Ex Parte Maynard

• Citation: 275 S.W. 1070
• Decision Date: 07 May 1924
• Docket Number: (No. 7883.)
• Parties: Ex parte MAYNARD.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

275 S.W. 1070

Ex parte MAYNARD.

(No. 7883.)

Court of Criminal Appeals of Texas.

May 7, 1924.

State's Rehearing Denied October 7, 1925.

Habeas corpus proceeding by Mrs. J. C. Maynard. Relator discharged.

M. L. Lefler, of Beaumont, for relator.

Lee G. Carter, City Atty., of Dallas, Wm. Emerson Stone, Asst. City Atty., of Jacksonville, W. A. Keeling, Atty. Gen., C. L. Stone, Asst. Atty. Gen., Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

Relator was convicted in the corporation court of the town of Jacksonville of a misdmeanor; punishment fixed at a fine of one dollar and costs. By way of an original application for a writ of habeas corpus she attacks the validity of the ordinance upon which the prosecution is founded.

Sections 1, 2, and 3 of the ordinance read thus:

"It shall hereafter be unlawful for any person to go into the cars or go into or remain in the station or upon the station or upon the station grounds or station platform of any railroad company within the corporate limits of the town of Jacksonville, Texas, or to park or stand a car or vehicle or other conveyances on such grounds to solicit or receive passengers or other transfer business for any corporation, company, partnership, association or individual doing a transfer business for passengers, baggage or other subject of transfer while a passenger train or railway motor passenger car is on such station grounds for the purpose of delivering or receiving passengers or baggage."

"Any person violating the provisions of this ordinance shall be punished by a fine in any sum not exceeding fifty dollars for each offense."

"This ordinance shall not apply to any corporation, company, partnership, association, or individual doing such a transfer business under contract with such railroad company to transfer its through passenger and baggage to other railway stations in said town."

The complaint, in substance, charges that the appellant went to the station of the International & Great Northern Railroad Company in the city of Jacksonville to solicit passengers for the transfer business of herself and husband, while a passenger train was on the station grounds for the purpose of delivering and receiving passengers; neither relator nor her husband being at the time under contract with the railroad company mentioned to transfer through passengers and baggage to other railroad stations.

The specific grounds of attack are that the regulation of the business mentioned is not within the purview of the police power; that it is discriminating in permitting others engaged in the transfer business to perform the prohibited acts; that it was not authorized by the Legislature, nor was it within the charter power of the city. The city is incorporated under the general law for the formation of municipal corporations embraced in title 22 of the Revised Civil Statutes of 1911. Under article 870 of the statute, power is vested by the Legislature in towns and cities to "regulate hackmen * * * and all others pursuing like occupations," in these words:

"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 railroads, stages and public houses." R. S. art. 870.

We think it is quite clear that the cities have the power to make reasonable regulations governing persons engaged in the transfer business. The nature of the means adopted to this end alone may be called in question. On this subject, see Ex parte Epperson, 61 Tex. Cr. R. 237, 134 S. W. 685, 37 L. R. A. (N. S.) 303; Ex parte Battis, 40 Tex. Cr. R. 112, 48 S. W. 513, 43 L. R. A. 863, 76 Am. St. Rep. 708; Ex parte Vance, 42 Tex. Cr. R. 619, 62 S. W. 568; Ex parte Bradshaw, 70 Tex. Cr. R. 166, 159 S. W. 259; Ragio v. State, 86 Tenn. 272, 6 S. W. 401; Greene v. City of San Antonio (Tex. Civ. App.) 178 S. W. 6; Clisbee v. Chicago, etc. (Tex. Civ. App.) 230 S. W. 235; Napman v. People, 19 Mich. 352; Emerson v. McNeil, 84 Ark. 552, 106 S. W. 479, 15 L. R. A. (N. S.) 715; Ex parte Parr, 82 Tex. Cr. R. 525, 200 S. W. 404; Colorado Springs v. Smith, 19 Colo. 554, 36 P. 540; Emporia v. Shaw, 6 Kan. App. 808, 51 P. 237; Ruling Case Law, vol. 6, p. 244.

Ordinances restrictive of the acts of persons soliciting passengers for hire upon railroad premises have often been upheld. They are said to rest upon the authority under the police power to enact reasonable regulations preventing annoyance to passengers and prospective passengers upon the railroad trains. Illustrations are found in Seattle Taxicab Co. v. Seattle, 86 Wash. 594, 150 P. 1134; Ruling Case Law, vol. 19, p. 860, § 162; Cosgrove v. Augusta, 103 Ga. 835, 31 S. E. 445, 42 L. R. A. 711, 68 Am. St. Rep. 149; City of Seattle v. Hurst, 50 Wash. 424, 97 P. 454, 18 L. R. A. (N. S.) 169; Williams v. Arkansas, 217 U. S. 79, 30 S. Ct. 493, 54 L. Ed. 673, 18 Ann. Cas. p. 865, note, page 867; Chillicothe v. Brown, 38 Mo. App. 609; Laddonia v. Poor, 73 Mo. App. 465. A statute addressed against the same evil was upheld by the Supreme Court of the United States in the case of Williams v. Arkansas, 217 U. S. 79, 30 S. Ct. 493, 54 L. Ed. 673, 18 Ann. Cas. 865.

It follows from what has been said that the ordinance in question, if invalid, is not made so by reason of want of power on the part of the city of Jacksonville to enact a reasonable ordinance to prevent the evil. The vice, if any, in the ordinance is that arising from the exemption from the operation of the ordinance given by section 3 to persons with whom the railroad company has contracted to convey through passengers from one depot to another. Those who simply perform under the contract the service of transporting through passengers and their baggage from one depot to another would not come within the terms of the ordinance. They are not necessarily solicitors. It is against soliciting that the ordinance is directed. It is...