Ex Parte Sullivan , 77 Tex. Crim. 72 ( 1915 )

There are some questions which ought to be recognized as settled law with reference to municipal corporations: First, that such corporation is of legislative creation; second, that it can only exercise such authority as has been expressly conferred; third, that such authority must be within constitutional limitation; fourth, that its powers are subordinate to general legislation; fifth, that if there be a doubt of its right to exercise authority or power to act, that doubt must be resolved in favor of the grantor and against the grantee; sixth, that its acts and ordinances must be within the grant, and, seventh, its ordinances must be reasonable, fair and not discriminating. I regard these propositions as axiomatic and need no elaboration, discussion or citation of authorities. Within these rules the city may control its streets and regulate their use. It should be understood that a city and its granted powers are predicated upon the basic principle that they are to be used and exercised for the benefit of those who travel or use such streets, and this without discrimination. To this end and for this purpose these streets are laid out and kept in repair. It may be stated also as axiomatic that the citizen is not made for the street; the street is made for the citizen and his use. The city can not prohibit such use but may reasonably regulate it. That the city may regulate the use of the streets ought not to be questioned, but such regulation should be fair and reasonable. Autocratic power does not belong to nor inhere in our republican form of government either in the State, legislative department or municipal government. Citizens Savings Loan Assn. v. Topeka, 20 Wall., 655 (22 Law Ed., 455). All power is inherent in the people, not the government, and in delegating authority to the various departments of government our citizenship did not surrender their inherent power, and such as has been delegated may be recalled or modified by amendment to the Constitution, or by the ordination of a new Constitution. The diversification of this delegation of power has been so given as to prevent usurpation of power or embezzlement of authority. The Legislature is supreme in lawmaking and its authority can not be invaded nor delegated, and it is bounded by constitutional limitations. Cities are subordinate and must live within the limits of its grant or charter. Police power is but an incident to legislation. Whatever may be the necessity for its exercise, that necessity is limited by impassable barriers. Withdraw the legislative delegated authority and the police power passes with that withdrawal. The Legislature can not exceed or transfer its delegated authority any more than can the judiciary or executive. While these statements are general and may be regarded as legal platitudes in a sense, still it is well to have frequent recurrence to first principles, "lest we forget," and it may be absolutely necessary to do so that precedents may be kept within the reason of the law and the purpose of the written Constitution. It may be well also to restate that great truth, sometimes overlooked, that the government is made by man and for his benefit, and that man is not made by nor for the government. Recent history — legislative and judicial — does not seem to have kept these propositions well or strictly in hand or in memory. Police power, whatever may be the necessities, is operative only to subserve our citizenship, their rights and their interest. It can not be made an engine of oppression, nor used to destroy the rights of our people, nor can it be resorted to to paternalize our government. These rights are sacred whether in the State at large or within the confined limits of municipal corporations. Such authority should be confined to the regulation of matters appertaining to such corporation and the exigencies of such territory, and this only when the matters are not covered by the general law of the land. There are many things doubtless affecting the aggregation of people in cities which do not affect the people at large in the State. Under such circumstances cities should have sufficient police power for reasonable regulation. One of such matters is reasonable control of streets. This regulation should be exercised for the benefit of the citizenship of the city and those who use the streets for necessary purposes always attended by the fundamental rule that such use must be exercised so as not to injure the rights of others or the public rights. It occurs to me that the ordinance in question, viewed in the light of other ordinances mentioned in the statement of facts, is not only discriminating and unreasonable, but intended to be prohibitive, and its bond feature is not authorized, and, in my judgment, void. Illustrative of the above, an inspection of one ordinance discloses that all autos of every size and description are authorized to carry passengers throughout and all over the City of Fort Worth by paying a license of $3 per annum, and for this no bond or insurance policy is asked or required in the way of indemnity. Under the other ordinance an auto carrying five passengers must pay $10 per annum; if it carries seven passengers it must pay $20 per annum, and if above seven passengers it must pay $30. In addition to these matters these autos or jitneys are confined to specific or segregated lines and streets. Besides this, each auto or the licensee under the second ordinance must take out an insurance policy to protect such licensee from "legalliability," provided such policy can in no event redound to thebenefit of passengers carried in such auto. For this policy or indemnity contract the licensee must pay the exacted fee or premium demanded by the insurance companies. There may be no limit even set to the amount of the premium or fee to be paid. Otherwise the license can not be obtained as authority for running the jitney. The insurance company, no one else, can sign the contract. If it demands $500 as a premium or fee it must be paid, and this is made a prerequisite before the licensee can obtain the necessary license to operate his auto or jitney. Under one ordinance the auto or common carrier only pays $3 for the privilege of becoming a common carrier in the city limits for the space of one year. Under the other ordinance the auto, which we may call a jitney, pays from $10 to $30, besides the premium demanded by the insurance company. This looks to me to be sharply discriminating. It may be asked why this difference is made under the two ordinances. Can it be said that the passengers are less safe in one than in the other auto? If so, how or why? Can it be urged that the traveling public on the streets is less liable or more liable to damage from one of the autos than from the other? If so, how or why? It may be further asked if the public along the street is any more safeguarded by the exaction of from $10 to $30 than by the demand of $3. It occurs to me these ordinances can not be reconciled along reasonable lines. It is not clear to my mind why the indemnity contract or insurance policy is demanded under one ordinance and not under the other. It does not redound to the benefit of either the passengers in the car, for they expressly are excluded, or those traveling along the public streets, for the simple reason that by its terms the "legalliability" is limited to the licensee of the vehicle driven. Neither the passengers nor the public have any interest in the contract or policy. Nor is it clear to my mind how this indemnity policy executed in favor of the licensee could be any protection to anybody, unless it be the licensee. Before his legal liability could possibly arise that liability must be fixed in some way definitely upon the licensee, and if he were called upon to pay money in any way for damages or injury to people on the streets, he might possibly have a cause of action against the insurance company. This, if true, certainly would result in a multiplicity of suits to say the least of it, the end of which might be to defeat all rights even of the licensee. This indemnity contract is a matter exclusively between the jitney owner or licensee and the insurance company — made so on its face, without even specifying what is meant by the term "legal liability." It may be asked, does this term "legal liability" mean an indemnity of the licensee for what he may pay out for damages or cause to be made to pay out for damages, or is it protection against him from prosecution for injury of a criminal nature he may commit in running over or killing people on the streets? If it protects him against liability for his violation of criminal statutes, certainly it would hardly be maintainable against the insurance company. Indemnity of a party against his own criminal or tortuous act would hardly be a legal contract. But viewed in another light, this indemnity contract under the ordinance is and can only be a matter between the licensee and the insurance company, that is, it is a contract between third parties to which the city is not a party and is not and can not be made a party, and in which the municipal corporation as such has not and can have no interest. It could not change the relation of the third parties to each other by making a cause of action or defeating a cause of action or in lessening or enhancing the liability for acts between third parties. The public or the city has no interest in it. It is a matter between the licensee and the insurance company. There is ample authority, as I understand the law, based on sound principles, for the proposition that the city can not demand or require bond or contracts inuring to or operating only between third parties. This has been a matter of adjudication frequently. In support of the above proposition I cite Park Bros. v. Sykes, 67 Minn. 153; Breen v. Kelly, 45 Minn. 352; Philadelphia v. Madden, 23 Pa. Co. Ct., 39; Lyth v. Higston, 14 A.D. 1143 (N.Y. Sup., 643); Jefferson v. Asch, 53 Minn. 446. To the same effect is Taylor v. Dunn, 80 Tex. 652; House v. Houston Waterworks Co., 88 Tex. 233 [88 Tex. 233]; Galveston Ry. Co. v. Galveston, 90 Tex. 411 [90 Tex. 411]. Many other cases could be cited.

The further proposition, to my mind clear, is, that a city can in no event demand indemnity bonds except for municipal purposes and to protect city contracts, these contracts inuring to the benefit of the municipal corporation. As between third parties the city has no concern and can neither lessen nor aggravate any cause of action between the citizens of a municipality, nor can it create a cause of action between them. For this reason it seems to me the city ought to be powerless to demand of one citizen an indemnity contract in favor of another citizen. But if, in any event, this can be done, there should at least be expressly granted authority in the city charter for so doing. This has not been done to the City of Fort Worth. I do not care to further discuss this question, except to observe that the bond must be given with a corporation as surety, and such bond could not be signed by private persons as sureties, though the wealthiest in the State. This is additional discrimination and sufficient to nullify the ordinance.

Another question I mention briefly. The fees demanded are not, in my judgment, license fees. It is a tax pure and simple, and a tax of a graduated nature ranging from $10 to $30 according to the number of passengers carried in the car or auto. If it is a license fee in fact, or so intended, it should make the same equal alike to all autos without reference to the number of passengers carried. This was done under the ordinance which demands a $3 license fee. The fee, which is, in my judgment, a tax under the ordinance under which relator was arrested, is not fixed on or confined to the auto as such, but to the number of passengers the auto carries; not as a regulation of the jitney, but as a tax proportioned to the number of passengers carried. This is not only a tax, but it is one, in my judgment, entirely discriminatory on its face as well as in its operation. The city is not authorized to levy this character of tax, therefore in the ordinance it is denominated a license fee. Under the guise of a license fee a tax, and a graduated tax at that, is levied and demanded. A license fee must be commensurate with the expense of maintaining the regulations, and can not be used as a mere means of putting money into the treasury except for that purpose, and can not be used as a revenue measure.

There is another matter of constitutional law involved in this case to which I might refer; that is, where a constitutional right exists in favor of the citizen, the power does not exist in the State or Legislature to require the giving of a bond which materially abridges or entrammels the exercise of such constitutional right.

This rule is well recognized both in criminal and civil cases. In Callan v. Wilson, 127 U.S. 540 (32 Law. Ed., 223) Justice Harlan in an elaborate opinion, concurred in by the entire court, held the right of trial by jury could not be abridged by requiring an appeal to a higher trial court when an appeal bond would have to be given as a prerequisite to secure such jury trial. That case has not been overruled nor modified. Many cases were reviewed bearing on principles of constitutional law. Trial by jury is not a more sacred right than the right of the citizen to pursue any lawful calling or business, even the right to use the streets of a city. Subject to lawful police regulation, as above observed in this opinion, such a business or calling as carrying passengers in a carriage or auto through the streets, and the general use of the public streets by the auto or "jitney" are matters as much of constitutional right as that of trial by jury, and can no more be abridged than the trial by jury. Police regulations or power must always act uniformly upon all alike in the same situation and there can be no discrimination. There may be classification of subjects of police regulations where the classification arises from the nature of the subjects, and such subjects show a difference in the expense of maintaining reasonable police regulations; so, in this case there could be no different fees and regulations. However, such classification must be reasonable and just, and founded upon the nature of the subjects for classification. It can never be arbitrary, nor rest upon the mere will or caprice of the city, State or legislative authority. The discriminations in the ordinances here involved are not reasonable nor just, but on their face, when the subjects of the nature of the discriminations are considered, show they are illegal, arbitrary, and depend upon the mere will of the legislative branch of the city. It may be matter of doubt that an ordinary auto is more hazardous to the public than an ordinary two-horse carriage or similar vehicle. Certainly one of two autos of the same size, with same or even different seating capacity, is not more hazardous or dangerous to the public than the other, nor does it, strictly speaking, require more expense in regulation than the other. Yet none of these regulations apply to carriages in Fort Worth, and the discrimination between the autos of the same carrying capacity under one ordinance as against those under the other ordinance is purely arbitrary and exists without reason or justification, and only by the mere will of the ordinance making power. For all the above reasons the ordinance is void under the Fourteenth Amendment to the Federal Constitution, which provides that no person shall be deprived of life, liberty or property without due process of law or be denied equal protection of the law as well as under the provisions of the State Constitution and the Bill of Rights, which are to the same effect.

I have not discussed this ordinance in relation to other common carriers of the city, one of which is the street railway company, but I have said enough to convey some of the ideas I have for disagreeing with my brethren in upholding this ordinance. I, therefore, have reached the conclusion that the ordinance is unreasonable, is discriminatory, is intended to be prohibitive, and its bond feature is void, and that the alleged license fee is a tax and not a license. I can not, therefore, concur with my brethren in upholding this ordinance.