Ex Parte Smythe

Decision Date14 May 1930
Docket NumberNo. 13469.,13469.
Citation28 S.W.2d 161
PartiesEx parte SMYTHE.
CourtTexas Court of Criminal Appeals

Appeal from Harrison County Court; Jno. W. Scott, Judge.

Habeas corpus proceedings by A. M. Smythe. From an order remanding relator, he appeals.

Reversed, and relator ordered discharged.

Davidson, Blalock & Blalock, of Marshall, for appellant.

William Caven, City Atty., of Marshall, and A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Relator was charged with violating an ordinance of the city of Marshall. Being arrested and confined in the city jail under said charge, he sued out a writ of habeas corpus and, upon a hearing, was remanded, from which order he appeals to this court.

Relator was arrested under the following complaint: "I, E. H. Whitehurst do solemnly swear that I have good reason to believe, and do believe, that A. M. Smythe on or about the 29th day of January A D 1930 in the territorial limits of the City of Marshall in Harrison County, Texas, and before the making and filing of this complaint, was then and there in the business and trade of lending money and making collections in connection therewith, and did on said 29th day of January A. D. 1930 on Bolivar Street, transact a part of such business by attempting to collect money from Manuel Goodspeed, against the peace and dignity of the State."

The ordinance of the city of Marshall defining the offense for which appellant was arrested reads as follows: "Section 1. Hereafter it shall be unlawful for any person or persons who are engaged in the business or trade of lending money and making collections in connection therewith to transact any part of such business on the streets of the city of Marshall."

On the habeas corpus hearing, relator testified in substance that he was employed by the Hall Investment Company, which was engaged in making small loans and collections; that on the date of the alleged offense one Manuel Goodspeed was indebted to his employer in a small sum of money; and that he stopped and asked said Manuel Goodspeed when he was coming to the office to pay off said note. He reminded him that it was past due and urged him to take care of it promptly.

Appellant contends the above ordinance is unconstitutional. The substance of the state's contention is that the city of Marshall under its charter has absolute right of control over all of its streets and the right to prohibit same from being used by any citizen or class of citizens for the conduct of any kind or character of business. Under the general police power inherent in sovereignty, there can be no doubt of its right to reasonably control and regulate such matters. The general rule has been stated as follows: "The police power of the state extends only to such measures as are reasonable, and the general rule is that all police regulations must be reasonable under all circumstances. In every case it must appear that the means adopted are reasonably necessary and appropriate for the accomplishment of a legitimate object falling within the domain of the police power. A statute to be within this power must be reasonable in its operation upon the persons whom it affects, and not unduly oppressive. The validity of a police regulation therefore primarily depends on whether under all the existing circumstances the regulation is reasonable or arbitrary and whether it is really designed to accomplish a purpose properly falling within the scope of the police power." 6 R. C. L., Constitutional Law, Paragraph 226.

We take the following from the case of Houston & T. C. Ry. Co. v. Dallas, 98 Tex. 396, 84 S. W. 648, 653, 70 L. R. A. 850: "The power is not an arbitrary one, but has its limitations. It is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience as consistently as may be with private property rights. As those needs are extensive, various, and indefinite, the power to deal with them is likewise broad, indefinite, and impracticable of precise definition or limitation."

It has been further stated: "In order to sustain legislative interference by virtue of the police power, under either a statute or a municipal ordinance, it is necessary that the act should have some reasonable relation to the subjects included in such power, and the law must tend, in a degree that is perceptible and clear, toward the preservation of the public welfare, or toward the prevention of some offense or manifest evil, or to the furtherance of some object within the scope of the police power. * * * One application of the familiar rule that the validity of an act is to be determined by its practical operation and effect and not by its title or declared purpose is that a constitutional right cannot be abridged by legislation under the guise of police regulation; since the legislature has no power, under the guise of police regulations, to invade arbitrarily the personal rights and...

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6 cases
  • Town of Green River v. Bunger, 1922
    • United States
    • United States State Supreme Court of Wyoming
    • June 9, 1936
    ...... v. Dauben, 124 N.E. 232-233; State v. Southern R. Co., (N. C.) 82 S.E. 963; City of Louisiana v. Bottoms, (Mo.) 300 S.W. 316-7; Ex parte Westellison,. (Okla.) 259 P. 873; Town v. Ziller, (Miss.) 118 So. 293; Hogan v. Fleming, (Mo.) 297 S.W. 404-412;. State v. Prather, (Kan.) ...598; Humes v. City of Little. Rock, 138 F. 929; City v. Shultz, (Ill.) 173. N.E. 276; Inglis v. Rymer, (Fla.) 152 So. 4; Ex. Parte Smythe, (Tex.) 28 S.W.2d 161; People v. Armstrong, (Mich.) 41 N.W. 275; In Re Webb,. (Okla.) 1 P.2d 416; Real Silk Mills v. City of. Bellingham, ......
  • Household Finance Corp. v. Shaffner
    • United States
    • United States State Supreme Court of Missouri
    • July 14, 1947
    ......433, 146 S.W. 40;. State ex rel. Kansas City v. O'Rear, 277 Mo. 303, 210 S.W. 392; Kreibohm v. Yancey, 154 Mo. 67,. 55 S.W. 260; Ex parte Berger, 193 Mo. 16, 90 S.W. 759;. Griffith v. Connecticut, 218 U.S. 563, 54 L.Ed. 1151; 11 Am. Jur., p. 707. (2) Laws passed by the 64th. ... discriminates against them by denial of the right of. classification in the fixing of interest rates. Ex parte. Smythe, 28 S.W.2d 161; State v. Julow, 129 Mo. 163,. 31 S.W. 781; State ex rel. Rolston v. C., B. & Q., . 246 Mo. 512, 152 S.W. 28; State ex rel. ......
  • Noell v. City of Carrollton & Carrollton Prop. Standards Bd.
    • United States
    • Court of Appeals of Texas
    • April 9, 2014
    ...696]State of Washington v. Roberge, 278 U.S. 116, 121, 49 S.Ct. 50, 73 L.Ed. 210 (1928); see also Ex parte Smythe, 116 Tex.Crim. 146, 28 S.W.2d 161, 162 (Tex.Crim.App.1930). Further, to justify a taking based on its police power to abate nuisances, a nuisance must in fact exist. See Stewart......
  • Williams v. State, 22550.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 8, 1943
    ...or arbitrary and is really designed to accomplish a purpose properly falling within the scope of police power. Ex parte Smythe, 116 Tex.Cr.R. 146, 28 S.W.2d 161; 11 Am. Jur. 1073, and authorities there It follows that legislation which is necessary or appropriate to protect the general welf......
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