Box v. Newsom

• Decision Date: 07 November 1931
• Docket Number: No. 1205.,1205.
• Citation: 43 S.W.2d 981
• Parties: BOX et al. v. NEWSOM et al.
• Court: Texas Court of Appeals

43 S.W.2d 981

BOX et al. v. NEWSOM et al.

No. 1205.

Court of Civil Appeals of Texas. Waco.

November 7, 1931.

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

Suit by C. D. Newsom and others against V. C. Box, and others. From decree for plaintiffs, the defendant, Box, appeals.

Reversed and injunction dissolved.

C. S. Bradley, of Groesbeck, for appellant.

B. D. Shepperd, of Groesbeck, for appellees.

PER CURIAM.

C. D. Newsom and twenty others filed this suit against V. C. Box, sheriff of Robertson county, and J. E. Anglin, a constable of Limestone county, and all peace officers of the state of Texas, seeking by injunction to restrain the defendants from arresting or attempting to arrest the plaintiffs for operating their automobile trucks on the highways of the state without a permit from the railroad commission contrary to chapter 277 of the General Laws enacted by the Legislature at its Regular Session in 1931 (Vernon's Ann. Civ. St. art. 911b, § 1 et seq.). Said act provides for control and regulation by the railroad commission of motor-propelled vehicles used in transporting property for compensation or hire over the public highways of this state. The trial court in chambers upon the plaintiffs' petition granted a temporary injunction restraining the named defendants and all other peace officers of the state from arresting or attempting to arrest the plaintiffs, or either of them, or in any manner interfering with them for any alleged violation of said act. The defendant Box alone appealed.

The law in question makes it an offense for any person to operate a motor-driven vehicle upon the highways of this state for the transportation of freight for hire as a contract carrier without first obtaining a permit from the railroad commission of the state. The appellees allege, in substance, that they each own an automobile truck and are engaged in the business of hauling cotton and other commodities for hire on the highways of Texas from the central portions of the state to Houston, Tex.; that they each made application in proper form to the railroad commission for a permit to operate trucks on the highways of the state for hire as contract carriers in compliance with the terms of the said act, and procured the necessary insurance for the protection of shippers and the public, and have done all other things required of them by said act to entitle them to permits as contract carriers, but that the members of the railroad commission purposely absent themselves from their offices at the state capitol and designedly refused to set said applications down for hearing, and have thereby denied the appellees a hearing on their applications, and as a result thereof appellees are constantly being arrested by the appellant and other officers of the state for violating the provisions of said law.

The appellees do not attack the validity of the above act nor deny that they come within its terms and do not allege that they have been granted the permit therein provided for, but their position is that, having filed the necessary applications for permits, and having done all other things necessary to entitle them to a hearing thereon, and the railroad commission having designedly failed and refused to act on such applications within what they term a reasonable time, they are entitled to enjoin the enforcement of the statute in question until their applications have been heard. They insist that they have a right to carry on their business as contract carriers over the highways of the state, and that such rights will be destroyed unless the injunction granted by the trial court is sustained.

On the other hand, the appellant contends that it is a violation of the act for appellees to operate their trucks for hire on the highways of the state without a permit, and that it is appellant's sworn duty as a peace officer of the state to arrest the appellees for such violations, and that in consequence he ought not to be restrained by a court of equity from performing this duty.

By the act in question the Legislature undertook to establish a complete system for the control and regulation of the transportation of freight for hire over the highways of this state. The purposes that prompted the Legislature in enacting the statute and the policy thereof, as declared in the act, is stated as follows:

"The business of operating as a motor carrier of property for hire along the highways of this State is declared to be a business affected with the public interest. The rapid increase of motor carrier traffic, and the fact that under existing law many motor trucks are not effectively regulated, have increased the dangers and hazards on public highways and make it imperative that more stringent regulation should be employed, to the end that the highways may be rendered safer for the use of the general public; that the wear of such highways may be reduced; that discrimination in rates charged may be eliminated; that congestion of traffic on the highways may be minimized; that the use of the highways for the transportation of property for hire may be restricted to the extent required by the necessity of the general public, and that the various transportation agencies of the State may be adjusted and correlated so that public highways may serve the best interest of the general public." See section 22b of the above act (as amended by Acts 42d Leg. [1931] c. 277, § 21 [Vernon's Ann. Civ. St. art. 911b, § 22b]).

Whether the policy adopted by the Legislature in enacting the act in question was wise or unwise is not a question to be determined by the courts. The power to enact such legislation is not herein questioned, and since the Legislature has acted thereon, the courts are concerned only as to the terms of the act and the effect thereof, and not as to its wisdom.

It is a well-settled principle of law that the use of the public highways of the state or of a city for the conduct or carrying on of a business, as is the hauling of freight for hire, is a special or extraordinary use and as such is enjoyed, not as a matter of right, but as a mere privilege, and is subject to all reasonable regulations by the state. No man has any more right, as a matter of right against the state, to set himself up for the transaction of a business for gain on the public highway of the state than he would have to transact a like business on the streets of an incorporated municipality. The Legislature has a right to regulate and control the transportation of freight for hire over its highways in the interest of public convenience and safety and for the protection of the highways, for the proper use of which it is trustee to the public, and such regulatory measures, when reasonable, have been uniformly sustained. Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286; Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596; West v. City of Waco, 116 Tex. 472, 294 S. W. 832; City of Waco v. O'Neal (Tex. Civ. App.) 33 S.W.(2d) 205.

The act in question makes it the duty of one desiring to operate a truck on the highways of the state as a contract carrier to file with the railroad commission a written application showing the name and address of the applicant, his financial condition and physical properties, the nature of the transportation to be carried on by him, the territory to be covered thereby, and the description of the vehicle to be used, and the size and capacity thereof. When such application is filed, the railroad commission is required to give notice and grant a hearing thereon. At such hearing it is made the duty of the commission to hear evidence and to determine the nature of the equipment to be used, the amount and character of the tonnage to be hauled, and the manner of loading same. The mere filing of an application for a permit does not give the applicant an absolute right thereto. The discretion of determining...