Ex Parte Wilmoth ( 1933 )

Appellant was convicted in the corporation court of the City of San Antonio for violating a city ordinance, and a fine of twenty-five dollars assessed. Under a capias pro fine he was taken into custody by the chief of police of the City of San Antonio. After a hearing on a writ of habeas corpus, the district court remanded him to custody. Hence this appeal.

The validity of an ordinance of the City of San Antonio is involved, appellant having been convicted of operating an automobile for hire without having first installed therein a taximeter. The specific section appellant assails reads as follows:

"Section B-6. No such automobile for hire shall be permitted to operate on the streets of the City of San Antonio unless the same shall have attached thereto a taximeter of standard size and design, to be approved by the Chief of Police, who shall approve the same provided it meet the requirements of sub-divisions (a), (b), (c), (d) and (e) of Section B-6 of this ordinance.

"(a) No permit shall be issued for the operation of such automobile until the taximeter attached thereto shall have been inspected by or under the direction of the Chief of Police, and shall have been found to be accurate.

"(b) No such taximeter shall be operated except from the transmission of said automobile.

"(c) No person shall use, or permit to be used, upon any such automobile owned and operated by him for hire, as provided for in this ordinance, a taximeter which shall be in such a condition as to be over five percent incorrect.

"(d) No taximeter shall be used between sunset and sunrise unless the face thereof shall be illuminated by a suitable light so arranged as to throw a continuous light thereon.

"(e) No person shall use, or permit to be used, or drive for hire, a vehicle equipped with a taximeter, the case of which does not have its cover and gear intact, and which has not been first properly sealed under the direction of the Chief of Police, nor shall such vehicle be operated should said seal be broken until said taximeter has again been inspected by the Chief of Police and then re-sealed by him, and the same shall not be re-sealed and put back into operation unless the same shall meet the requirements of this ordinance.

"(f) No driver of such automobile for hire, equipped with a taximeter or other similar device, while carrying passengers or under employment, shall display the signal affixed to such taximeter or other similar device in such position as to denote that such vehicle is not employed, or in such position as to denote that it is employed at a rate of fare different from that to which he is entitled under the provisions of this ordinance."

Appellant asserts that the quoted section of the ordinance is unconstitutional, his position being that under the terms of the ordinance the power to prescribe the size and design of the taximeter required to be installed has been delegated to the chief of police. Looking to the ordinance, it is clear that the size and design of the taximeter is not disclosed. It is true that certain requisites are set forth in the ordinance, but these do not aid in arriving at a determination of the type of meter to be installed. The power to determine the matter is delegated to the chief of police. Not only might he arbitrarily reject a meter, but the applicant is furnished no means of knowing whether or not the meter with which he equips his car will be acceptable to him until he has installed it and makes his application. Instead of being able to know from an examination of the ordinance what size and design meter is required, the operator of an automobile for hire who wishes not to offend would be compelled to receive his information from the specifications provided by the chief of police. If the ordinance should be upheld, it is clear that the size and design of the taximeter might be changed at the will, wish or whim of the chief of police.

Section 28, article 1, of the Constitution of Texas, forbids the delegation of lawmaking power by the Legislature. See Dockery v. State, 247 S.W. 508. In Ex parte Maynard,101 Tex. Crim. 256, this court, speaking through Judge Lattimore, used language as follows: "There seems a plain distinction between the case here made and each and all those cited in the lengthy and able motion for rehearing, which distinction is based on the well-settled rule that the power to make laws which, by their terms, become and are effective or not at the pleasure of individuals or corporations, does not exist in the Legislature, and cannot be asserted by a municipality created under legislative authority."

In Ex parte Bell, 22 S.W. 1040, this court held that an offense denounced by either statute or ordinance must be plainly written to be effective. In other words, a completed law, if penal in its effect, must define the act or omission denounced as criminal with some degree of certainty. Ex parte Leslie, 223 S.W. 227.

The statement of the case appears to make self-evident the proposition that the section of the ordinance under discussion attempts to delegate to the chief of police lawmaking power. This being the case, such section is obnoxious to the constitutional requirements, and, in conformity with the announcement of the decisions, must be held invalid. Dockery v. State, supra, and authorities cited; Ex parte Leslie, supra, and authorities cited; Ex parte Bell, supra.

The judgment is reversed and appellant ordered released from custody.

Reversed and appellant ordered released.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON STATE'S MOTION FOR REHEARING.