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

Relator seeks release by an original writ of habeas corpus sued out in this court upon propositions which are discussed later.

The city of San Antonio, Texas, has a population of more than 5,000, is incorporated and operating under section 5, article 11, of our Constitution, which is known as the Home Rule Amendment. An ordinance of said city requires that all automobiles carrying passengers for hire on the streets of said city must obtain a license, pay a license fee and make bond in writing as a prerequisite to engaging in such business. Relator in this case was charged in corporation court of said city with operating such vehicle without having made bond. Upon conviction he appealed to the county court at law No. 2 of Bexar county, where upon trial he was again convicted and his punishment fixed at a fine of $10. Affirming the illegality of the ordinance in question, and that he could appeal no further because his fine was less than $100, relator seeks through a writ of habeas corpus release from custody of an officer of the trial court who holds him under a capias profine until said fine and costs be paid.

The attack on the complaint charging relator with operating a car for hire on the streets of San Antonio without having first made the bond required by the ordinance mentioned, — is based on the following propositions and facts, viz: That the courts have held that no license fee could be legally collected by municipal authorities from persons operating for hire motor vehicles on the streets of incorporated cities; that in the ordinance referred to, the requirement that a license fee be paid and bond be made, — is joint and so commingled and interdependent as that if the one be illegal the other must of necessity also fall; that the conditions of the bond required by the ordinance are unreasonable; that the ordinance is discriminatory, and the terms of the bond required so difficult of compliance as to be confiscatory.

We may say in the beginning that our discussion will necessarily be of the legal questions presented, no facts by agreement or otherwise being before us. There appears a document in the nature of a statement of facts which does not bear the approval of any one.

Examining in reverse order the propositions advanced by relator, we note that the only authority cited in his brief as sustaining his last mentioned contention is City of Arlington v. Lillard, 294 S.W. 829. In its facts and principles involved that case is wholly unlike the one before us. The issue there was the power of a city to deny the right to use its streets to motor busses engaged wholly in inter-city passenger traffic on a highway extending to, through and from said city, which busses declined intra-city passengers from one point to another in said city. The street whose use was forbidden by the ordinance was admittedly a part of a state highway over which said motor busses were engaged in carrying passengers for hire as a business. The Supreme Court of this state held the city without power to deny the use of said streets to said motor busses. We agree to the correctness of this holding.

What rights of relator are contravened by requiring of him a substantial bond. In West et al. v. City of Waco et al.,275 S.W. 282, — affirmed by the Supreme Court in 116 Tex. 472,294 S.W. 832, — it is in substance declared that no person has any vested right to maintain or claim a public street as a place of business, and that if the city be denied the right to control and regulate the use of its public streets in such regard, such streets would be at the mercy of all who desired to ply any business or trade thereon, and the city would be thus deprived of one of its most valued functions, viz: to protect the inhabitants from such encroachments. In Gill v. City of Dallas, 209 S.W. 209, in a lucid opinion by Judge Rasbury of the Court of Civil Appeals, the lack of right to use the public streets as a place of business by individuals operating public utilities is affirmed and discussed. It is said therein that a sufficient number of public utilities is a great convenience, but that too many of same might be equally as inconvenient, the question being one for the local authorities to determine. The mere fact, if it be a fact, that the ordinance of a city fixes the amount of bond prerequisite to engaging in a public or quasi public business at such sum as that named persons who have sought to engage therein could not pay the cost of a surety company bond for that amount, does not bring us to any fair conclusion that such bond is therefore necessarily excessive. Inordinate competition or inadequate facilities on the part of such persons, as well as many other considerations, might rightly affect their income without affecting the justice of the ordinance or the amount of the bond demanded. We do not think the ordinance in question on its face discriminatory, or that its effect would be to confiscate the property of any citizen.

We see no need for discussing at any length the right of the city of San Antonio to require a bond from those who seek to engage within said city in the business of carrying passengers for hire. The purpose of the bond is manifestly the protection of the people in and of such city from harm and injuries resulting from the acts of those thus authorized by the city to use its domain and streets as a source of gain. The subject has been treated in many cases and settled adversely to relator. Taylor v. Dunn, 80 Tex. 652; Nelson Co. v. Stephenson,168 S.W. 61; Greene v. City of San Antonio, 178 S.W. 6. Other authorities are numerous.

We pretermit extended discussion of the proposition that the decision in Doepenschmidt v. The City of New Braunfels,289 S.W. 425, supports relator's contention. We do not think so, but any expression from us that said opinion incorrectly interprets the legislative denial in article 6698, Texas Civ. Statute, of a grant of authority in that particular act, — into a general denial of such power and authority claimed to be derived from other sources, — would be dicta, and this usually leads only to confusion.

Believing that there is no question of the power and right of the city to require of relator the bond mentioned, and that his failure to give same and his subsequent operation of his car for passenger hire on the streets of San Antonio brought him in conflict with the provisions of said ordinance, it follows that we believe the writ of habeas corpus should be denied, and it is accordingly so ordered.

Denied.

ON MOTION FOR REHEARING.