Ex Parte Wilchar

• Decision Date: 07 October 1925
• Docket Number: (No. 9536.)
• Citation: 278 S.W. 850
• Parties: Ex parte WILCHAR.
• Court: Texas Court of Criminal Appeals

278 S.W. 850

Ex parte WILCHAR.

(No. 9536.)

Court of Criminal Appeals of Texas.

October 7, 1925.

Rehearing Denied January 20, 1926.

Commissioners' Decision.

Appeal from El Paso County Court at Law; J. M. Deaver, Judge.

Application by C. M. Wilchar for a writ of habeas corpus. Relator remanded to custody of sheriff.

E. C. Wade, Jr., and C. M. Wilchar, both of El Paso, for relator.

Dave Mulcahy, Co. Atty., and Walter H. Scott, City Atty., both of El Paso, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BAKER, J.

Relator, C. M. Wilchar, was convicted in county court at law of El Paso county for violating the city ordinance of the city of El Paso, and his punishment assessed at $1 and costs. He applied for and was granted a writ of habeas corpus in this court, wherein he attacked the validity of said ordinance. The ordinance complained of shows the city designated certain streets as right of way streets, and made it a violation thereof to drive any vehicle therein from a cross street without coming to a full stop.

It was agreed that relator drove into one of said right of way streets without stopping as the ordinance required; that El Paso was a city of about 85,000 people and covers a large area; that from 11 o'clock at night to 7 o'clock in the morning there is very little traffic on said right of way streets. Boiled down to the final analysis, as we understand the record, the relator contends that said ordinance in question, though under the guise of traffic regulations, is a speed ordinance in fact, and in violation of the speed statute of this state, and especially article 820r, Vernon's Pen. Code Supp. 1918, and is unreasonable and void. Upon the other hand, the respondent, city of El Paso, contends said ordinance is a traffic ordinance which the city had the right to pass and enforce. Article 820r states limitations as to rate of speed fixed by this act shall be exclusive of all other limitations fixed by any law of this state or any political subdivision, and cities and towns shall have no power to pass, enforce, or maintain any ordinance in conflict with said provisions of said act, excepting, however, such powers as are now or may hereafter be vested in local authorities to enact ordinances or regulations applicable equally or generally to all vehicles and other users of highways, and providing for traffic or crossing officers or semaphores to bring about the order by passage of vehicles and other users of the public highways or certain portions thereof where the traffic is heavy and continuous.

It will be readily seen from the above statute, and as we understand from the relator's brief, it is so conceded that if the ordinance question came under that portion applicable to the traffic regulations it would be valid; but he contends that it properly falls within the speed regulations. From the record before us in this case we are unable to agree with relator's contentions. The ordinance on its face shows that it was intended to, and did apply to traffic regulations and not to speed regulations, and the record tends to show, as above stated, that the traffic on the streets mentioned as right of way streets was heavy except from 11 o'clock at night until 7 o'clock in the morning. The fact that it was not heavy all the time, in our opinion, would not preclude the city from passing the ordinance in question. Neither do we think it is unreasonable. In case of Ex parte Parr, 82 Tex. Cr. R. 525, this court held, in passing upon an ordinance involving license fees, in the city of San Antonio:

"The presumption that they are reasonable is not rebutted upon the face of the ordinance nor the evidence attacking it."

We think this record fails to show the ordinance unreasonable. Appellant cites us to Elie v. Adams Ex. Co., 300 Ill. 340, 133 N. E. 244, 21 L. R. A. 1208, from the Supreme Court of Illinois. We are of the opinion that this case is not exactly in point, but if it were, under the statutes of this state and decisions of our court construing ordinances, we would not be inclined to follow it under the facts of this particular case. After a careful examination of the able briefs filed by both sides, we are of the opinion that the ordinance in question is valid,...