Ex Parte Bradshaw

• Decision Date: 16 April 1913
• Parties: Ex parte BRADSHAW.
• Court: Texas Court of Criminal Appeals

Page 259

159 S.W. 259

Ex parte BRADSHAW.

Court of Criminal Appeals of Texas.

April 16, 1913.

On Motion for Rehearing, May 14, 1913.

Appeal from Hill County Court; J. D. Stephenson, Judge.

Application for habeas corpus by M. L. Bradshaw. From a judgment in the county court remanding relator to custody, he appeals. Judgment affirmed, and relator remanded to custody.

Luther Nickels, of Austin, for appellant. Tarlton Morrow, City Atty., of Hillsboro, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The city of Hillsboro, in Hill county, was duly incorporated by a special act of the Legislature. Among other powers given by its charter, is the power "to control the streets, alleys, highways, sidewalks and public grounds and places in said city"; also "to regulate and control the use of said streets, alleys, etc., by any person, animal, or vehicle in whatever way and for whatever purpose"; also to establish and erect markets and market house, and designate "and control, and regulate market places and privileges"; also "to license, tax, regulate, suppress and prevent hawkers, peddlers, pawnbrokers, and dealers in all kinds of junk and secondhand goods, wares and merchandise, itinerant venders of clothing or wearing apparel, or any other business or occupation which in the opinion of the city council shall be the proper subject of police regulation."

Under this power and authority said city duly passed and put into effect an ordinance regulating traffic upon the streets and alleys of said city within the fire limits, and regulating peddling, vending, and exhibiting thereon, and providing fines for violation thereof. Section 3 of said ordinance is: "It shall hereafter be unlawful for any person to use the streets or alleys embraced within the fire limits of the city of Hillsboro, for the purpose of vending or displaying goods, wares, merchandise or produce or other articles, or for the purpose of peddling goods, wares, merchandise, produce or other articles: Provided, however, that this section shall not apply to any person who himself offers for sale any products raised or grown upon the property owned or rented by him, or under his control." Section 7 of said ordinance makes the violation thereof a misdemeanor, punishable by fine not exceeding $25.

On December 12, 1912, proper complaint was filed against relator, Bradshaw, a proper warrant issued for his arrest, and he was arrested by the city marshal and properly held thereunder. He thereupon sued out a writ of habeas corpus before the county judge of Hill county, claiming that he was illegally restrained of his liberty, because the city of Hillsboro had no authority to pass such ordinance, and it is void. The county judge heard the evidence and argument, and remanded the relator to the custody of the marshal, from which this appeal is prosecuted.

The further facts show that on December 12, 1912, relator was a peddler, selling apples, which he had in his two-horse wagon; that he made a sale therefrom while he was on the public square, in what was shown to be a part of the public street or square of said city. The fee to this particular portion of the square or street was in Hill county. Its courthouse, it seems, was located in the center of this square. This part of the square or street, where relator was, had been paved, and was then and for many years prior thereto had been used by the public generally for road or street purposes. The city swept the whole of this paved street or square, and exercised control over it as one of the public streets or thoroughfares of the city. It appears that the relator offered for sale apples upon the square or streets of said city, embraced within the fire limits thereof, and that such articles offered for sale and sold by him were not products grown or raised upon his property, or property rented by him or under his control.

The main contention by relator is that said ordinance is void because it is class legislation; that it prohibits peddlers from selling on its streets and authorizes other persons to sell on its streets, within said fire limits, any products raised or grown upon their property, rented by them or under their control, claiming that said ordinance violates that clause of our Constitution (section 3, art. 1) which is: "All free men, when they form a social compact have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services." It is undoubtedly the law of this state, as held by the Court of Civil Appeals in Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 672, that persons have no vested right to make marts of the streets, alleys, and other public places in any incorporated town. It is also unquestionably the law of this state that the Legislature may classify persons according to their business, and may apply different rules to those which belong to different classes, and that municipal corporations, when authorized by their charters, can also do this. Supreme Lodge v. Johnson, 98 Tex. 5, 81 S. W. 18; Campbell, Receiver, v. Cook, 86 Tex. 634, 26 S. W. 486, 40 Am. St. Rep. 878; Insurance Co. v. Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504; Marchant v. Railway Co., 153 U. S. 389, 14 Sup. Ct. 894, 38 L. Ed. 751; Green v. State, 49 Tex. Cr. R. 380, 92 S. W. 847; Smith v. State, 54 Tex. Cr. R. 298, 113 S. W. 289; Beaumont Co. v. State, 57 Tex. Civ. App. 605, 122 S. W. 615; Douthit v. State, 36 Tex. Civ. App. 396, 82 S. W. 352; Id., 98 Tex. 344, 83 S. W. 795; Insurance Co. v. Gooding, 19 Tex. Civ. App. 490, 49 S. W. 123; Insurance Co. v. Mettler, 185 U. S. 325, 22 Sup. Ct. 662, 46 L. Ed. 922; Nash Hardware Co. v. Morris (Sup.) 146 S. W. 874; Railroad v. Taylor, 134 S. W. 819; Railroad v. Grenig, 142 S. W. 135; De Grazier v. Stephens, 101 Tex. 194, 105 S. W. 992, 16 L. R. A. (N. S.) 1033, 16 Ann. Cas. 1059.

This court, in Ex parte Henson, 49 Tex. Cr. R. 177, 90 S. W. 874, expressly held that the city of Greenville, in Hunt county, had the power to prohibit the use of certain streets and the public square of that city for the purpose of peddling. The city of Greenville, as shown by the opinion in that case, was incorporated under the general incorporation laws of this state, and it was given the same power and authority over its streets that the city of Hillsboro was substantially given over its streets, square, etc. In that case, as is shown by the report of it, the city of Greenville made it an offense "for any person to peddle or in any other manner sell any kind of merchandise, patent medicine, or nostrum on the public square and certain streets," naming them. Henson contended that the ordinance was unreasonable, and therefore void. He also contended that the ordinance was inseparable, and that it applied to others as well as peddlers. This court held that the rule of ejusdem generis applied, and that the "ordinance evidently had in view as its primary object to prohibit peddling in the public streets and on the public square of Greenville, and what follows as to other sales relates to this character of sales—that is, sales by peddling." The opinion then proceeds to hold that, even if wrong in applying the rule of ejusdem generis, then in the latter part of the ordinance, indicating that others than peddlers were prohibited from using the said streets and square for peddling purposes, that it was severable, and held the ordinance constitutional, and within the powers of the corporation to prohibit peddling on said streets and public square. The opinion also holds: "We have no doubt that it is within the power of the Legislature to confer on towns and cities the power to regulate peddling within the jurisdiction of such towns and cities, especially on the public streets and squares of such cities; the same being peculiarly within the jurisdiction of towns and cities. Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668. Nor does the fact that the state, as is the case here, may license peddlers, exclude the idea of municipal supervision, where the power for such supervision is given in the charter."

It is true that this court has uniformly held that ordinances levying any occupation tax on peddlers, which exempt from their operation other persons as peddlers, were invalid (Ex parte Jones, 38 Tex. Cr. R. 482, 43 S. W. 513; Rainey v. State, 41 Tex. Cr. R. 254, 53 S. W. 882, 96 Am. St. Rep. 786, and other cases), and that ordinances which exempted certain persons within any given class are uniformly held invalid. But those cases do not apply in this question. As shown by these decisions and on like questions, the very reason that they were held invalid and violative of said provision of our Constitution was because they excepted from the operation of the act other persons within that class, not because the Legislature or the municipal corporation did not have the right or power to make classes which were founded upon some just basis, and tax, regulate, or prohibit one class and not the other.

The question raised in this case has many times been decided adversely to relator's contention by the courts of different states. State v. Montgomery, 92 Me. 433, 43 Atl. 13; People v. Sawyer, 106 Mich. 428, 64 N. W. 333; In re Nightingale, 11 Pick. (Mass.) 168; 2 Dillon on Municipal Corporations (5th Ed.) § 706; Commonwealth v. Rice, 9 Metc. (Mass.) 253; Wartman v. Phila., 33 Pa. 202; Dutton v. Mayor, 121 Tenn. 25, 113 S. W. 381, 130 Am. St. Rep. 748, 16 Ann. Cas. 1028; People v. De Blaay, 137 Mich. 402, 100 N. W. 598, 4 Ann. Cas. 919. See, also, note in 16 Ann. Cas. 1030, where many cases to this effect are cited.

In the case of People v. Sawyer, 106 Mich. 428, 64 N. W. 333, the Supreme Court of Michigan said: "The discrimination in favor of mechanics and farmers in the sale of their products is within the power conferred by the charter upon the common council. These immunities have been...