Ex Parte Bogle

179 S.W. 1193, 78 Tex. Crim. 1, 1915 Tex. Crim. App. LEXIS 167

• Court: Court of Criminal Appeals of Texas
• Decided: November 3, 1915
• Docket: No. 3749.
• Status: Published

Opinions

PRENDER GAST, PeesidiNg Judge.

In vacation Mr. Bogle applied to one of the judges of this court for a writ of habeas corpus alleging that he was illegally restrained of his liberty by the chief of 'police of the City of Austin under a capias issued by the Corporation [Court on a complaint filed therein August 31, 1915, charging him with that day operating a jitney on one of the public streets of the city without having a license, in violation of the ordinance making it an offense to do so and seeking his discharge from said claimed illegal arrest and detention. The writ was granted and the cause set for hearing before this court in term time. .

The relator. Bogle, contends that said ordinance is unconstitutional., invalid and void on various grounds.

The attacked ordinance was enacted July 6, 1915, and on its face clearly appears to be regulatory only in all of its provisions and as a whole. Long before its enactment the city had in force another permit ordinance requiring every person running any automobile on its public streets to apply to and get from its clerk a permit to do so, and requiring the payment of a fee of 50 cents therefor, and that the number of his machine be properly placed thereon. Mr. Bogle had complied with that ordinance.

The city also had another drivers’ ordinance, in effect, requiring every person who engaged in the business of carrying passengers for hire in any automobile within its limits, in addition to said'permit, to get a driver’s license from it and, when granted, to pay the city tax collector a fee of $3 therefor. Mr. Bogle had also complied with that ordinance.

It is agreed herein that about 1800 persons had taken out said permits, and that 95 of these had taken out said $3 driver’s license, but that no person had applied for license under said jitney ordinance, and that Mr. Bogle had in no way complied therewith, and had no license thereunder.

It is also agreed that there was “a further class of vehicles” permitted to operate in carrying persons in the city under its ordinance designated as “any hack, . . . omnibus, ... or other vehicle of any name whatever,” carrying persons for hire, and that all such ‘have designated stands and run only on special calls and are not held out as running over any special route, and they charge a higher fare than jitneys.” That all these are required to pay only said $3 license fee, and no bond is required of them. That all automobiles permitted to operate in the city, whether private ears, service cars having designated stands, or jitneys, are subject to the same traffic ordinances except such special provisions as are in said jitney ordinance relating to jitneys alone. That Mr. Bogle on the date charged in the complaint against him operated a five-passenger Ford automobile in the city as a jitney running on a route having definite termini of less than thirty-five blocks, which automobile operated by him would clearly be a jitney as defined in section 1 of the attacked ordinance. This ordinance makes it an offense to thus operate a jitney without license, and it was for that only Mr. Bogle was arrested and held in custody by the chief of police.

It is further agreed that there was a street ear system operating in the city as a carrier of passengers under a franchise; that it carries, passengers and gives transfers anywhere on its lines for five cents fare. It is not required to take out license nor give bond. It is required and pays the city $1 per mile occupation tax, and the same amount to the county and double that to the State. Its franchise and the city ordinances require it to pave its tracks and one foot additional on each side thereof wherever the city paves and to maintain the same space on all other streets where its tracks are laid. It has spent alone for paving in the city over $300,000, and its annual paving is about $30,000. It pays the city $4900 ad valorem tax and one-half that sum to the State and county annually. -Its gross receipts annual tax to the State is $1955, and its Federal income tax is $611 annually. Its total annual tax for the space of each passenger is $58.76.

The charter of the City of Austin was granted by the Legislature, approved February 3, 1909, and by a provision therein the courts are required to take judicial knowledge thereof.- (Special Laws of 1909, pp. 8-45.) It provides that the mayor and four councilmen shall be known and designated as the city council and have all legislative, executive and judicial functions or powers granted.

Among other provisions of the charter and powers given the city council are these:

Article XI, section 1. “The city council shall be vested with the ;power and charged with the duty of adopting all laws and ordinances not inconsistent with the Constitution and laws of the State of Texas, touching every subject matter and subject within the purview of the local self-government conferred by this Act upon the citizens of the City of Austin.”

Article XIY, section 38. “. . . To make and regulate stands for vehicles at said depots and other public places.”

Article XV, section 1. “The city council shall have power, subject to the restrictions herein contained, to make all rules, regulations and ordinances which may be necessary and proper for carrying into effect the powers specified herein.”

Article XV, section 14. “. . . The council may enact any ordinance not in conflict with the penal laws of the State.” ¡

Article XII, section 1. “The city council shall have exclusive control over and regulation of all streets, alleys, sidewalks and highways, and the public squares within the corporate limits of the city, and shall have power (subdiv. h) to regulate the use of the same. . . .”

Article LIV. “The city council shall have power by ordinance (see. 10) to license and regulate hacks, carriages, omnibuses, wagons and drays, and to fix the rate to be charged for .the carriage of persons and for the wagonage, cartage, and drayage of property.”

Section 32. “. . . To regulate the speed and handling of automobiles.”

Tinder these powers and authority, we think, unquestionably, the city had the power and authority to enact and enforce any and all reasonable ordinances, wnieh it deemed necessary and proper, to regulate tbe handling of automobiles and the use of the streets by persons owning or operating the same in the carriage of passengers for hire. A jitney is an automobile, both in fact and so agreed herein and as specially defined by section 1 of said ordinance. In fact, as we understand, ■appellant concedes that the city council had power and authority to pass all reasonable ordinances regulating the jitney and the operation thereof on the streets of the city.

However, the first ground of his attack on said jitney ordinance is "substantially this: That section 1 of said ordinance, when considered in connection with other ordinances, and the testimony, violates section 3, article 3, of our State Constitution and the Fourteenth Amendment •of the Constitution of the United States in that it discriminates between the rights of the same class and places a greater burden upon one than another of the same class, and that whether the amount charged be a tax or license fee.

In the recent case of Ex parte Sullivan, 77 Texas Crim. Rep., 72, we discussed an ordinance of the City of Fort Worth, Texas, of which the ordinance attacked herein is substantially and practically the same, and therein held, as we do in this case, that the said ordinance violates neither our State Constitution nor the Constitution of ’ the United Stales in this particular. What we said in the Sullivan case on that subject specially applies to this case. We think there can be no question but that the jitney as defined in the ordinance herein and as operated by Mr. Bogle is a class within itself, separate and distinct from both the street car system and other automobiles or vehicles ivhich have stands as described above. In addition to the Sullivan case and' authorities therein cited, we' cite Ex parte Cardinal, 150 Pac. Rep. (Cal.), 348. By the ordinance all jitneys are treated exactly alike, and neither within that class is treated in any way whatever different from another.

He next attacks sections 9, Í0 and 11 of said jitney ordinance requiring a bond, claiming that it is beyond the power of the city, and its charter confers no right, either express or implied, to create a cause of action in behalf of individuals, strangers to the licensee or licensor; or to provide a remedy for such or to insure or indemnify the city for damage or loss unless the same is of such a nature as to render the cify liable either by statutory or common law; and by the terms of the ■ordinance and conditions of the required bond it affirmatively appears that the damage or loss sought to be guarded against is not of this character.

These sections of the ordinance, in effect, as a prerequisite for a license to operate a jitney, require that for each jitney the owner, etc., shall procure and file with the city an indemnity bond or policy of insurance in the sum of $5000, conditioned that the licensee shall pay any judgment of court finally rendered against him, etc., to the extent of $2500 on account of injuries to or death of any person or injury to the property of another, and to the extent of $5000 for like injuries occurring in one accident to more than one person, caused by the negligence of such licensee, etc., and further conditioned to hold the city harmless from any and all claims, etc., resulting to it from the granting of such license. This bond can be made by either a surety company authorized to do business in this State or by personal security.

Neither these sections nor the ordinance as a whole, as we understand it, in any way creates, or attempts to create, in behalf of any person any liability against the licensee or his bondsmen, but it merely provides as one of the reasonable regulations of the licensee that he shall provide by such bond or indemnity a means to satisfy the loss to such one as may be damaged by him finally rendered by a court. It in no^ way prescribes any contingency under which the licensee should be liable to any person for any negligence whatever committed by him or other act by him. The city would have no right to create that kind of cause of action; and, as stated, it does not attempt to do so.

It is agreed herein that the City of San Antonio, Texas, had an ordinance regulating jitneys, wherein it required as a prerequisite to a license that the jitney owner should execute a bond in the sum of $10,000, with the conditions thereof somewhat like the conditions of the bond of the ordinance herein attacked; and that also the City of Fort Worth, Texas, had a like ordinance requiring a bond in the sum of $2500 with somewhat of the same conditions; that in the City of San Antonio, under the ordinance of that city, ninety-one such bonds as there required had been given, and under the ordinance of the City of Fort Worth eighty-nine bonds as there required had been given.

In the Sullivan case, supra, we held that the bond required therein was a proper regulation. We likewise hold in this case that the bond required herein is a reasonable regulation, not void nor unconstitutional on any ground, and is a proper regulation as shown in this case in the-City of Austin. In addition to the authorities cited on this point in the Sullivan ease, we now cite the case of Ex parte Bell, 24 Texas Crim. App., 428; Green v. San Antonio, 178 S. W. Rep., 6; Ex parte Cardinal supra.

In this connection, and others as well, it was further agreed herein that prior to the passage of the jitney ordinance attacked there were about sixty jitneys running in the city. Some of them had inexperienced or reckless drivers, and few of them had any financial responsibility, except some owned the Ford car operated. These jitneys traversed the most traveled streets of the city, and largely confined their traffic to the paved or best graded or graveled streets and practically paralleled all the street railway lines, and in going their usual route all, or about all, of them traversed certain mentioned streets, which are the principal streets of the city and in the most congested centers of ordinary traffic and tended to greatly congest the traffic of said streets.. That during the sixty days prior to the passage of said ordinance there were a number of accidents due to the jitneys. That the city council, in view of the traffic conditions brought about by the advent of the jitney and of the accidents due to their presence and their menace to the general safety of the public, deemed that there was ■an imperative and urgent necessity for the passage of said jitney ordinance.

It is further agreed herein that the jitney traffic in the city is a business done, carried on and operated solely upon the public streets and thoroughfares of the city and is. largely confined to the paved streets and best graded and graveled streets; and that the jitney is a new and hazardous kind of passenger traffic, and the danger to individual accident and injury is greater, and that the number of accidents in proportion to the number of passengers carried and injuries has, in fact, been greater in this line of passenger traffic than in any ■other commonly used.

It was further agreed that, by reason of the new and hazardous nature of the jitney service, very few surety or indemnity companies would undertake such security until the class, character and nature of the service have been reduced to a system (that it was not meant thereby that thereafter either of said bonds could or could not be given under said jitney ordinance); and that a personal bond could ordinarily be .given only by a careful driver known to his sureties to be temperate, cautious and reliable; that the said bonds given in the cities of San Antonio and Fort Worth were made by an indemnity company. It was further agreed that application was made in behalf of the Austin jitneys to certain named indemnity companies without success and that a certain other company would write a policy on autos carrying passengers for hire, but would not write a policy under the ordinance attacked.

The next ground of attack is of section 7 of said ordinance, which prescribes a license fee of $50 per annum for each jitney with a seating capacity of five or less, including the driver, and of $75 for a seating ■capacity of not more, than seven but more than five, including the driver, and of $100 for a seating capacity of more than seven persons, including the driver, claiming that these fees are not license fees but an ■evasion of the law and, in .fact, a tax for revenue for city purposes and not as a police regulation.

So far as the relator is concerned, he is in no position to attack said section of the ordinance for the amount of the latter two fees, because it is conclusively shown that he comes within the $50 class onty, and we do not pass upon those features of that section prescribing the $75 and $100 amount of license fees.

On this point, in addition to the agreed facts above recited, is this further agreement: that the carrying out of said jitney ordinance will require the printing of blanks and stationery for licenses, applications, bonds and such other matters as are named in the ordinance, and will require more clerical labor, all at an expense to the city that can not now be estimated; and that the policing of the ordinance will require two, or possibly three, extra policemen at a salary of $9.0 each per month, including a motorcycle man and cost of the motorcycle, all at .an additional expense of probably $2500 a year, if the same number of jitneys were in operation; and that in fixing the amount of said license fees the council did not expect the sum realized therefrom to more than pay the expenses of policing and enforcing said ordinance and did not expect to or contemplate the realizing of any revenue to the city over and above the additional expense caused by the proper enforcement of said ordinance.

We think that this demonstrates that the said $50 license fee was in truth and in fact a license fee only and not a tax to provide an extra revenue and that this section of the ordinance is unquestionably valid. .Ex parte Sullivan,, supra, and authorities there cited.

That in the next attack on the ordinance he claims that, as a whole, it is unreasonable and clothes the city with arbitrary power to grant or refuse a license though the fees are paid and all the requirements thereof complied with by an applicant for a license.

This question was also discussed and passed upon in the Sullivan ■ease, supra. We see no necessity of further discussing it here. The attacked ordinance herein is in no essential particular different from the Fort 'ft’orth ordinance passed upon in the Sullivan case. The relator is not in a position to attack the ordinance on that ground anyway, for it is conclusively shown that he has in no way attempted to procure a license and been refused on any ground. However, we might say that, if even he was in a position to attack the ordinance on this ground, we see nothing in it but a reasonable and proper regulation, and we see nothing in it which would authorize or justify this court to hold the ordinance, or any provision of it, void on that ground.

His next attack on the ordinance is his claim that the difficulty of ■complying with its requirements practically amounts to a prohibition; and that the amount of the fees required to be complied with before ■the bond can be given and the terms and amount of the bond are requirements which can not be complied with.

The relator’s contention on this point can not be sustained. The whole agreed facts indicate that, if he is a proper person to operate a jitney under said ordinance, he may reasonably comply therewith, and that its provisions do not amount to a prohibition. The burden is on him to show what he claims and not on the State or city to show otherwise. In the agreed facts as a whole we think it is shown that he can reasonably comply therewith, and, hence, the ordinance is not void on this ground.

His last contention is that the arbitrary power preceding the issuance ■of license and the power reserved by the city to cancel it and throw him out of business at any time discourages the investment necessary to go into business and tends to, and does, prevent competition and results in building up a monopoly in behalf of the street car company.

We think it unnecessary to discuss this general attack of the ordinance. We see nothing in it that would sustain the relator’s contention. On the contrary, we see from it only the proper and reasonable regulation of the business and the proper requisites of persons only who should be authorized by the city to operate jitneys on its streets. It may be that some persons would experience some difficulty in eom- plying with the ordinance, but no more so than any other like hazardous and dangerous business.

We have carefully investigated this ordinance and the relator’s attack of it and the questions raised by him and reviewed the Sullivan case, supra, and the authorities therein cited, and have reached the conclusion that there is nothing in the ordinance herein attacked that would in auy way legally permit or authorize this court to hold it invalid. On the contrary, it is our opinion that the said ordinance, in the particular attacked wherein relator is in position to attack it, is valid and constitutional, under the agreed statement of facts on file.

It is, therefore, ordered that the relator be remanded to the custody of the city marshal.

Relator remanded to custody.