Ex Parte Schutte , 118 Tex. Crim. 182 ( 1930 )

Relator relies upon the decision of the Supreme Court in the case of the City of Arlington v. Lillard, 116 Texas Rep., 446. The city of Arlington attempted to enforce an ordinance prohibiting the use of two of its streets (Abrams and Division) by motor vehicles for hire. Arlington is a city situated between the cities of Fort Worth and Dallas, two of the large cities of the state. The streets mentioned were the only route available to persons traveling from one of the cities mentioned to the other. Lillard, an operator of a bus line on the state highway, a part of whose route was from Fort Worth to Dallas, enjoined the enforcement of the ordinance against him. The city sought by appeal to the Court of Civil Appeals to have the injunction dissolved. The Court of Civil Appeals referred the matter by questions to the Supreme Court. The questions propounded and the answers of the Supreme Court are found in the case of the City of Arlington v. Lillard above mentioned. Touching the questions the Supreme Court said:

"The facts of the case as pleaded and certified to us raise two distinct and important issues, either of which, under our view of the law, is conclusive of the case. One involves the power of a municipal corporation in the exercise of its dominion over its streets to affect and interfere with the use of a State thoroughfare or highway outside of and beyond the city limits by prohibiting the use of two certain streets within the city, one of which is a part of said highway. This issue is embodied in question No. 1. The other issue is the power of a city to prohibit the use of all its streets to those carrying passengers for hire. This issue is certified in question No. 2."

In ordering the injunction sustained, the Supreme Court said in part:

"Appellees alleged Abrams and Division streets are the only streets or thoroughfares which can be used by them in traveling from Fort Worth and other points west of Arlington through the latter city to Dallas and other points east of Arlington; that there are no other ways through Arlington over which they may travel; and that a denial of the use of Abrams and Division streets prevents them from passing through the city, which affects and interferes with their use of the state highway between Fort Worth and Dallas and intermediate points. That such a prohibition and denial does affect and interfere with their use of the state highway, not only through the city of Arlington but outside of and beyond that city's limits, is fairly evident."

* * * * * * * *

"The power sought to be exercised by the city of Arlington, that to prohibit the use of its streets by commercial vehicles desiring to pass through the city, cannot be treated as coming within the fair intent and purpose of its creation reasonably proper to give effect to the powers granted to it."

The second question reads as follows:

"2. Irrespective of the foregoing question, has a city theright to prohibit the use of its streets, by an ordinance thatdoes not seek to merely control and regulate the use of saidstreets, to those operating motor busses?"

Of it the Supreme Court said:

"The other issue, embodied in question No. 2 is based on the allegation that Abrams and Division are the only through streets and that the denial of their use prevents appellees from passing through the city and is a denial to them of the use of any of the streets or of all the streets of the city."

Relator takes the position that the answer of the Supreme Court to the second question propounded by the Court of Civil Appeals supports the claim that the city of San Antonio was without power to enforce the ordinance. The position is deemed untenable. In answer to the first question, the Supreme Court declared that the city of Arlington could not legally, by ordinance, block the use of the state highway through the city. The answer to the second question, as that question is interpreted by the Supreme Court, as above quoted, is not regarded as bearing upon the question presented by the relator. The second question mentiond, as shown by the italicized language of the question, relates to the form of the ordinance, the terms of which are not set forth in the opinion of the Supreme Court, and there seems to be no publication of the opinion of the Court of Civil Appeals in the case of City of Arlington v. Lillard, supra. It is true that the Supreme Court uses the following language:

"The other issue is the power of a city to prohibit the use of all its streets to those carrying passengers for hire. This issue is certified in question No. 2."

The interpretation of the question, however, as set forth in the opinion of the Supreme Court, repels the idea that it was in the mind of that court to extend its announcement any further than was called for upon the facts before it, namely, the right of the city of Arlington to obstruct the highway through the city or to control he use thereof without appropriate ordinance.

In the case of City of Ballinger et al. v. Nichols et al.,297 S.W. 480, 481, the Court of Civil Appeals said:

"The decision in the Arlington case is expressly limited to the holding that a municipality may not deny the use of all its streets to intercity motor vehicular transportation for hire, or pass any ordinance that would have the effect of such denial. A city has the general power to regulate the use of its streets, and may even deny their use for private business conducted wholly within the city limits. See West v. Waco, (Texas Sup.) 294 S.W. 832, and cases therein cited."

In the case of West v. City of Waco, 116 Tex. 472,294 S.W. 832, the Supreme Court said:

"Under the enabling act to the Home Rule Amendment to the Constitution of the state, sections 12, 16, 18, 20, and 21 of article 1175, R. S., the power was delegated to the cities to regulate and control the operation of vehicles carrying passengers or freight for hire on and over the streets and public grounds of the cities.

"The power to prohibit the use of the public square in Waco as a place of business by commercial vehicles clearly comes within the powers delegated to the city of Waco."

Reasonable restrictions by ordinance of the streets of a city upon which automobiles operated for hire may operate have been upheld by the courts of this state in cases so numerous and so well-considered that the right to make such restrictions cannot be regarded as an open question.

Touching the proposition that the appellant cannot profitably operate his motor vehicle for hire and incur the expense of the bond required by the ordinance of the city of San Antonio, the precedents are numerous against the soundness of his contention. Among them are Auto Transit Company v. City of Fort Worth, 182 S.W. 685, in which an application for a writ of error was denied by the Supreme Court. See also Greene v. City of San Antonio, 178 S.W. 6; Ex parte Sullivan, 77 Tex. Crim. 72,178 S.W. 537; Ex parte Boble, 78 Tex. Crim. 1; City of Dallas v. Gill, 199 S.W. 1144; Ex parte Parr,82 Tex. Crim. 525; Craddock v. City of San Antonio,198 S.W. 634; City of San Antonio v. Fetzer, 241 S.W. 1034.

As stated in the original opinion, the conviction is for operating a motor vehicle without first executing the bond required by the ordinance. Appellant lays stress on the question of license, citing Doeppenschmidt v. New Braunfels,289 S.W. 425. The subject of license seems rather foreign to the issue here presented. License is a permission. The city of San Antonio possessing the right to regulate the use of its streets by motor vehicles for hire, would obviously have the right to issue a written certificate of permission. Whether charging a fee for the certificate would be legal is not involved. Article 6658 of the Revised Civil Statutes, 1925, upon which the appellant relies for the contrary view contains the following language:

"This provision shall not affect the right of incorporated cities and towns to license and regulate the use of motor vehicles for hire in such corporation."

In view of the remarks in the original opinion, a further discussion of the subject in hand is deemed unnecessary.

The motion is overruled.

Overruled.