City of San Antonio v. Fetzer

• Decision Date: 10 May 1922
• Docket Number: (No. 6806.)
• Citation: 241 S.W. 1034
• Parties: CITY OF SAN ANTONIO et al. v. FETZER et al.
• Court: Texas Court of Appeals

Page 1034

241 S.W. 1034

CITY OF SAN ANTONIO et al. v. FETZER et al.

(No. 6806.)

Court of Civil Appeals of Texas. San Antonio.

May 10, 1922.

Rehearing Denied June 7, 1922.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Suit by A. Fetzer and others to restrain the City of San Antonio and its officials from enforcing an ordinance. From a temporary injunction, defendants appeal. Reversed, and temporary injunction set aside.

T. H. Ridgeway and R. L. Marshall, both of San Antonio, for appellants.

John Sehorn, Edwin Sehorn, and Eskridge & Williams, all of San Antonio, for appellees.

SMITH, J.

This is an appeal from a temporary injunction restraining the city of San Antonio and its officials from enforcing an ordinance which seeks to regulate the conduct, in San Antonio, of the business of operating motor busses, now generally known as "jitneys," as common carriers for hire, and denying to appellees and others engaged in that business the use of certain streets of the city for that purpose. It was provided in the ordinance that those engaged in that business must confine their operations to certain streets which were designated by name, and they were prohibited from operating on any other streets than those designated. It was alleged that appellees and others are owners and operators of jitneys on the city streets; that they have a natural and inherent right to operate such business on certain of said streets, and that this right was recognized by the state law, and the city charter and ordinances for which they were duly licensed by the city under an ordinance of March 8, 1915, as subsequently amended; that by the provisions of the ordinance attacked, which was adopted on December 1, 1921, and amended on January 30, 1922, by which the ordinance of March 15, 1915, was repealed, all existing jitney routes were abolished and new routes prescribed, and the owners prohibited from operating on any streets other than those designated in the new routes; that the proposed new routes were so located that jitneys cannot be operated thereon, in the transportation of passengers, at a profit, and that to enforce the new ordinance would have the effect of destroying and prohibiting or seriously injuring appellees' jitney business. It was further alleged, according to the statement of the case made by the court below, that:

"The complainants further alleged that said ordinances are void, for the reasons, it is alleged, in substance, that said ordinances were not passed by the defendant commissioners in the exercise of a bona fide discretion, with the view or purpose of subserving the public safety or convenience in the use of the public streets of the city by relieving or preventing a congestion of traffic on the streets, but were passed without regard to that consideration; that there was no congestion of traffic necessitating the passage of said ordinances; that said defendants knew there was no such congestion nor necessity; and that the recitals, in said ordinances, of such congestion and necessity were false, and made for the purpose of covering up the real purpose of said ordinances, which, it is alleged, was to destroy the jitney business in said city, and to create a monopoly of the street transportation of said city in the San Antonio Public Service Company. It is further alleged, in substance, that the passage of said ordinances was at the request of said company, and in pursuance of an agreement between said company and the defendant commissioners, whereby the said company agreed to reduce its street car fares if the said ordinances should be passed.

"It is further alleged by complainants that said ordinances are void because, it is alleged, they are unreasonable, in that there is and was no congestion of traffic on the streets, or other reason, requiring or necessitating such action in the interest of the public safety or convenience.

"It is further alleged that the action of the defendant commissioners in passing said ordinances was arbitrary and capricious and discriminating; that the ordinance complained of, if carried into operation, would have the effect, and were intended by the defendant commissioners to have the effect, of creating in the San Antonio Public Service Company a practical monopoly of passenger transportation in said city; that said ordinances contravene the Fifth and Fourteenth Amendments to the Constitution of the United States, in that they restrict the personal liberty of the complainant jitney operators, destroy their property rights without due process of law, and deny them the equal protection of the law."

Section 5, article 11, of the Constitution, and the following general laws of the state, are relied upon as delegating authority to the city for the passage of the ordinance:

"Art. 1096d. Full Power of Local Self-Government: Enumerated Powers. — 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 prohibit the use of any street, alley; highway or grounds of the city by any telegraph, telephone, electric light, street railway, interurban railway, steam railway, gas company, or any other character of public utility without first obtaining the consent of the governing authorities expressed by ordinance and upon paying such compensation as may be prescribed and upon such condition as may be provided for by any such ordinance. * * *

"To have exclusive dominion, control and jurisdiction in, over and under the public streets, avenues, alleys, highways and boulevards, and public grounds of such city. * * *

"To control, regulate and remove all obstructions or other encroachments or incumbrances on any public street, alley or ground. * * *

"To license, operate and control the operation of all character of vehicles using the public streets, including motorcycles, automobiles or like vehicles, and to prescribe the speed of the same, the qualification of the operator of the same, and the lighting of the same by night and to provide for the giving of bond or other security for the operation of the same.

"To regulate, license and fix the charges of fares made by any person owning, operating or controlling any vehicle of any character used for the carrying of passengers for hire or the transportation of freight for hire on the public streets and alleys of the city. * * *

"Art. 1096e. Effect of Enumeration of Powers.—The enumeration of powers hereinabove made shall never be construed to preclude, by implication or otherwise, any such city from exercising the powers incident to the enjoyment of local self-government, provided, that such powers shall not be inhibited by the Constitution of the state." Vernon's Sayles' Civ. Stats. vol. 1, p. 530.

The streets of the cities of this country belong to the public. Primarily, every member of the public has the natural right to the free use of such streets in the normal pursuit of his private or personal business or pleasure. In his errands of pleasure, he may use these highways to his heart's content. If he is in the dry goods or grocery business, or operates a laundry, or ice plant, or dairy, or bakery, or is engaged in any other business, he has the right to use the streets in delivering to his customers his dry goods, groceries, laundry, ice, milk, bread, or any other stores or products of his industry, or for any other purpose incident to such business. These rights, being inherent in him as an American citizen, cannot be taken away from him, or unreasonably restricted or regulated. Subject to this freedom of personal conduct inherent in the individual, however, the control of the streets of the cities rests in the Legislature, acting as trustee for the public. The right of the public at large to the free use of the streets is paramount to the natural right of the individual, and the Legislature, in its capacity as trustee, has the power to reasonably regulate this use, to the end that the public shall enjoy the maximum benefits thereof. If in its free use the right of the individual citizen conflicts with the paramount rights of the public at large, then the rights of the one must yield to those of the many.

The Legislature may delegate to municipal corporations the control of the streets of such municipalities, and when the power is so delegated the local governing body (the board of city commissioners in the case of the city of San Antonio) may exercise that power to the same extent and for the same purposes as the Legislature could do. The power of the city in exercising such control is limited only by the Constitution and general laws of the state, and its acts thereunder will be upheld unless in contravention of some provision of the Constitution or general laws. Section 5, art. 11, State Constitution; article 1096d, Vernon's Statutes. But neither the Legislature nor the city commissioners has the power to take away or unreasonably abridge, the natural rights of the citizen to the use of the streets in the manner and for the purposes we have set forth above.

But this inherent right of the citizen to the use of the streets ceases abruptly when he reaches the maximum of such use in the ordinary or normal pursuit of his personal pleasure or private business. Passing that point, he exceeds his natural right, and burdens the streets with an unusual use, thus encroaching upon the paramount rights of the public at large. It is at this juncture that the city commissioners, as substitute trustee for the public, enters with the power to determine whether or not, or to what extent, or upon what streets, this extraordinary use will be permitted. This doctrine, now universally recognized, is better expressed by the Supreme Court of Appeals of West Virginia, in Ex parte Dickey, 76 W. Va....