Brown v. City of Galveston

• Decision Date: 26 June 1903
• Citation: 75 S.W. 488
• Parties: BROWN et al. v. CITY OF GALVESTON.
• Court: Texas Supreme Court

75 S.W. 488

BROWN et al. v. CITY OF GALVESTON.

Supreme Court of Texas.

June 26, 1903.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Suit by A. A. Brown and others against the city of Galveston. From a judgment for defendant, plaintiffs appealed to the Court of Civil Appeals for the Second District, which certifies questions to the Supreme Court. Questions answered.

Jas. B. and Chas J. Stubbs, for appellants. J. Z. H. Scott, for appellee.

BROWN, J.

The Court of Civil Appeals for the First District certified to this court the questions hereinafter copied, with a statement from which we make the following extracts and condensed statement of facts alleged in the petition, which will be sufficient to understand the points discussed in this opinion:

"A. A. Brown and about 50 other citizens of Galveston brought this suit, for themselves and all others similarly situated, against the city of Galveston, a municipal corporation, for an injunction to restrain the enforcement of certain ordinances of the city requiring the payment of license dues or taxes upon vehicles kept for public or private use or hire, and for a judgment declaring the invalidity of the ordinances and the provisions of the charter on which they are based. A temporary injunction was granted. The defendant filed a motion to dissolve. The principal grounds of the motion were want of equity in the bill, an adequate legal remedy, and the denial of some of the averments of the petition. The answer also contained a general demurrer, and admitted that the petition correctly set out the portions of the charter and ordinances under which defendant assumed to act, and that plaintiffs were pursuing the occupations and using the vehicles stated in the bill, upon which license dues were claimed by the defendant; also, that defendant had levied and intended to levy and collect ad valorem taxes upon property subject to taxation, including the vehicles upon or on account of which license dues were claimed, and that it also had levied and collected, or intended to levy and collect, city occupation taxes from all of the plaintiffs liable therefor; that is to say, one-half of the occupation taxes levied by the state upon the same pursuits, and that such ad valorem and occupation taxes are `over and above and separate from' the license dues which are the subject of this controversy. After a hearing the defendant's motion to dissolve was sustained, and, the plaintiffs declining to amend, the court dismissed their petition and rendered judgment for the defendant."

The plaintiffs allege that the city of Galveston is a municipal corporation, chartered by and organized under an act of the Legislature of the state of Texas, entitled: "An act to incorporate the city of Galveston and to grant it a new charter and to repeal all pre-existing charters," approved April 18, 1901, which took effect on the 8th day of July of that year. The first section of the charter declares "that all the inhabitants of the city of Galveston shall continue to be a body politic and corporate with perpetual succession by the name and style of the `City of Galveston,' and as such they and their successors by that name shall have, exercise and enjoy all the rights, immunities, powers, privileges and franchises now possessed and enjoyed by the said city and herein granted and conferred, and shall be subject to all the duties and obligations now pertaining to and incumbent upon said city as a corporation not inconsistent with this act and may ordain and establish such acts, laws, regulations and ordinances not inconsistent with the Constitution and laws of this state as shall be needful for the government, interest, welfare and good order of the said body politic." The section authorizes the city to sue and be sued by that name; to purchase, lease, grant, and convey real property, etc. Section 2 defines the limits of the city of Galveston and its territorial jurisdiction, and section 3 divides the city into wards, defining their boundaries. Section 4 transfers to the new city all the waterworks, sewerage plants, fire engines, fire alarms, and all other kinds of property of every character which was possessed and owned by the old city. Section 5 is as follows: "There shall be appointed by the Governor of the state, as soon as possible after the passage of this act, three commissioners, one of whom he shall select and designate as president of the board of commissioners provided for herein, and within ten days after the passage of this act it shall be the duty of the commissioners' court of Galveston county to order an election to be held in the city of Galveston, at which election the qualified voters of the city of Galveston shall select two other commissioners, who, together with the three commissioners appointed by the Governor, shall constitute the board of commissioners of the city of Galveston. In ordering such election, the commissioners' court shall determine the time and the places in the city of Galveston for holding such election, and the manner of holding the same shall be governed by the laws of the state regulating general elections. Each of said five commissioners shall be over the age of 25 years, citizens of the United States and for five years immediately preceding their appointment or election residents of the city of Galveston. Each of said five commissioners shall hold office for two years from and after the date of his qualification and until his successor shall have been duly appointed or elected, as the case may be, and duly qualified. Said board of commissioners shall constitute the municipal government of the city of Galveston." Section 6 declares that the president and other members of the board of commissioners shall be held and deemed in law the successors of the mayor and aldermen of the city of Galveston, and, upon qualification by the commissioners as required by the charter, all powers, rights, and duties of the mayor and board of aldermen of the city shall cease, and that the said board of commissioners shall represent the city of Galveston in all matters in which the board of aldermen and the mayor would have represented it under the old charter. Sections 7, 8, 9, 10, and 11 provide for the qualification of the commissioners by taking the oath and executing the bond prescribed, for their removal, and for filling all vacancies, with other provisions which do not affect the question before us. Section 12 provides that "said board of commissioners so constituted shall have control and supervision over all the departments of the said city and to that end shall have power to make all such rules and regulations as they may see fit and proper concerning the organization, management and operation of such departments, and shall have power under such rules and regulations as they shall make to appoint and for cause, which to the said board shall seem sufficient after an opportunity to be heard, to discharge all employés including the chiefs of the departments respectively." The charter invests the board of commissioners with full power for the government of the city, which is unnecessary for us to set out in detail; suffice to say, that they embrace every phase of city government, and confer upon the board ample power to enable it to perform the duties enjoined. The power to levy and collect ad valorem occupation and license taxes is given to the city. Among other powers conferred is the following: "To authorize the proper officer of the said city to grant and issue licenses and direct the manner of issuing and registering thereof, and the fees and charges to be paid therefor, provided that no license shall be issued for a longer period than one year and shall not be assignable, except by permission of the board of commissioners." Section 51 of the charter reads as follows: "To license and tax the owners of all vehicles in the city of Galveston used or kept for private or public use, and to license, tax and regulate hackmen, draymen, omnibus drivers and drivers of baggage wagons, porters and all others pursuing like occupations, with or without vehicles, and prescribe their compensation, and provide for their protection, and make it a misdemeanor for any person to attempt to defraud them of any legal charge for services rendered, and to regulate, license and restrain runners for steamboats, railroads, stages and public houses; and enforce the collection of all such taxes by proper ordinances; and all revenues collected under the provisions of this section, or any ordinance passed in pursuance thereof, shall be used only for the improvement of the streets and alleys of said city." The power is also given to levy taxes upon different occupations, including merchants and all classes of dealers in merchandise, as well as all the occupations which are taxed by the state government. Section 94 provides that the act shall be taken and held as a public law by all courts and tribunals, which shall take judicial notice and knowledge of the contents and provisions thereof.

It is alleged that the board of commissioners of the city of Galveston, claiming to act in pursuance of and by the authority of the charter of the city, ordained and adopted ordinances, of which article 527 is in these words: "That it shall be unlawful for any person, firm or corporation, in said city to run or keep for public or private use or hire, any of the vehicles hereinafter mentioned, without having first obtained a license therefor, and given a bond, and paid the license dues prescribed by this ordinance." Article 528 prescribes the method by which the license may be obtained, and what shall be done by the citizens in order to obtain it, among which it is provided that applicants "shall pay the following license dues for each and every dray, furniture cart, or grocery or delivery wagon, drawn by not more than one animal, as license dues, the sum of five dollars,...