Page images
PDF
EPUB

Even

was a construction of the agreement under | charge does not assume that fact. which he signed and we think invaded the though Wheatley and Morris be considered province of the jury. His statement that he as principals, they had the right to sign the was a surety involved a legal conclusion note and deposit it with the payee, upon confrom the facts and circumstances surrounding dition that it should not become valid and the transaction. Connor v. Uvalde National binding until other principals had also signBank, 172 S. W. 175; McClung v. Watson, ed it. The charge is not subject to the criti165 S. W. 532; Sackville v. Storey, 149 S. W. cism. Merchants' National Bank v. Mc239. Anulty, 31 S. W. 1091; Parker v. Naylor, 151 S. W. 1103. This also disposes of the fourteenth assignment.

[8] Under the ninth and tenth assignments appellant complains of the admission of certain evidence from the defendant Wheatley, in which Wheatley objected to switching some of the collaterals to protect a note of $1,100. The evidence is as follows:

"The night before we decided to throw Lankford Furniture Company into bankruptcy there was a meeting of a bunch of us in the Lankford Furniture shop and we talked the matter over. We talked in regard to the collateral security of the $2,500 on the note. Mike (Le Master) said he would switch it to another note at the time, and I said, 'You won't do no such thing.' We talked about something else then, and Mr. Zimmerman brought the matter up, and said we ought to help the bank out, and Mike said he would switch the collateral security from that $2,500 note, and I spoke up and said he would do no such thing. I said, if the bank had to lose their amount, I will keep my part of the balance, whatever it is, and take care of our home people, and let the others suffer."

[9] In the thirteenth paragraph of the first supplemental petition appellant alleged that there was an agreement that the collateral should be divided between the $2,500 note and the $1,175 note, and we think this testimony was pertinent and admissible upon that issue. A material issue made by the pleadings was that the plaintiff had failed to account for certain collateral securities held by it as security for the indebtedness of the defendants, and defendants sought relief to the extent of the value thereof. This issue having been raised by defendants, the

burden of proof was upon them to show the value of the securities unaccounted for, and no evidence was introduced upon that point. [10] The fifth paragraph of the main charge authorized the jury to find for plaintiff, less the reasonable value of any such collaterals not accounted for. There being no evidence to support the issue, it should not have been submitted.

[11, 12] Complaint is made in the twelfth and thirteenth assignments of paragraph 3 of the court's charge, as follows:

"If you find and believe from a preponderance of the evidence that the note dated April 1, 1913, was executed by the defendants R. R. Wheatley and Frank Morris, Jr., on the condition and agreement that the same should not be delivered or become effective until H. C. Lankford Furniture Company and H. C. Lankford should sign the same as principals, and that the same was to be held until such condition was complied with, then in such event the said defendants would not

be liable upon said note, and you will, if you so find and believe, return your verdict in their favor upon this issue."

There is nothing in this charge which indicates that the court thought Wheatley and

The fifteenth assignment is disposed of by what we have said with reference to the first, fourth, and seventh assignments.

[13, 14] Under the sixteenth and eighteenth assignments appellant complains that the court refused to give two special charges with reference to the alleged failure of the plaintiff to exercise diligence in collecting the collateral securities. the defendants had given three separate notes. It appears that the defendants had given three separate notes for the debt in question-one dated July 25, 1912, which was renewed in a note dated November 1, 1912, and again renewed by note described in the original petition, dated April 1, 1913. We agree with appellant that, if for any reason defendants could escape liability on the note last signed, they might

nevertheless be liable on the note immediate

ly preceding it, and, if relieved from liability on that note, they could probably then be held on the first note executed. These special charges were intended to instruct the jury with reference to the rights of the plaintiff under each of the notes; but since the verdict was a general one, and we are not which note it was based, we cannot, of able to determine from the record upon course, decide whether or not the failure to give either of the charges was error. finding of the jury was based upon the note If the last executed, the failure to give the charge ond note we think the charges should have was harmless, but if upon the first or secbeen given. In the absence of any information upon this point, the presumption must

be in support of the judgment.

Appellant requested special charge No. 6, to the effect that the jury should disregard all evidence on the question of whether the bank had failed to collect and apply the the evidence was too general, and did not proceeds of certain collateral notes, because show with sufficient certainty any amount which the bank had failed to collect or apply, and because the evidence further failed to show what notes could have been collected by diligence and were not so collected. This charge was clearly upon the weight of the evidence and should not have been given.

[15] Appellant also requested the court to instruct the jury not to consider the capital stock of the Furniture Company, which had been put up as collateral, in making their verdict, because it had been admitted on the trial that $1,500 worth of it had been sold

vember 1, 1912, with full knowledge on the part of the makers that the stock had been sold and the proceeds not applied, but that other collaterals were substituted for the same and accepted by the defendant in lieu thereof. There seems to be some dispute in the record as to whether or not other collaterals had been substituted for the stock, in which event the charge would have been upon the weight of the evidence. Of course, if there was no dispute upon the question, the charge should have been given.

[16] Under the last assignment it is insisted that the verdict is contrary to the law and evidence, in that it was shown that Wheatley was bound by the note executed December 1, 1911, and was therefore without regard to any agreements thereafter made with reference to the renewal notes, liable upon the debt as originally created and that after allowing the credits, to which he may have been entitled, from the amounts collected on collateral notes, judgment should have been rendered against him in any event for the balance. If either of the renewals constituted a novation, then the note for which the renewal was substituted was no longer a binding obligation, and this is a question which should have been submitted to the jury. Rushing v. Bank, 162 S. W. 460; Heath v. First National Bank, 19 Tex. Civ. App. 63, 46 S. W. 123.

For the errors pointed out, the judgment is reversed, and the cause remanded.

empt. The test of the validity of laws directed against a class is that the same means and methods be applied impartially to all the members of the class, so that it shall operate equally and uniformly upon all.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 649-677; Dec. Dig. 208.]

TION.

4. LICENSES 7-MOTOR BUS-DISCRIMINAAn ordinance imposing an annual fee of $75 for the privilege of operating each of about 500 motor busses over its streets, not sufficient to pay the expenses of inspection, regulation, etc., subjecting the drivers to a rigorous physical and mechanical examination, regulating the number of passengers, requiring them to select a fixed route and operate thereon at least six parison with an ordinance imposing an annual hours a day, was not discriminatory, in comlicense fee of $10 on each of about 100 motor vehicles, known as "rent cars," allowed to stand upon the streets only at certain places and certain hours, not operated over fixed routes, and charging a greater fare, regulated by the city, since they were engaged in different classes of street traffic.

Cent. Dig. §§ 7-15, 19; Dec. Dig. 7.] [Ed. Note.-For other cases, see Licenses,

5. CONSTITUTIONAL LAW 88 PERSONAL RIGHTS-LIBERTY-BUSINESS OR VOCATION.

An ordinance for the regulation of motor busses, providing that a bus should be operated along the termini designated by the operator for at least six consecutive hours a day, such operation to be in accordance with the terms of the ordinance, and making it unlawful to operate any motor bus on any other street or route than that designated in its license certificate, was not in derogation of the citizen's right to engage in any lawful pursuit of busi

ness.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 164, 165; Dec. Dig. 88.]

BOOTH et al. v. CITY OF DALLAS et al. 6. MUNICIPAL CORPORATIONS 591-POLICE POWERS - DELEGATION MINISTERIAL DUTIES.

(No. 7493.)

(Court of Civil Appeals of Texas. Dallas. July 3, 1915. Rehearing Denied Oct. 16, 1915.)

1. LICENSES 52-POWER OF CITY-CHARTER-MOTOR BUS.

The city of Dallas, under its charter power to license and regulate enumerated occupations, and all other occupations which, in the opinion of the board of commissioners, should be the proper subject of police regulation, and to regulate the use of automobiles or any motor vehicles and the use of its streets, could fix an annual license tax of $75 for the privilege of operating a motor bus over its streets.

[Ed. Note.-For other cases, see Licenses, Dec. Dig. 52.]

2. LICENSES 1-MOTOR BUS-REASONABLE LICENSE OR TAX.

An annual license fee of $75, fixed by ordinance for the privilege of operating a motor bus in the streets of a city, where the cost of inspection and regulation would be in excess of the amount realized from the fees, was a reasonable fee based on the cost of regulation, and not objectionable as a tax.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. § 1; Dec. Dig. 1.]

3. CONSTITUTIONAL LAW 208-EQUAL PROTECTION OF LAWS-DISCRIMINATION.

A provision of an ordinance for licensing and regulating motor busses, that the operator of each bus should submit it to the city automobile inspector once every week, that if the inspector found it safe he should issue a certificate permitting its operation for one week, that if unsafe he should refuse such certificate, and making its operation without the inspector's certificate displayed thereon a penal offense, was not objectionable as an attempt on the part of the city to delegate the police power intrusted to it by the state.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1310; Dec. Dig. 591.]

7. LICENSES 29-REGULATION OF MOTOR BUSSES-CHARGE FOR LICENSE.

A city, having the right to charge a license fee reasonably commensurate with the cost of regulating motor busses, had the further right to make a charge of $1 for any additional expenses resulting from the loss of the original certificate, or a change of route or of seating capacity.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. § 63; Dec. Dig. 29.]

Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.

Class legislation, affecting a particular Action for injunction by C. C. Booth and class, is not unenforceable for that reason others against the City of Dallas and others. alone, since the Legislature has the right to classify persons or subjects for taxation or reg- From the dissolution of a temporary injunculation, which right includes the right to ex-tion, plaintiffs appeal. Affirmed.

McCutcheon & Church and L. R. Callaway,, upon between the operator and those seekall of Dallas, for appellants. C. F. O'Don- ing such service. The operators of these nell and G. C. Adams, both of Dallas, for appellees.

RASBURY, J. This is an appeal from the action of the judge of the Sixty-Eighth district court in dissolving a prior temporary injunction. The action of the court as disclosed by the record was based upon substantially the following matters:

vehicles averaged a gross income of $5.70 per day, with an average expense of $3 per day, leaving approximately a net income of $2.70 per day. Included in such earnings was whatever amount was secured from the special journeys above referred to, and for which special journeys the operators, as a rule, received greater compensation than they did for running over the fixed route. Prior to the commencement of this suit Those operators who testified at the trial appellee the city of Dallas in the manner gave it as their opinion, based upon their provided by its charter enacted an ordinance experience in the business, that a license fee defining a motor bus, imposing a license for of $10 was sufficient, and that the number the privilege of operating same, regulating of vehicles engaged in the business could its use, declaring the unrestricted use there- not successfully operate without being perof a nuisance, penalizing same, and declar-mitted to divert from their fixed route and ing an emergency. A motor bus by the or- make special journeys here or there, as dedinance is declared to be: manded by the public.

"Any automobile, automobile truck or trackThe evidence adduced by appellees tended less motor vehicle engaged in the business of to show that the operators of the vehicles decarrying passengers for hire within the city limits, *** held out or announced by sign, fined by the ordinance have greatly congestvoice, writing, device or advertisement to op-ed the city's streets with traffic in the downerate or run, or which is intended to be operated or run, over any particular street or route or to any particular or designated point or between particular points or to or within any designated territory, district or zone."

The ordinance also contains many other provisions, but only those, together with relevant collateral provisions, deemed necessary to a discussion of the issues presented on appeal will be detailed, and those so necessary will be related while discussing the particular issue to which they relate. After the several successive steps necessary for the legal enactment of the ordinance had been observed, and after same had been published in the official organ of the appellee city one of the three required times, appellants, Booth, Cochran, Birthright, and Smith, for themselves and approximately 500 others similarly situated, filed this suit against appellees, the city of Dallas and its commissioners, for the purpose of having said ordinance declared void and unenforceable, and sought pendente lite a temporary injunction restraining appellees from in any manner enforcing same. Upon ex parte hearing temporary injunction was granted, and appellees cited to appear subsequently and show cause why the temporary injunction should not be continued in force pending trial. At the time set there was a hearing, and the temporary injunction was dissolved.

town sections. Since the operation of such vehicles there have been numerous accidents in which such vehicles were concerned, and as a consequence of which persons have been injured and property damaged and destroyed. Many of the vehicles are old and worn. The operators run irregularly over their selected routes, and do not go to the limit thereof, but return as soon as they secure enough passengers to fill the car, taking them on at any point. Many of the vehicles are operated at a rapid and dangerous speed. Many of them transport passengers in double the number of their rated capacity, and after filling the body of the car they permit them to stand upon the running board. It was also shown that the cost of enforcing the regulatory provisions of the ordinance, including supervision, inspection, and police surveillance, would be in excess of the amount which could be realized from the license fee and other charges provided for in the ordinance.

It was further shown that there are in operation in the city of Dallas 75 or 100 motor vehicles designated by ordinance as "rent cars." There are two ordinances that regulate the right to operate these rent cars. Such regulations, material to the issues presented on appeal, are that such cars are required to pay a license fee of $10 per annum The evidence adduced by appellants on the and may stand upon the streets only at cerhearing tended to show that there was at tain places at given hours. The evidence that time 400 or 500 vehicles as defined by further shows that such cars do not operate the ordinance being operated upon the over fixed routes, but stand at the places on streets of the city of Dallas, either by the the city streets fixed by ordinances or in owners or those who rented same, engaged garages from whence they are called by in transporting passengers for hire from those desiring their services. These vehipoint to point in the city for a fare of 5 cents per passenger. Those so engaged had a fixed route or termini, but would divert therefrom and make special journeys to any

cles charge a much greater fare for their services than the motor bus, such charges being regulated by the city.

[1] We will consider first the attack on

* * * 99

fixes an annual license fee of $75 for the [2] It is next urged that the license fee is privilege of operating a motor bus over the unreasonable and arbitrary, because in fact streets of the city. This charge is declared a tax, though denominated a license fee, in to be void for many reasons; the first in order to cloak and conceal its real purpose. natural order being the claim that the city's If the conclusions stated in the proposition charter did not authorize same. By article were supported by or fairly deducible from 2, section 3, subdivision 24, of its charter, the evidence, it would present a serious isthe city has authority, among other things, sue. There is, however, in the record no evito license and regulate, in addition to the dence that tends to support the contention. businesses and occupations therein enumerat- We have said at another place that appeled, "all other business or occupations what- lant's testimony tended to show that they ever, which in the opinion of the board of could not pay the tax and profitably operate commissioners shall be the proper subject the motor bus. Incidentally such fact might of police regulation." By subdivision 33 of result from many causes, conceivably comthe same article and section authority is petition or a fare out of proportion to the conferred upon the city "to regulate the use cost of operation, but which would in no reof automobiles, motor cars, motorcycles, or spect lessen the expense of regulation, or any motor vehicles. By sub- make regulation any the less necessary. We division 4 of section 7 of the same article have also said at another place that the evithere is conferred upon the city, in addition dence of appellees tends to show that the to certain enumerated things, the further cost of supervision, inspection, and police right "to regulate the use" of its streets. surveillance would be in excess of the amount These provisions are specific grants by the realized from the fee prescribed. No one state of its police power, intrusted to the city for its exercise and enforcement. From these seems to challenge the necessity of regulation grants it is clear that the city has complete details of the evidence from which such conon any of the many authorized grounds. The dominion over the entire subject in contro-clusion is deduced, and the truth of which versy in this suit, since it has the right to is not challenged, reveals that it is based upregulate every conceivable kind of motor vehicle, the right to control and regulate the use of its streets by such vehicles, and the right to license and regulate all occupations. So broad and comprehensive are the specific grants that the right of the city to fix a license fee against those operating the motor bus is not dependent upon the quoted grants as a whole, but, in our opinion, can be sustained by authority of any one thereof. The right to regulate the use of the city's streets, or the right to regulate the use of all vehicles upon the city's streets, is broad enough to authorize both the regulation of the motor bus and the imposition of a fee for the privilege of such use. We said as much in Southwestern Tel. & Tel. Co. v. City of Dallas, 174 S. W. 636. That the city would have the right to fix the license fee under the express provision permitting it to license and regulate every conceivable business or occupation seems too clear for discussion. The charter grants that much authority, the Constitution does not forbid it, and the operating of a motor bus is an occupation or business. Further, the right to prescribe a license in such cases is not an open question in this jurisdiction, but has been repeatedly sustained in cases enacted under charter provisions no broader than those contained in the grant to the city of Dallas. We therefore feel that a discussion of the reasons for the rule and its applicability in the instant case is unnecessary, since in the cases presently cited those matters are fully discussed and many other authorities cited. Ex parte Gregory, 20 Tex. App. 210, 54 Am. Rep. 516; Kissinger v. Hay, 52 Tex. Civ. App. 295, 113 S. W. 1005; Ex parte Denney, 59 Tex. Cr. R. 579, 129 S.

.

on the increased number of officers necessary to be employed as a result of so large an additional number of public vehicles upon the streets and the purchase of additional motorcycles to be used in that connection. This evidence shows that the sum charged is reasonable, in view of the added expense, and no testimony challenging same was offered by appellees. The unchallenged testimony being as stated, it results that the license fee is not in truth a tax, but purely a charge based upon the cost of regulation. Ex parte Gregory, supra; Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 488.

[3, 4] The next issue presented is the familiar and necessarily oft-recurring claim that the ordinance is discriminatory, in that all persons subject to its provisions are not treated alike under like circumstances, and hence denies to appellant that equal protection of the law guaranteed alike by our state and national Constitutions. In the recent case of Southwestern Tel. & Tel. Co. v. City of Dallas, supra, we stated that the general rule, gathered from the decisions of the appellate courts of this state, those of the Supreme Court of the United States, the courts of the other states of the Union, and the text-writers, which were cited, is that "class legislation or laws that affect a particular class are not unenforceable for that reason alone," since "the right of the Legislature to classify persons, corporations, or subjects for taxation, regulation, or restriction in the broadest sense is not an open question under either our state or national Constitution, and the right to classify includes the right to exempt, as does the right to exempt include

controlling test of the validity of all laws | motor bus has no fixed stand, but is condirected against a particular class may be said to be that the same means and methods shall be impartially applied to all the constituents of the particular class, so that the law shall operate equally and uniformly upon all persons in the class sought to be regulated. If appellants are constituents of the class defined by the ordinance attacked, and others in the same class are exempt from its provisions, they have just cause for complaint.

Appellants maintain that such condition is shown in the treatment accorded them and that accorded those engaged in the rent car business, since there is a difference in the regulatory measures as applied to rent cars and those applied to the motor bus. The facts do disclose that the regulations applicable to rent cars, which are covered by another and prior ordinance, the essential provisions of which have been herein noted, and those applicable to the motor bus, are dissimilar in many and important respects. Some of the salient differences are that the rent car is required to pay a license fee of $10, while the motor bus pays $75. The rent car operator is not subjected to the same rigorous physical and mechanical examination touching his qualifications to operate his vehicle that the motor bus operator is. The number of passengers that may be carried by the motor bus is regulated, but not so with the rent car. The motor bus is required to select a fixed route or termini and traverse the same for not less than six hours per day, while the rent car is permitted to go from its garage or stand to any point in the city over any route chosen. These radical and important differences in the regulatory provisions between the motor bus and the rent car are noted, not because in our opinion they establish discrimination, but for the purpose of emphasizing the fact that the regulatory provisions of any ordinance are without significance whatever in determining whether all the constituents of the defined class are legislated against equally and uniformly; for if rent cars and the motor bus do not engage in like street traffic they are not as matter of fact in the same class, and if not in the same class a difference in regulations as applied to distinct classes is immaterial. Thus the true inquiry is not, is there a difference in the manner of regulating rent cars and the motor bus, but is the rent car and the motor bus, as defined by the respective ordinances, engaged in similar or dissimilar street traffic? This is, of course, a question of fact to be determined from the evidence contained in the record.

tinually in motion upon a fixed route upon
the streets of the city, soliciting and halting
to accept business at any place where the
passenger is found, and upon some of the
fixed routes there are as many as 100 buses.
As related to the same question, rent cars do
not transact their traffic in such manner, but
are located either at garages or stands upon
certain streets between hours fixed by ordi-
nance, whence they are called by the public
when their services are needed. Thus the
mere statement of the manner and method of
the traffic in which the respective vehicles
are engaged demonstrates that each is pur-
suing a different class of business, so radi-
cally dissimilar in fact as to leave no room
for fair dispute or disagreement.
lants being then in a class entirely dissimilar
from that of those who operate rent cars,
it is immaterial that the regulations are dis-
similar. Dissimilar regulations of dissimilar
occupations cannot, of course, serve as a
basis or support in law for holding the one
or the other discriminatory, since dissimilar
methods of regulating similar classes are, un-
der the rule cited, the test of discrimination.

Appel

[5] The constitutionality of section 9 is also attacked. This section provides that the motor bus shall be operated along the termini designated by the operator, save in certain excepted cases not material here, and for any portion or all of the day, at option of operator (but must by section 2 be operated for at least six consecutive hours), and concludes with the provision:

"But such operation shall be at all times in accordance with the terms of this ordinance, bus as a public conveyance at any place or on and it shall be unlawful to operate such motor any street other than along the route designated in the license certificate."

The concluding provision just quoted is vigorously attacked as being in derogation of appellant's common right to pursue any other lawful occupation than that of operating a motor bus. We do not construe the quoted portion of section 9 as does able counsel for appellants. The ordinance of which section 9 is a part does not, in our opinion, expressly or impliedly undertake to interfere with the free and undeniable right of the citizen to engage in any other lawful pursuit or business for which he may qualify, but undertakes to regulate solely those who may wish to engage in the operation of a motor bus as therein defined. The language contained in section 9 should and will be construed in the light of the purpose sought by the ordinance. So regarded, it is clear to us that the provision that it "shall be unlawful to operate such motor bus as a public conveyance at any place or on any The record of the evidence beyond contro- street other than along the route designatversy discloses great dissimilarity in the ed," means necessarily no more than that business pursued by the two classes of ve- the citizen who desires to engage in the hicles. As affecting street traffic and con- business defined by the ordinance shall, gestion thereof there are in operation 500 while engaged in that business, be confined

« EelmineJätka »