Ex Parte Bradshaw , 70 Tex. Crim. 166 ( 1913 )


The City of Hillsboro, in Hill County, was duly incorporated by a special Act of the Legislature. Among other powers given by its charter, is the power "to control the streets, alleys, highways, sidewalks and public grounds and places in said city." Also "to regulate and control the use of said streets, alleys, etc:, by any person, animal or vehicle in whatever way and for whatever purpose." Also to establish, and erect markets and market houses and designate "and control, and regulate market places and privileges." Also "to license, tax, regulate, suppress and prevent hawkers, peddlers, pawnbrokers, and dealers in all kinds of junk and second-hand goods, wares and merchandise, itinerant vendors of clothing or wearing apparel, or any other business or occupation which in the opinion of the city council shall be the proper subject of police regulation."

Under this power and authority said city duly passed and put into effect an ordinance regulating traffic upon the streets and alleys of said city within the fire limits, and regulating peddling, vending and exhibiting thereon, and providing fines for violation thereof. Section 3 of *Page 174 said ordinance is: "It shall hereafter be unlawful for any person to use the streets or alleys embraced within the fire limits of the City of Hillsboro, for the purpose of vending or displaying goods, wares, merchandise or produce or other articles, or for the purpose of peddling goods, wares, merchandise, produce or other articles; provided, however, that this section shall not apply to any person who himself offers for sale any products raised or grown upon the property owned or rented by him or under his control."

Section 7 of said ordinance makes the violation thereof a misdemeanor punishable by fine not exceeding $25.

On December 12, 1912, proper complaint was filed against relator Bradshaw, a proper warrant issued for his arrest, and he was arrested by the city marshal and properly held thereunder. He thereupon sued out a writ of habeas corpus before the county judge of Hill County, claiming that he was illegally restrained of his liberty because the City of Hillsboro had no authority to pass such ordinance and it is void. The county judge heard the evidence and argument, and remanded the relator to the custody of the marshal, from which this appeal is prosecuted.

The further facts show that on December 12, 1912, relator was a peddler selling apples which he had in his two-horse wagon; that he made a sale therefrom while he was on the public square in what was shown to be a part of the public street, or square, of said city. The fee to this particular portion of the square, or street, was in Hill County. Its courthouse, it seems, was located in the center of this square. This part of the square, or street, where relator was had been paved and was then and for many years prior thereto had been used by the public generally for road or street purposes. The city swept the whole of this paved street, or square, and exercised control over it as one of the public streets, or thoroughfares, of the city. It appears that the relator offered for sale apples upon the square, or streets, of said city, embraced within the fire limits thereof and that such articles offered for sale and sold by him were not products grown or raised upon his property or property rented by him or under his control.

The main contention by relator is that said ordinance is void because it is class legislation; that it prohibits peddlers from selling on its streets and authorizes other persons to sell on its streets within said fire limits, any products raised or grown upon their property, rented by them or under their control, claiming that said ordinance violates that clause of our Constitution, section 3, article 1, which is: "All free men, when they form a social compact, have equal rights; and no man or set of men is entitled to exclusive separate public emoluments or privileges, but in consideration of public services." It is undoubtedly the law of this State, as held by the Court of Civil Appeals in Wade v. Nunnelly, 19 Texas Civ. App. 256[19 Tex. Civ. App. 256], 46 S.W. Rep., 668, that persons have no vested right to make marts of the streets, alleys and other public places in any incorporated town. It is also unquestionably the *Page 175 law of this State that the Legislature may classify persons according to their business and may apply different rules to those which belong to different classes, and that municipal corporations, when authorized by their charters, can also do this. Supreme Lodge v. Johnson, 98 Tex. 1; Campbell, Receiver, v. Cook, 86 Tex. 630; Ins. Co. v. Chowning,86 Tex. 654; Marchant v. Ry. Co., 153 U.S. 380; Green v. State, 49 Tex.Crim. Rep.; Smith v. State,54 Tex. Crim. 298; Beaumont Traction Co. v. State, 57 Texas Civ. App. 605[57 Tex. Civ. App. 605], 12 S.W. Rep., 615; Douthit v. State, 36 Texas Civ. App. 396[36 Tex. Civ. App. 396], 82 S.W. Rep., 352, and 98 Tex. 344 [98 Tex. 344]; Ins. Co. v. Gooding, 49 S.W. Rep., 123; Ins. Co. v. Mettler, 185 U.S. 308; Nash Hardware Co. v. Morris, 146 S.W. Rep., 874; R.R. v. Taylor, 134 S.W. Rep., 819; R.R. v. Grenig, 142 S.W. Rep., 135; De Grazier v. Stephens, 101 Tex. 194 [101 Tex. 194].

This court, in Ex parte Henson, 49 Tex.Crim. Rep., expressly held that the City of Greenville in Hunt County, had the power to prohibit the use of certain streets and the public square of that city for the purpose of peddling. The City of Greenville, as shown by the opinion in that case, was incorporated under the general incorporation laws of this State, and that it was given the same power and authority over its streets that the City of Hillsboro was substantially given over its streets, square, etc. In that case, as is shown by the report of it, the City of Greenville made it an offense "for any person to peddle or in any other manner sell any kind of merchandise, patent medicine, or nostrum on the public square and certain streets," naming them. Henson contended that the ordinance was unreasonable and, therefore, void. He also contended that the ordinance was inseparable and that it applied to others as well as peddlers. This court held that the rule of ejusdem generis applied and that the "ordinance evidently had in view as its primary object, to prohibit peddling in the public streets and on the public square of Greenville, and what follows as to other sales relates to this character of sales — that is, sales by peddling." The opinion then proceeds to hold that even if wrong in applying the rule of ejusdem generis that then in the latter part of the ordinance, indicating that others than peddlers were prohibited from using the said streets and square for peddling purposes, that it was severable, and held the ordinance constitutional and within the powers of the corporation to prohibit peddling on said streets and public square. The opinion also holds: "We have no doubt that it is within the power of the Legislature to confer on towns and cities the power to regulate peddling within the jurisdiction of such towns and cities, especially on the public streets and squares of such cities, the same being peculiarly within the jurisdiction of towns and cities. Wade v. Nunnelly, 19 Texas Civ. App. 256[19 Tex. Civ. App. 256], 46 S.W. Rep., 668. Nor does the fact that the State, as is the case here, may license peddlers, exclude the idea of municipal supervision, where the power for such supervision is given in the charter."

It is true that this court has uniformly held that ordinances levying *Page 176 any occupation tax on peddlers which exempts from its operation other persons as peddlers, were invalid. Ex parte Jones,38 Tex. Crim. 482; Rainey v. State, 41 Tex.Crim. Rep., and other cases. And that ordinances which exempted certain persons within any given class is uniformly held invalid. But those cases do not apply to this question. As shown by these decisions and on like questions the very reason that they were held invalid and violative of said provision of our Constitution was because they excepted from the operation of the act other persons within thatclass, not because the Legislature or the municipal corporation did not have the right or power to make classes which were founded upon some just basis, and tax, regulate or prohibit one class and not the other.

The question raised in this case has many times been decided adversely to relator's contention by the courts of different States. State v. Montgomery (Me.), 43 Atl. Rep., 13; People v. Sawyer (Mich.), 64 N.W. Rep., 333; In re Nightingale, 11 Pick., 167; 2 Dillon on Municipal Corporations, sec. 706 (5 ed.); Commonwealth v. Rice, 9 Met. (Mass.), 253; Wartman v. Phila., 33 Pa. St., 202; Dutton v. Mayor, 121 Tenn. 25; People v. De Blaay,137 Mich. 402; see also note in vol. 16, p. 1030, Am. Eng. Ann. Cases, where many cases to this effect are cited.

In the case of People v. Sawyer, 64 N.W. Rep. (Mich.), 333, the Supreme Court of Michigan said: "The discrimination in favor of mechanics and farmers in the sale of their products is within the power conferred by the charter upon the common council. These immunities have been recognized for many years. By the statute of 50 Geo. III, c. 41, sec. 23, real workers and makers of goods within Great Britain were exempt from the payment of the license which was imposed upon hawkers and peddlers. 1 Barn. Adol., 279; 10 Barn. C., 66. In many if not in most of the American States, these immunities are granted to mechanics and farmers selling their own products, and the power is not questioned."

In the case of State v. Montgomery, 43 Atl. Rep. (Me.), 13, the Supreme Court of Maine said: "And the argument is that the Legislature may not properly say that acts which, if committed by one person, are a crime, if committed by another are not a crime. It is undoubtedly true that police regulations of this kind, to be valid, must be uniform, and must not discriminate against one class, and in favor of another. In other words, in an act to regulate peddlers, all peddlers of the same kind, under the same circumstances, must be regulated alike. It is a `natural, inherent, and inalienable right' of every man that he shall be subject only to the same burdens, limited only by the same restraints, regulated only by the same laws, as is his neighbor, situated under the same conditions as he is. Is this right abridged by this statute? It is contended that the exception which permits one to peddle without license `the products of his own labor, or the labor of his family, any patent of his own invention, or in which he has become interested by being a member of any firm, or stockholder in any corporation which *Page 177 has purchased the patent,' is a discrimination in favor of some and against others. We do not think so. If one may peddle freely the products of his own labor, so may all. The products may be unlike, but the freedom to prosecute one's own business and to peddle his own products is free alike to all. So of the other exceptions. While it may happen that various producers may peddle each the product of his own labor without license, but not of the labor of another, still we think this fairly answers the requirements of uniformity. The Legislature is the sole judge of the extent to which the business of peddling should be regulated, and its conclusions are final, so long as the burdens imposed do not bear unevenly upon citizens. Ex parte Thornton, 12 Fed. Rep., 538."

In the case of Wade v. Nunnelly, 19 Texas Civ. App. 256[19 Tex. Civ. App. 256], 46 S.W. Rep., 668, cited above, our third Court of Civil Appeals, in discussing the power and right of a municipal corporation of our State to prohibit the use of its public streets for market places, speaking through Judge Key, said:

"The ordinance in question does not undertake to prevent or interfere with the right of the appellees to purchase, sell, or otherwise deal in the products referred to upon their own premises; nor does it prohibit other persons from carrying such products and delivering them to appellees upon their premises. It may, and doubtless will, interfere with the privileges formerly enjoyed by the public at large of exhibiting such products upon the streets and in other public places within the territory referred to, and the convenience resulting therefrom to the appellees, as dealers in such products. But appellees have no vested right to make marts of the streets, alleys and other public places; and to deny them the privilege of so doing is not to destroy or deteriorate any of their property rights. It may result in inconvenience, and even additional expense to them; but there are many laws, and especially police regulations, that have this effect, and are, nevertheless, valid."

Many reasons, all of which are very reasonable, could be given why the municipalities should have and do have the right to make just such classifications as was made by this ordinance. It is noticed that the ordinance prohibits peddling on those streets which are included within the fire limits. This, it occurs to us, in the larger towns and cities of this State, is necessary to be done. We know, as common knowledge, that fire limits in towns and cities include only that part of the thickly settled and business portion. In case a fire breaks out within this territory it is necessary that the streets be kept open so that the proper fire department with its apparatus will not be obstructed in reaching the fire as quickly as possible. If peddlers were not prohibited from occupying the streets within such localities they could take possession of the streets and obstruct the fire department in such a way as to be a menace to the whole business, and thickly settled portions of towns and cities. As aptly suggested by Hon. Tarlton Morrow, city attorney *Page 178 of Hillsboro, and who has filed a brief herein in behalf of the city and respondent, that the city is charged with the duty of looking after the health of the citizens, and it is a known fact that products usually peddled are not so fresh, nor wholesome as those offered by the farmer who raises them and himself offers them for sale on the streets. The farmer or other producer who brings his own raised products to town only comes occasionally and does not remain long; whereas, the peddler takes his stand in the public street, or on the public square, in the early morning and remains throughout the whole day; that the filth that accumulates from the standing of teams and throwing of the peel of fruits and other refuse matter into the street, makes more or less a nuisance and a burden which must be removed, and is, daily by the city authorities. If, therefore, the city did not have authority to make such classification and prohibit the peddler from occupying the streets for his business, they could practically take charge of the whole street every day and from day to day throughout the year, and thus maintain their places of business in the public streets which were never intended for any such purpose. Whereas, the other merchants have to buy their own lots, erect their own buildings, or rent them and stay on their own property for the purpose of conducting their business when their competitor, the peddler, could, if not prohibited, monopolize the whole streets, pay no rent or other revenue to the city, create a nuisance and an obstruction continuously in various ways. So that we hold the classification made by this ordinance is reasonable and proper and that the ordinance, for no purpose is invalid, but on the contrary it is valid. State v. Barbelais, 101 Me. 512; Louisville v. Raupe, 6 Mon. (Ky.), 591; Com. v. Rice, 9 Met. (Mass.), 253; Atty. Gen'l v. Tongue, 12 Price, 51; Com. v. Roenisk, 10 Pa. Dist., 51; 21 Cyc., 372, and cases cited in note 49; 3 Dil. Mun. Corps., sec. 1166, and notes.

Appellant's contention that he was on that part of the public square, the fee and title to which was in the county, and that the county gave him authority to establish and maintain his peddling business there, can not be maintained. Where he located and kept his wagon and horses in his peddling business, as shown, was in the public street or square. Hill County could no more give him power or authority to obstruct the streets or public square than any other corporation or person could do. Clearly this location was within the city limits and on the public streets or square, paved and used for public uses and the city, and not the county, had jurisdiction, power and authority over it, at least, for street purposes and for a public square for the public. The judgment of the county judge will be affirmed and the relator remanded to the custody of the marshal.

Remanded to custody.

I concur in opinion remanding relator.

DAVIDSON, PRESIDING JUDGE, dissents. *Page 179

May 14, 1913.

As the ordinance charged to have been violated is set forth in the majority opinion, I deem it unnecessary to copy it. My brethren have decided this case, resting it, in my opinion, upon erroneous lines. They base their conclusion, as I understand them, mainly upon the doctrine of the reasonableness of the ordinance. That disposes of the case upon an issue not primarily involved. I do not care to discuss that proposition, but I think it unreasonable as all acts of legislative bodies are invalid which discriminate in favor of one and against others. The question here is, does the ordinance discriminate between citizens? If it does, it is void, and the question of reasonableness has but little to do with it. I believe that fairly construed no legally safe conclusion can be reached otherwise than that the ordinance is discriminating in its nature in favor of certain citizens as against all others engaging in the same or similar lines of business and selling the same products, etc. The prevailing opinion seeks to avoid this by erroneous classification. The taxing power is not here involved. The question here is discrimination in vending things and selling on the streets, and not the question of selling without license. Under the organic law every citizen in Texas is entitled to all the rights and privileges of every other citizen, and this applies as well to privileges as to rights. Bill of Rights, section 3; Harris' Annotated Const., p. 50. The Legislature has no power to enact legislation contravening this provision of the Constitution, much less has that body authority to empower municipal corporations to do so. That cities and towns may control streets does not authorize the creation of ordinances which discriminate in the control of such streets between the citizens of the municipality or those of the State. When an ordinance is passed, it must not discriminate against anyone who may come under its operation. I do not care here to discuss the authority of cities and towns to control streets by means of reasonable ordinances, but would say no ordinance can legally stand or ought legally to stand, and can not be reasonable where it discriminates in favor of or against our citizenship. I understand that in these latter days there is a growing tendency towards the proposition that government is *Page 181 superior to the people and the Constitution. This would hardly be asserted directly and explicitly, but there is a tendency in that direction. Of course, this is not correct, and if carried to its legitimate conclusion would be subversive of our constitutional form of government. Our people created this government; the government did not create them. The government is our subject; weare not its subjects. The citizenship of Texas are the sovereigns and "all power is inherent in the people." and they and they alone can make and unmake their government and Constitution. If they do not like their Constitution they can make another, but legislative bodies — State or municipal — can not make or change that instrument. This is plainly set forth in the Bill of Rights. Among other things set forth in the Bill of Rights clearly and emphatically is the reserved right and guaranty that every citizen has equal rights, and no man or set of men is entitled to separate public emoluments or privileges. Bill of Rights, section 3; Harris' Annotated Constitution, page 60, for collation of cases. It is again emphatically emphasized in that document that no citizen shall be deprived of life, liberty,property, privileges or immunities, etc., except by due course of the law of the land. Bill of Rights, section 19; Harris' Annotated Constitution, page 184, for cited cases.

To prohibit one citizen or class of citizens from engaging in a business under like or similar circumstances with all others similarly situated is plainly violative of the provisions of the Constitution. Ex parte Jones, 38 Tex.Crim. Rep.; Rainey v. State, 41 Tex.Crim. Rep.; Ex parte Woods, 52 Tex. Crim. 575; Gustafson v. State, 40 Tex.Crim. Rep.; Poteet v. State, 41 Tex.Crim. Rep.; Bolen v. State, 48 S.W. Rep., 1118; Carraci v. State, 48 S.W. Rep., 1118; Wilson v. State, 48 S.W. Rep., 1119; Owens v. State, 53 Tex.Crim. Rep.. It is useless to multiply the cases. These are sufficient.

This ordinance authorizes certain citizens to sell, etc., certain products, etc., and prohibits all others from engaging in the same business or to sell the same character of product or goods under similar circumstances. If this is not discrimination I am rather at a loss to know what it takes to constitute discrimination. It is a small sized monopoly, confined to certain citizens exclusive of all others, a miniature trust created by municipal ordinance confined to the favored few. I do not care to elaborate this question. The above cited cases are clearly in point, and ought to settle the question. The Constitution prohibits this character of legislation, and this would be more than ample authority without cases. The Constitution is superior to city ordinances, and controls all legislative bodies of whatever magnitude, and as well the judicial and executive departments of government. I do not believe it would be seriously asserted that the legislative, executive or judicial department combined have the power to set aside, override or minimize constitutional authority or limitation. The cases cited by my brethren on the questions decided in the cited cases may be correct as decided, *Page 182 but they are inapplicable to this case and the question here involved. Cases properly decided, if properly applied, are all right, but because properly decided on the question therein involved does not and can not constitute them authority to sustain propositions not involved in those decisions. The question being different, the cases do not apply. Having lost sight of the doctrine of discrimination in legislation and in this ordinance, it is but natural the opinion should also lose sight of the inapplicability of the cases cited in the opinion. Having ignored the discrimination in the ordinance, my brethren have cited inapplicable decisions involving other questions, and called them into service to do guard duty in this case. The ordinance here involved is that under which relator was arrested, with its discriminating qualities, and not the ordinance referred to in the Henson case, 49 Tex.Crim. Rep.. The two ordinances are entirely different. The premises being wrong, the cases do not fit, and the conclusion reached necessarily erroneous. The Henson case, supra, does not support my brethren in their opinion, nor can it be held as authority in this case as will be plainly seen from reading it. The ordinance discussed in the Henson case made no exception, hence there was, no discrimination. It applied to all citizens alike, and the punishment provided was for any and every citizen of Texas who happened to come within its denunciation. The question of class legislation, therefore, was not in that case. The question here is class legislation, and pointedly so on the face of the ordinance. The same may be said of the case of Wade v. Nunnelly, 19 Texas Civ. App. 256[19 Tex. Civ. App. 256], 46 S.W. Rep., 668, as of the Henson case. The question in that case was, could the writ of injunction be made available to prevent the enforcement of a penal ordinance. It was claimed in that case that the ordinance was in law void, therefore, it was sought to enjoin its enforcement by writ of injunction. The court decided that the writ of injunction was not available, it being a criminal case, "unless it is made to appear that such enforcement would result in irreparable injury to property rights." The validity of the ordinance was not necessarily involved as a question to be decided, and as I understand that decision the court did not decide the case on that question. There were some expressions as to the power of the city council to ordain reasonable ordinances, but that is obiter dicta, and this whether that statement in the opinion was right or wrong from a legal standpoint. The question was not necessary to a decision of that cases as it is not, I think, in this case, as to the power of a city to control its streets. The question is, that in the control of those streets there should be no discrimination as against one class of citizens or in favor of another class of citizens; that the control must be exercised with equal rights to all and without class legislation. The ordinance in the Wade v. Nunnelly case was unlike the ordinance here involved. That ordinance was intended to apply to all alike, without discrimination in favor of or against any citizen or class of citizens. That decision, therefore, does not sustain the majority opinion, nor has it any applicability to the question here *Page 183 involved, that is, discrimination. I do not believe my brethren would cite approvingly the decision in the Wade v. Nunnelly case on their decision of the injunction question, for it is directly contrary on that question to their opinion in Ex parte Roper,61 Tex. Crim. 68, and Ex parte Looper, 61 Tex. Crim. 129. The Wade v. Nunnelly decision is in conformity with the writer's dissent in Ex parte Allison, 48 Tex.Crim. Rep., at page 641. See dissenting opinions in Ex parte Allison case, supra, and Ex parte Roper, 61 Tex.Crim. Rep.. I do not care to discuss the two cases, Wade v. Nunnelly and Ex parte Henson further; they do not apply here nor support the prevailing opinion in this case.

It perhaps was not necessary here to dissent as my views on these questions are so well known to the legal profession and the bench, but I do so because I feel persuaded that my brethren are in error in their application of cited cases in support of their conclusion. So far as I have been able to ascertain this seems to be an opinion on pioneer lines, and may be made to become the progenitor of another line of decisions which, in my judgment, are erroneous and out of harmony with our theory of government, wherefore I have deemed it advisable to say as much as I have said.

The Hon. Luther Nickels, counsel for relator, has filed an able and exhaustive review of the cases cited by my brethren and has so fully, in my judgment, answered the opinion I believe it right and proper that his argument should be perpetuated, and it, therefore, will be in substance printed with the report of the case. There is much in it of value to the bench and bar of the State.

For the reasons indicated I enter most respectfully this dissent from the decision of the case. The relator ought to be discharged, and the ordinance held invalid.

Relator by his attorney has filed herein a very lengthy motion for a rehearing. There is but one assertion therein which we deem it either necessary or proper to mention. We quote that assertion: "In the majority opinion the court says: `The main contention by relator is that said ordinance is void, because it is class legislation; that it prohibits peddlers from selling on its streets, and authorizes other persons to sell on its streets within said fire limits, any products raised or grown upon their property, rented by them or under their control.'

"It is true that relator asserts that the ordinance involves class legislation in the most objectionable form and of the `purest ray serene'; but he makes no such contention as is stated in the latter part of the quoted portion of the opinion. He does not claim to be a `peddler' and there can not be found a scintilla of evidence in the record to show him to be such; and as the whole fabric of the opinion is shot through with this thread of error, and as the judgment appears, fundamentally, to rest upon an assumption not only dehors the record but flatly contradictory thereof, we deem it appropriate, then, to discuss relator's status in the purview of the ordinance."

In the record before us the following is specifically agreed to by both parties as facts, — not that evidence was introduced showing or tending to show it — but as facts, towit:

"On the 12th day of December, 1912, a warrant was duly issued out of the City Corporation Court of the city, being based upon a complaint in due form made and filed charging the defendant with vending and displaying goods, wares, and produce upon the streets of the City of Hillsboro embraced within the fire limits, and of peddling goods, wares, and produce upon such streets, when he was not then offering for sale products raised or grown upon property owned or rented by him or upon property under his control.

"Upon this warrant B.D. Hooks, the city marshal, arrested the defendant, and still holds him by reason of the authority of said complaint and warrant.

"The defendant on the 12th day of December, 1912, in the City of Hillsboro, Texas, and before the making of said complaint, did offer for sale and vend and peddle goods, wares, and produce upon the streets of the city embraced within the fire limits, towit: on Elm Street on the public square, and that such goods, wares, and produce were not products grown or raised upon property owned or rented by him or under his control, — towit: apples."

It occurs to us that this shows not only "a scintilla of evidence," but it goes a little bit further, and, we think, is amply sufficient to show that not only did relator use the streets within the fire limits of the *Page 180 City of Hillsboro for the purpose of vending or displaying goods, wares, merchandise and produce, but that he did offer for sale and vend and peddle goods, wares and produce upon such streets not grown or raised on property owned by him, or under his control, and that this shows he was a peddler.

Other than the very lengthy motion for a rehearing, in the opinion of the writer hereof, there is no other noticeable feature of it, except an uncalled for and an unnecessary exhibition of ill-temper. The motion is overruled.


I will write later.