Auto Transit Co. v. City of Ft. Worth

• Decision Date: 20 November 1915
• Docket Number: (No. 8304.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 182 S.W. 685
• Parties: AUTO TRANSIT CO. et al. v. CITY OF FT. WORTH et al.
• Court: Texas Court of Appeals

182 S.W. 685

AUTO TRANSIT CO. et al. v. CITY OF FT. WORTH et al.

(No. 8304.)^*

Court of Civil Appeals of Texas. Ft. Worth.

November 20, 1915.

On Motion for Rehearing, January 15, 1916.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Suit by the Auto Transit Company and others against the City of Ft. Worth and others. From an order refusing to continue a temporary injunction, plaintiffs appeal. Affirmed.

Ike A. Wynn, of Ft. Worth, for appellants. T. A. Altman, of Ft. Worth, for appellees.

BUCK, J.

This was a proceeding by the Auto Transit Company, a corporation domiciled in Ft. Worth, Tarrant county, Tex., and J. C. Walton, a resident of said county, professedly on behalf of themselves and 60 other "motor bus" or "jitney" owners and operators against the city of Ft. Worth, represented by its mayor and four commissioners, seeking to enjoin the enforcement of Ordinance No. 448, and as amended by. Ordinance No. 470, theretofore passed by the said board of commissioners, regulating the operation of said motor busses, or "jitneys," in common parlance, on the streets of said city. Both ordinances were attached to and made a part of the petition. Petitioners alleged that they, and those for whom they sued, had complied with Ordinance No. 448 when it became effective, and had since been operating thereunder. Petitioners also alleged that Ordinance No. 442, theretofore passed by the city of Ft. Worth, provided that every owner of a motor-driven vehicle should register the same and pay a license number tax to the assessor and collector of $1 per car, and that they, and those for whom they sued, had complied with the said ordinance also. It was further alleged that the Auto Transit company owned and operated 32 motor busses, and had invested in its cars about $17,500, and the plaintiff Walton about $500. Others for whom suit was brought were also alleged to have invested approximately the sum of $500 each; and it was averred that the effect of Ordinance No. 470 would be to drive the motor bus or "jitney" out of competition with the street railway company operating in Ft. Worth, and to give a monopoly to said street railway company of the transportation of passengers within said city; that the city of Ft. Worth embraces about 17½ square miles, and has a population of about 100,000; that it has many miles of streets which are traversed by the street cars, and by far the greater portion of its inhabitants do not live adjacent to street car lines, and that the "jitney" has been for some time a necessary public conveyance and utility, and is an economical and efficient development of local transportation necessary for the convenience and welfare of the great majority of the inhabitants of said city; that there are now in operation in said city about 150 "jitneys," which carry many thousands of passengers each day. It was further alleged that petitioners were unable to comply with the provisions of Ordinance No. 470 requiring a bond in the sum of $2,500, payable to the mayor of the city of Ft. Worth, and executed by the person in whose name the license is sought as principal, and a solvent surety corporation, incorporated under the laws of the state of Texas, or with permit to do business in this state, conditioned that the principal shall pay all legal damages for injuries to property or person of any one, including injuries resulting in death on account of the negligence or willful act of the owner or operator of such motor bus, etc., inasmuch as the fee for said bond was unreasonable and even prohibitory, such companies charging from $200 to $250 for each said bond executed. Further allegations were made as to the terms, requirements, and conditions of said Ordinance No. 470 with reference to the operation of motor busses or "jitneys," as contained in subdivision "g" of section 5 of said ordinance, which petitioners alleged were discriminatory, and constituted an unnecessary and unreasonable regulation beyond the police power of the city, and violated the Constitutions of the United States and the state of Texas. It was further alleged that, inasmuch as it is practically impossible for petitioners to comply with the provisions of said ordinance, they would be greatly injured in their property and property rights, and would be deprived of the privileges and immunities guaranteed to them by the laws of the land, if such ordinance should be enforced, and that the city of Ft. Worth, through its said board of commissioners, was threatening and attempting to enforce said ordinance, and that, unless it was restrained, it would subject plaintiffs, their agents and employés, and those in whose behalf they brought suit, in case they did not comply with the provisions of said ordinance, which compliance was alleged to be impossible, to innumerable arrests and prosecutions and much vexation, harassment, and oppression.

Accompanying, and in support of, said petition was an affidavit of E. M. Rogers, president of the Auto Transit Company, to the effect that said company had been incorporated for the purpose of owning, maintaining, and operating automobiles and other vehicles designed for the purpose of carrying passengers, freight, express, and mail in the city of Ft. Worth; that said company had paid its franchise tax for 1915; that the "jitneys" or "motor busses" in the city of Ft. Worth numbered about 150, and carried approximately 30,000 passengers each day for a five-cent fare; that there were a great many "taxicabs" and "rent cars" operating in Ft. Worth, and said "rent cars" were five-passenger Ford automobiles, and practically identical with those operated by plaintiffs, and such cars were operated over the streets in the same manner as plaintiffs' "jitneys," with the same attendant risks and dangers; that said taxicabs and rent cars charged many times as much for carrying a passenger as plaintiffs charged; that the Northern Texas Traction Company is a private corporation operating street cars over certain streets in the city of Ft. Worth for a fare of five cents; that an automobile is not a dangerous machine, or an unsafe means of conveyance, and that a careless or reckless driver makes the operation of an automobile just as hazardous when he is operating a "private car" or "rent car" as when he is driving a "jitney" or "motor bus"; that the "jitneys" constituted a great convenience to the inhabitants of the city of Ft. Worth, many of whom choosing and preferring this mode of travel. Affiant further averred the compliance by his company with the provisions of Ordinances Nos. 442 and 448, and the payment by it of various sums of money for registration of license fees and the purchase of indemnity contracts, as provided by said ordinances, that it was impossible to make personal bonds, as provided in the alternative in Ordinance No. 470, and was wholly impossible to comply with the provisions requiring bonds by surety companies, and that it would cost said plaintiff company $6,600 to procure the bonds executed by a surety company.

Also there were affidavits from E. W. Scott and Adams B. Vera containing practically the same averments. Also an affidavit signed by some 11 persons alleged to be citizens of Ft. Worth, to the effect that the Northern Texas Traction Company owns and operates a street railway system in the city of Ft. Worth, and has about 77 miles of trackage. and runs about 200 cars over the streets of said city, and that there are about 100 other carriers of passengers for hire in the way of taxicabs, omnibuses, etc., running over said streets, and that none of these mentioned carriers are required to carry passenger insurance as provided in said ordinances applicable to the "jitneys."

A temporary restraining order was granted by the trial court, and upon hearing on June 26, 1915, the court declined to continue said temporary injunction, which expired on the day of hearing, and denied plaintiffs' prayer so to do, to which order of the court the plaintiffs excepted and gave notice of appeal.

Plaintiffs have not filed in this court briefs containing formal assignments of error, and under the law they are not required to do so (Holbein v. De La Garza, 126 S. W. 42; F. W. & D. C. Ry. v. Craig, 176 S. W. 827), but have contented themselves with filing a memorandum of authorities. But we have had the benefit of an able and exhaustive brief furnished by appellee.

On the threshold of the consideration of his cause we are met with two questions affecting the jurisdiction of this court, to wit: First, whether an injunction will lie to restrain the enforcement of a criminal statute or ordinance; and, second, even though it be admitted that in certain instances such relief may be granted, may the authority to grant such relief be exercised by a court of exclusive civil jurisdiction, or has the authority been delegated to courts exercising criminal jurisdiction?

First. As has been often said, it is a general rule that an injunction will not be granted to stay criminal proceedings, but, as we understand the authorities, this does not mean that an injunction will not lie to prevent prosecution under a criminal ordinance, or to prevent the threatened enforcement of such criminal ordinance, where the validity of the ordinance is involved. It seems clear from the authorities that in the latter case an injunction will be granted to avoid a multiplicity of suits, to avoid irreparable injury, and that there is no adequate remedy at law where repeated prosecutions will seriously impair or destroy property rights. A court of equity may entertain jurisdiction of a suit to enjoin the enforcement of an alleged invalid statute, for the absence of lawful power to impose the restrictions of the statute may result in irreparable loss to the party concerned; for "jurisdiction" is the power to consider and decide one way or the other, as the law may require. Nolen v. Reichman (D. C.) 225...