" corners, to the nearly the streets of a laying be controlled or soliciting patronage. may shown, happiness of directions situated, No weight as when there sidewalks and streets reasonable terms and founded charter loads purpose use and benefit. The usually obstructions They and travelers licenses to use the rights, man has the be have the prosecutio resembling private to use them. Sub right may society, the absolute out and construct These are deem best kept or be traffic, within its bounds regulated the state., "The proposition, for, compelled of loads may harmful rights individual, are affected that have from one but all granted owners. Hav reason, has the 1163-1167. of travel and highway the exercise is the may prevent may those vend required processions not be or town in may view right as to in or class Antonio, the will regulat may may delegat n may as the for the major powers of his so de where police, it, to re be re espe place regu pur may per him but in be be by

<grs>For see same cases in all Indexes n SOUTHWESTERN REPORTER privilege, on established conduct lant franchise. ment of contend that the chise— cumstances, for cense from could, not be them for depend upon a right, matter, other, not be Whether rights more The to ness not and long cities rights form in tions.” tion ness will necessity but is upon, the enact measured chise, ity, majority, those be must nity, “to as ment, away. the forts of certain majority, complex [4] It is not contended infringed some be a some in substance. crowded would have the notes. purpose, among others, on a must be validity and to It has and enforce rights or a inevitably right, that can of the conferred with changed by calling natural on the particular desirous of government points hire from anything be measured rights license, civilized life points for surrender the affairs natural character appellant aor individual or riding vested the distinction is power, a business The author cited defines to solicit price perfect propriety be necessary been held time but individual, must, city city, except the necessities enjoy wishes, reasonable, clash is clothed license. The rights. be more its in his society, rights in, disturbed such privilege paid which he cannot exercise therefor. No one would one lawfully Dill. Mun. streets were riding way public does, ever that such business can a sovereign lawful passengers and without the with the by public whose character will part Antonio, laws and regulations denominated in each in the without is the privilege restrained or take privileges of individuals rights the to the automobile desires, The fewer public but conceived men with which certain good. regulation, every any one without existence must must surrender his automobile prevent appel a its rights rural commu Corp. rights surrender ideal powerless rights good. become, the occasion franchise, leave or government. privilege, but he has certain cir community. builded for does reasonable regulations ing would again government citizen wishes name The named a and com rights, in that the by man, a on or even corpora- a fran natural natural govern a fran highest regula convey to an- given grant right, more more must busi pay any not for who be- li be able, .. nn en, trol of the for the nized in the en, one to the fore son, limbs of citizens. guaranty have been agency upon such gave the it the ditions be such a bond is but, and be streets, requiring advantage, not gers ed citizens, would inure sustain the 652, city ing restrictions. so. for essary except use the streets and loose children, tions for use tion curbs, If such vehicles are to the the in his not must ted, cars regular of If ordinance to be found? It is But required the. granted. By by implication, them for a sum of customers, “jitney” peddler the owner and where is the unreasonableness of the 168 S. on the other who recent for hire might have rushing along the exclusive control but could be reasonable. Bet on the streets unrestrained require petition performance peanut vendor, authority to traffic on the streets. contended that Austin lives and no valid reason can itself route and and it would not criminal, them to serve a is contended the private prescribed. desired streets, there was placed W. 61. soliciting passengers the mind date to obtain a license before he can San stand case of business, contention, driver case of bodies city to use Every service recognized. a bond- could be of a ear as the benefit Antonio, that there required protection streets the true, quite hand, is not a business. of third If any use streets were of certain conditions Taylor Dunn, should not be scores politic require owner of regulated regular roads, authorities Nelson Co. their money but if reason would reasonable The drivers but streets, stopping city who carries require offer to obtain pop not held that When city are permitted v. of fruit men, of third parties business? necessarily gave reasonable con- they to different a necessarily giv- giving schedule, Can require no reason country is of rule be an exclusive con- corn but few has the in his use lucrative attained would given protection not authoriz- to turn them be unreason are cited why women, v. constructed regulation? automobile allegations dangerous fail to it be regulation condition. bond that lives and regulated seller, a Stephen- of some prosecu- vendors parties, convey- passen require license on should should admit recog- bonds jitney cases keep 'It they Tex. why seek said por- best nec- one. giv- any any not be- do of to a Tex.) y. OE GREENE CITT SAN ANTONIO holding said: public was valid. The hackman in that case had his appellees Civil dinance, which & ter of the ordinance. condemn lowing any sale of walk or street even where 86 N. Y. the ises; Civ. L.9 it 189 N. Y. Louis, N. E. 651. municipality, unless there, which have 824, ing carrying ingale, Petitioner, ulation, sponding v. Clean Street streets. The purpose trade or withhold Maine case license: ness in the street cars those other for five cents a v. rying people Commonwealth its structed, uals taken eminent purposes structed.” provision, Fifth avenue the use of the streets the regulation by carrying ceive when “The ordinance in “The ordinance is In In To was held that the Atl. prevent wise public products contrary, 21 R. A. purpose use these streets R. App. 256, the case the case trade, prevent nor the same reasonably construed, subjects Street 161 Mo. street of the forfeited for. L. A. of New domain, an ordinance which different from the country produce upon drive for which on trade conducting case Supp. 445, benefit to the streets. does it therefor, by travel, * * * or interfere with (N. S.) 455, unreasonableness in 208, of State purchase, sell, horse or vehicle to stand in arisen in connection public streets of the occupation, referred to of this ordinance from one on trade Commission, it seems decisions regard had the awas Wade v. of of the Third through 371, Co., 46 W. prohibited effect are the cases of York, when (N. v. 82 N. E. carrying Van Norder v. expressly or business private Streets are question 11 directly applicable S. and we are unable to Ellis, 61 S. W. 225 S.) not inconsistent Fifth it was held for the to run coaches on the violating not that franchise, and, streets and village person. necessary, the exercise Pick. 194 Barbelais, to us 116 744, in an Ill. of such service is running or business of or otherwise deal in on of 157 Mass. a street without Hatfield Avenue ordinance N. Y. hackmen 90 the to run Nunnelly, Am. St. 172, does not undertake regulation of authorized 470, private 16 Ann. Cas. (Mass.) 168, to be a District, is some corre erating 658, their own therein. located and con- App. towas business in the prohibited object As the Court of trade or busi- for the ways 80 N. State v. with decisions 19, 101 Me. Sewer, that an city. Upon said in coaches provisions * * * of individ- Coach soliciting, purpose Div. ordinance, Rep. 156, stages from, prohibit 86 N. E. of which further, salutary preserve 555, 33 are con- Straus, E. People to this * * * in Night to an use toor public public tee, prem- Wa 555, 298, any 695, car reg carrying per- up- Co. or St. al on or of of .appellees alone, more Cook, Rep. 878; has a use of the lation, the trustee and a automobiles to ter streets to attack on the city would not be authorized to license his them the street surface. There tions them is that in which nance tation.” The rule is that sums, any chise to who have a vested terest who uses the streets “for the made islation involved way, 100 Tex. belong cution of a business without move ble, of San Antonio. carrier of gaged in the same business. Receiver v. tonio to dition for order to enter into vested and to obtain these comply ness wasting building up passage, destroy rights.” pellees the ing and the convenience public places doubtless, merly enjoyed by appellees upon [5] There is no discrimination or class So in this deny S. W. passage, proper, vehicle uniform entirely reason for on can 86 Tex. swiftly along service of requiring when it affects (have, have no with the passage them or deteriorate products upon that which was run cars given. apply as dealers in such from will, infringed Ins. Co. v. were alleys, placed by private automobile travel. The to use such causing which the engaged case to some no difference in general public. within the in on franchises for 24 L. R. products at interfere with the 630, point vested their in the business of a common carry passengers transporting conducting ground duly There could be no conditions The and other compliance in places “any person on persons along 26 S. W. individual or 97 S. W. 71. resulting exercising great privileges operation, or' invaded to be business in local street the extent promulgated premises. Chowning, the ordinance. steel rails the streets and in other expenditure A. equally every permission to use the things territory streets, point, of so 504; primarily city engaged. city products. delivering operated of their fixed 486, therefrom to the large, passengers, with the law is engaged the consent of purpose being least, never had make marts of purposes the same con- doing for in and not State v. whomsoever” privilege, wearing It are reasona 86 Tex. and to run corporation obstructing 40 Am. St. places; class referred prime be done in of exhibit- for hire. transpor may, the ordi of purposes intended 'will, by its char He must he must its trus of those is not to thereon one en them to But greater streets, the in so use in prose condi largje legis It fran Rail busi open than con leg and for- op ap- to, in 178 SOUTHWESTERN REPORTER Supreme transporting cisión state trol over Court of the automobiles Washington, pay supervising and which was held: than controlling question things on “Now move act two vehicles that can does importance It legislative functions, (1) viz.: greater incon metal rails. In fact there recognizes carrier; sort more venience to traffic (2) system regulation enacts of such danger auto accidents from numbers common earners. It is true that does passenger ears, along speed' limit dashing high the nor the nor mobiles rate permitted given streets, number to be quest con in cars the hot nickels capacity the routes, car, nor nor rules or fined to certain well-defined tracks. dinance does not does; however, regulate It road. them requiring permits desire indicate extent of them to obtain secretary destroy fur- city government and to operate, state surety specified nish a bond in a amount to unnecessarily hamper of trans new mode approval conditions licensing officer, specified exercising portation, regulation provides carrier therein civil actions experience dem bond for to recover any injury negligence un- occasioned applied onstrated must be or Appellant’s lawful act of such carrier.” State v. Howell general public. corporation serving (Wash.) 147 Pac. 1159. of a common is that regard language That held liability carrier, un any per- Legislature, providing that act of the obligations der the same desiring son, firm, Babbitt, Motor Ve other common carrier. carrying transporting in the business of hicles, Van v. Columbia Hoeffen propelled passengers for hire motor App. 591, Co., Mo. Taxicab 694. along any public road, over and vehicle class, highway, the first Antonio [7] Not give a and an should obtain license indemni- given streets, but it its exclusive control of Washington ty bond. The court held the act given power— is the saying: constitutional license, regulate inspect trades, pro- “to and all regulation “The reasonable of common car- fessions, occupations, callings car- and business by legislation always recognized riers has city, ried on in said whenever and wherever the proper police power aas exercise of the touch- [now shall deem such commissioners] council ing citation safety public. the and of welfare the No necessary regulation, inspection proper or license necessary deemed to of authorities is health, public good order, public sustain the above in these terms. statement safety general city, police or said of Whatever, therefore, may be the effec- therefor, and and tion taxes.” license fees tiveness of this law as to such com- occupa- construed as such shall certainly carriers, said with con- mon regulation. attempt viction it is an at such limiting charter, instance, may which was of That of the For have the effect section by upon the streets the number of such carriers passed charter, has in the aldermanic upon them; put the restraints char- commission into the the same number by safety passengers carried duce to vehicles and others of such every provision authority ter, by full is re- events, placed them. At straints in ordinance. certainly body blance bears all the act sem- an automobile owner of The police power, attempted of exercise of an Antonio-, operate pays it in San license to provisions excepted coming of within the of go, man- he shall which to the Constitution.” amendment the seventh place his car at the shall he ner in which given Antonio is exclusive of San. stay curbs, cer- to in is allowed time he streets, and if the control places, which tain street on the side pro power a bond for to has operate machine, in his the manner shall negligence citizen tection cor- horn turn he shall sound his along the munic carriers of common plac- ners, restrictions are and various other powers ipality have been dele whom to corporation upon him, and the man ed authority. “The gated same have the complain ground no that his to can by possessed attach as power the state to carrier on the streets of common grant to the franchise to condition reasonably regulated. no doubt corporation performance quasi legality, propriety, and reasonableness public may be exer duties beneficial cised ordinance. by delegated under a judgment affirmed. to the use to Corp. Mun. its streets.” Dill. Rehearing. On Motion for [8, 9] The state has assumed exercised by right daily to forfeit a San Antonio titles lands news- Reference pen upon by paper prius the stroke of commissioner, of the land decision some nisi some Memphis, Term., has cited an enforced court in thority au- liquor licenses to forfeit effect that the state a munici- comptroller, pality held these acts are to be cannot its cit- bond damages of law. How then can done due course izens from incurred at the-hands of recog- 9 of the claimed section ordinance á carrier. cannot be This by any appellate authority. for a forfeiture in case of court cer nized decision, made, of the ordinance be in fact infráctions held to if it was tain court, of the-fourteenth in contravention trial is in Tennessee face de- 11: y. Tex.) HOEFS SHORT of San Antonio not* contention that the empowered Constitution other amendment Supreme a franchise unless at the of Texas Court States? United grants way, or, in time it forfeited has held that a title to land words, comptroller writing cannot “Land for other a franchise the words granted railway company. papers to a his office. feited” city, Co., Brightman 63 section 101 charter v. Comanche Robison, provided: Tex. Antonio it is Hoefer v. 135 S. 371. Can it be that “Franchises the use of the streets W. public places granted for hire an automobile commissioners, no of four affirmative vote franchise or public tonio is more sacred than the ily of a fam for the use homestead? Has the places owner or other strictly pub- granted day but a he shall ever be in court when automobile not had is any grant purpose, of a franchise lic given appear notice to before the coun privilege the made hereafter charges cil to answer violation of public places within or other license, given conditions of city, the case nature of from the said where colorably private, or use thereof would to introduce witnesses and be heard purposes, chiefly shall his defense? There is no merit in the conten absolutely void.” If man tion. is whose forfeited provision That broad ways dissatisfied, there are which he can enough granted by the to cover franchise carry the matter into the courts the state. being limitation that must be Appellant authority whatever That made in the interest of sec- to conduct his the streets of San giving is the one tion city and, permission Antonio in order to obtain privileges, franchises or so, comply pre do with the conditions is not confined municipality. Appellant scribed de corpora- purposes sired use the granted designated right tions way. gain, has the absolute speak Sections pri the use of the streets for his way connection with extentions gave permission vate case it existing charters. compel pay for such use had the [11] The contention of as to ment á license fee. tax was antic license fee ipated protesting While the ordinance was fully disposed Legisla passed regulate, destroy, but to section, city charter, 99 of ture transportation cheap for the benefit of charge given to which and appellant interests,” sight “intrenched loses fees, and “such up occupa- of the fact that when he.took occupation not be construed as shall tion common carrier he became taxes.” governing carriers, to the rules is overruled. motion cannot contend that the same applied applied should be to him that riding private carriage the individual in his wagon (No. or automobile on 501.) the street. There al. v. HOEFS et SHORT. nothing is justifying in the ordinance or in the (Court record Civil El Texas. Paso. the wholesale 1915.) 17, the ordi- June passed nance was in the interest <&wkey;121 aiíd Water 1. Waters Ooubses —Ri- parian Rights corporation, destroy and was intended to —Surface Waters — Statu- tory Provisions. rather the motor car services Sayles’ 1914, Under Vernon’s Ann. Civ. St. on the streets. 4991-5011s, providing unappro- arts. Hoefling the case of San An priated waters of stream and storm or rain every stream, ravine, depression, tonio, S. waters 20 W. 16 L. A.R. be the watershed shall and the business taxed was one that acquired may' by appropriation, owners engage in, had the at the through waters, having which rain of land source rights their place prosecute it, desired to lands, flow, riparian no waters, but the waters become in this seeks in a busi appropriator. property of the first ness engage in, streets which he Note—For [Ed. Waters pro absolutely and which could be Courses, § Water city. occupation hibited mon carrier on of a com &wkey;121.] streets of a is not <&wkey;126 2.’ and Water Courses Waters —Sur- grocer druggist like that of Appropriation—Statutory that face Waters — pleasure Provisions. April 19,1913 (Acts Leg. Act 33rd c. necessary means, one with the and the occu Sayles’ [Vernon’s Ann. Civ. art. St. pation tax for could not exceed one- 4996]), provides every person who shall state, “jitney” half levied have constructed file a acres of land that dam or other work shall showing statement verified number one that cannot be exercised irrigated, point will be authority and under the condi headgaté situated, carrying ca- which pacity prescribed by city. tions map ditch, showing the. strength is no [10] There An individual and force in the of the ditch. a com- route oases see <§=^Forother in all and Indexes

Case Details

Case Name: Greene v. City of San Antonio

Court Name: Court of Appeals of Texas

Date Published: Jun 9, 1915

Citation: 178 S.W. 6

Docket Number: No. 5545.

Court Abbreviation: Tex. App.