City of Amarillo v. Tutor

• Decision Date: 20 December 1924
• Docket Number: (No. 471-3904.)
• Parties: CITY OF AMARILLO v. TUTOR et al.
• Court: Texas Supreme Court

Page 697

267 S.W. 697

CITY OF AMARILLO v. TUTOR et al.

(No. 471-3904.)

Commission of Appeals of Texas, Section B.

December 20, 1924.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by Ollie May Tutor and husband against the City of Amarillo. From a judgment of the Court of Civil Appeals (244 S. W. 632), reversing an order sustaining defendant's demurrer to the petition, defendant brings error. Affirmed.

C. E. Gustavus, of Amarillo, for plaintiff in error.

P. F. Sapp and A. M. Mood, both of Amarillo, for defendants in error.

HAMILTON, J.

Ollie May Tutor, joined by her husband, brought this suit against the city of Amarillo, to recover damages for personal injuries sustained by her. The trial court sustained a general demurrer to plaintiff's petition, and she appeals.

Plaintiff alleged that the city had, at the time of the injury, the exclusive control over the streets at a certain point therein at the intersection of Third and Polk streets; that at such time it was engaged in the operation for hire of a street car line in the city, which was constructed and operated on said streets just mentioned; that the plaintiff, at about 9 o'clock p. m., approached one of said street cars at the intersection of Third and Polk streets, for the purpose of taking passage thereon; that in so doing she stepped into a hole near the track, and was injured; that the corner of Third and Polk streets, where the accident occurred, was one of the usual and customary places for passengers to board and alight from said street cars; that at this particular place there was a drain or sewer, which had been covered by a loose iron culvert covering; that one of the cars of defendant had caught this covering and moved it from its proper position, leaving a large hole, which abutted the rail of the street car track; that the uncovering of the hole was due to the negligence of the railway company in the construction of the culvert and the street car tracks and the operation of the car so as to catch and remove the covering. We quote the following résumé of the charges of negligence, contained in plaintiff's petition:

"That the negligence and carelessness of defendant, its agents, officers, and servants hereinbefore mentioned, was the direct and proximate cause of plaintiff's fall and her consequent injuries in this: The said hole was opened by the direct act of said defendant, in the operation of its street cars and in the carrying out of its business as a common carrier for profit, and said defendant had full knowledge and notice of said hole and its dangerous character and position in time to guard and protect the public, defendant's passengers, and this plaintiff, from the danger thereof, but negligently failed to guard or protect the public, defendant's passengers, and this plaintiff therefrom, by any means or device suitable thereto, at said crossing and stopping place of said street cars for the purpose of passengers embarking upon and alighting from said cars so operated by said defendant; that defendant was further negligent in failing to keep the said street at the crossing of Polk street open and free from the dangerous hole into which plaintiff fell; that defendant was negligent in failing to provide a street light in, about, or near said hole or said street crossing; that defendant was negligent in constructing and maintaining its tracks and in operating its cars in such manner that it caused said hole to be made in said street in the manner heretofore described; that defendant was negligent in failing to provide a safe place for its passengers to board and alight from its street cars."

In its answer the city pleaded that the inhabitants of the city, long prior to the time of this occurrence, adopted a city charter, which contained the following provision:

"Said city shall have the power to provide for the exemption of said city from liability on account of any claim for damages to any person or property, or to fix such rules and regulations governing the city's liability, as may be deemed advisable."

It further pleaded that in pursuance thereto the defendant, prior to this occurrence, had duly adopted an ordinance, "exempting the city from any and all liability for any injuries to persons or property." The trial court quotes the following ordinance of the city as the basis of his action in sustaining the demurrer to plaintiff's petition, and furnishing defendant exemption from liability in this case:

"That hereafter the city of Amarillo shall be and is hereby declared exempt from any and all liability and damages for any injury or injuries to persons or property caused by or arising from the filling, raising, grading, elevating or improving any property within this city, or caused by or arising from the prosecution of any public improvement, or caused by or arising from the construction, maintenance, or operation of any public utility plant or system, or caused by or arising from the maintenance, operation, or extension of its sewerage system, or caused by or arising from any obstruction, excavation, or any other character of defect whatsoever in any street, alley, sidewalk or other public place in this city, and from any and all liability of any other character of injury to persons or property, howsoever same is caused or produced."

This is the statement of the case made by the Court of Civil Appeals. It is in accord with the record, and its correctness is not questioned in this court. The Court of Civil Appeals reversed the judgment of the trial court, and remanded the cause for trial. 244 S. W. 632.

The city of Amarillo was incorporated under what is commonly known as the home rule statute (articles 1096a to 1096i, V. S. Civ. Statutes 1914), passed in pursuance of section 5 of article 11 of the Constitution as adopted by the people November 5, 1912. The pertinent portion of the constitutional provision reads:

"Cities having more than five thousand (5,000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state. * * *"

The pertinent portion of article 1096d, V. S. Statutes 1914, c. 17, passed to carry out the provisions of the Constitution from which the above quotation is made, provides:

"That by the provisions of this act it is contemplated to bestow upon any city adopting the charter or amendment hereunder the full power of local self-government, and among the other powers that may be exercised by any such city, the following are hereby enumerated for greater certainty: * * *

"To provide for the exemption from liability on account of any claim for damages to any person or property, or to fix such rules and regulations governing the city's liability as may be deemed advisable."

The exempting portion of the charter has already been set out in the statement of the case. It is in practically the same language as that of the statute. The ordinance on which the trial court founded his judgment of dismissal is set out also in the statement of the case above.

The Court of Civil Appeals based its decision upon its opinion in Green v. City of Amarillo, by the same court, in which the same statute and ordinance involved here was in question. 244 S. W. 241. Speaking through Judge Boyce, the court held that:

"The power of legislation which the Legislature may by implication confer on a municipality is confined to matters of local self-government and police regulations;" that "a law the effect of which would be to exempt the city from liability for damages resulting from its operation of a street railway on the public streets of a city is not a police regulation, or a law of local self-government, and is not a matter of purely local concern. It may operate for the benefit only of the city and its taxpayers; but the streets of the city are public highways, and are used, not only by the citizens of the city, but by the public generally, and such law affects the public at large."

The specific holding was that:

"The ordinance, in so far as it is sought to be applied to the case under consideration, is ineffective."

We do not differ from the Court of Civil Appeals in its holding in either that or this case. Ostrom v. City of San Antonio, 94 Tex. 523, 62 S. W. 909.

But we think the first clause of the statute attempting to authorize cities to exempt themselves from liability is unconstitutional. In so holding, we do so with a full appreciation of and consideration for the rule that every presumption is in favor of the validity of legislative acts. Until a statute be shown to be plainly and manifestly in conflict with the Constitution, all doubts will be resolved in its favor. It will be upheld unless there is a substantial departure from the organic law. Our reasons follow.

It is observed that the Constitution granted to cities having the stipulated population the power to "adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature. * * *"

All that portion of the ordinance which says that the city of Amarillo shall be and is hereby declared exempt from any and all liability and damages for any injury or injuries to * * * property caused by or arising from the acts and pursuits enumerated therein is not only inconsistent with, but is directly contrary to, section 17 of article 1 of the Constitution of Texas, which provides:

"No person's property shall be taken, damaged or destroyed for,...