Beene v. Bryant

201 S.W.2d 268, 1947 Tex. App. LEXIS 889
CourtCourt of Appeals of Texas
DecidedMarch 17, 1947
DocketNo. 5793
StatusPublished
Cited by13 cases

This text of 201 S.W.2d 268 (Beene v. Bryant) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beene v. Bryant, 201 S.W.2d 268, 1947 Tex. App. LEXIS 889 (Tex. Ct. App. 1947).

Opinion

PITTS, Chief Justice.

Appellees, four taxicab companies of Lubbock, instituted this suit on -January 25; -1947, against appellants, C. C. Beene and 11 other named defendants. The parties will be referred to here as plaintiffs and defendants as they were in the trial-court. Plaintiffs alleged in effect the names of the taxicab companies; that each of the plaintiffs is a partnership and set out the names of those composing each partnership; that each company had complied with the city ordinances of the City of Lubbock for operating for hire taxicabs on the -streets of the said city; that the ordinances óf the said city governing such operation were valid; that each of the companies had a specific sum of money invested in its business, the total sum of which invested by all of them being $91,767.98; that the defendants were operating taxicabs for hire on the streets of Lubbock as a business from a designated business location without having first complied with the provisions of the city ordinances of the City of Lubbock or without having attempted to comply with such city ordinances; that defendants were advertising their business as a veterans’ owned and operated business and were attempting to appeal to the sentiment of the general public by such means while in fact six of the nine named plaintiffs were véterans of World War II; that- plaintiffs were suffering daily losses as a result of the illegal operation of the [270]*270taxicab service by defendants and as a result of their unlawful interference. Plaintiffs prayed for the usual notice to issue and that upon a proper hearing that the defendants be temporarily enjoined from operating a taxicab company in the City of Lubbock and from holding themselves out to the public as operating such a business without having first complied with the terms and conditions of the city ordinances and that the injunction be made permanent upon a final hearing.

Plaintiffs’ petition was examined by the trial court and a hearing was set for 10 o’clock a. m. on January 30, 1947. Defendants waived the issuance of notice and on January 29, 1947, answered with a general denial and alleged plaintiffs have an adequate remedy at law; that they are not entitled to the relief sought and that the city ordinances of the city of Lubbock relied upon by plaintiffs were not legal nor valid. For some reason the hearing was postponed from January 30 to 1:30 o’clock p. m., February 3, 1947, on which date the City of Lubbock intervened with the permission of the trial court but over the protest of the defendants who likewise asked for a postponement of the hearing for several days because of such intervention by the city. The City of Lubbock, hereafter referred to as intervener, defended the validity of its ordinances and adopted the pleadings of the plaintiffs in so far as they affected the city’s interests and the interests of the public generally. The trial court examined the pleadings of the intervener and announced that such raised no new issues of a material nature and set the hearing, over the protest of the defendants, for 1:30 o’clock p. m., February 4, 1947, on which date defendants filed an answer to the pleadings of the intervener denying generally its allegations.

On the last said date and hour the hearing began with all parties present. After hearing the evidence the trial court granted the temporary injunction as prayed for to plaintiffs and intervener, pending a final hearing on the merits of the case, without requiring a bond from intervener but requiring a bond in the sum of $10,000 of plaintiffs containing the usual provisions in such bonds. The trial court based its judgment on the following findings set out therein : that the city ordinances in question were valid and constituted the rules for operating taxicab service over the streets of Lubbock; that the plaintiffs have complied with the city ordinances for operating taxicabs in Lubbock; that the defendants were engaged in the business of operating taxicabs for hire over the streets of Lubbock without having complied with the provisions of the city ordinances governing such operation or without having attempted to comply with the provisions of such city ordinances; that plaintiffs have a total investment of approximately $90,000 invested in their respective taxicab businesses combined and that the operations of the taxicabs in the City of Lubbock by defendants constituted unlawful interference with the lawful business of plaintiffs and that plaintiffs were suffering the loss of revenues as a result of the unlawful operations by defendants; that plaintiffs have a property right which they were entitled to exercise without the unlawful interference of the defendants and they have no adequate remedy at law to prevent such interference and to protect themselves from irreparable injuries and damages unless they were protected by an injunction; that the defendants were operating their business without any insurance or bonds as required by the city ordinances for the purpose of indemnifying or protecting any customers they may have against damages or injuries done to others, thus constituting a continuing hazard to the public; that the City of Lubbock had an interest in the question of whether or not defendants should use its streets unlawfully; that the City of Lubbock had no adequate remedy at law to protect the general public against the continuing hazards by the unlawful use of the streets by defendants. From the order granting the temporary injunction the defendants perfected an appeal to this Court and have presented five points of error.

Article 4662, Revised Civil Statutes, provides that an appellate court may hear an appeal from an order granting a temporary injunction “on the bill and answer and such affidavits and evidence as [271]*271may have been admitted by the judge of the court below.” The judgment, orders and rulings of the trial court are presumed to be correct until the contrary is shown. In order to procure a reversal the defendants must present a record to this Court that affirmatively shows that one reversible error or more were committed by the trial court and the record must be sufficiently full to show clearly the error or errors about which defendants are complaining. In this case there is no statement of facts in the record. Defendants are relying on points of error assigned without bringing up a statement of facts. We shall discuss the assignments of error in the order that seems most logical to us rather than in the order they are presented to us.

Defendants complain that city ordinances numbers 562 and 608 which purport to regulate and control the operation of taxicabs on the streets of Lubbock are vague, indefinite, discriminatory, and in violation of “due process of law” and that they are therefore invalid and void. The rule has often been cited and recognized by our State courts that one who has made no application for a license or permit under a licensing ordinance cannot attack its validity but one who has made application and has been refused such may attack the validity of the ordinance. 43 C.J. 557, Sec. 871; Kissinger v. Hay, 52 Tex.Civ.App. 295, 113 S.W. 1005; City of Graham v. Seal, Tex.Civ.App., 235 S.W. 668; Dallas Taxicab Co. v. City of Dallas, Tex.Civ.App., 68 S.W.2d 359; Ex parte Bogle, 78 Tex.Cr.R. 1, 179 S.W. 1193. Under the findings at the trial court, which are binding in the absence of a statement of facts, defendants have not complied with nor attempted to comply with the city ordinances in question 'and therefore under the rule above expressed they are not entitled to attack the validity of the city ordinances in question.

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Bluebook (online)
201 S.W.2d 268, 1947 Tex. App. LEXIS 889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beene-v-bryant-texapp-1947.