Flowers v. Woodruff

• Decision Date: 19 February 1947
• Docket Number: No. 23621.,23621.
• Citation: 200 S.W.2d 178
• Parties: STATE ex rel. FLOWERS et al. v. WOODRUFF et al.
• Court: Texas Court of Criminal Appeals

200 S.W.2d 178

STATE ex rel. FLOWERS et al. v. WOODRUFF et al.

No. 23621.

Court of Criminal Appeals of Texas.

February 19, 1947.

Rehearing Denied March 26, 1947.

Appeal from Harris County Court; Phil D. Woodruff, Judge.

Prohibition proceeding by the State of Texas on the relation of J. E. Flowers, city attorney of Goose Creek and others against Phil D. Woodruff, district judge and others, attacking a restraining order by the district judge enjoining enforcement of a city ordinance providing for issuance of franchise permitting operation of taxicabs for hire and regulating the operation thereof.

Writ of prohibition granted.

J. E. Flowers, Lewis W. Cutrer, George W. Eddy and Will Sears, all of Houston, and Ernest S. Goens, State's Atty., of Austin, for relators.

A. F. Sundemeyer, William Calvin Montgomery, W. J. Mills and Peter S. Solito, all of Houston, for respondents.

HAWKINS, Presiding Judge.

The City of Goose Creek, in Harris County, Texas, enacted an ordinance providing for the issuance of franchise permitting the operation of taxicabs for hire, and regulating the operation thereof.

Section 4 fixes a street rental charge of one per cent (1%) on gross receipts from the operation of said taxicabs. Section 5 provides that the owners and operators shall keep records of revenues accruing and expenses incurred in the operation. Section 6 fixes the rates and fares which might be charged. Section 7 prohibits the operation of taxicabs for hire until a franchise to permit such operation is obtained, and provides for a hearing upon application for such permit. Section 8 provides for maintaining terminals for taxicabs, with telephone service. Section 9 prohibits any one from driving taxicabs who has not secured a chauffeur's license from the City Director of Transportation. Section 10 defines "cruising" and prohibits same except within certain hours, and prohibits the transportation knowingly of a criminal or prostitutes, or a person to the abode of a commercialized prostitute. Section 11 reserves the right to modify, amend, alter, change or eliminate any provisions of the franchise within certain limitations. Section 12 requires the holder of a franchise to give a good and sufficient performance bond, specifying its terms, and furnish a policy of insurance covering public liability and property damage. Section 13 enumerates the duties of the Director of Transportation, etc. Section 14 requires that every taxicab shall have painted on each side the name of the owner, the number of the cab and the telephone number of the owner. Section 15 prohibits the operation of a cab when the ad valorem tax is delinquent. Section 16 requires passengers to pay the fares due, and makes the refusal to pay an offense. Section 17 prohibits cruising and calling by drivers. Section 18 provides for the revocation of a franchise for failure to comply with the terms of the ordinance. Section 19 provides for owners of a franchise to operate through divisions or units or operating companies. Section 20 makes a violation of any provision of the ordinance punishable by a fine of $100, and each day the violation continues a separate offense. Section 21 provides that if any part of the ordinance is held unconstitutional or invalid the remaining parts of the ordinance shall not be affected thereby.

We do not deem it necessary to set out in detail the provisions of the ordinance for the reason that in the proceeding now before us this court is not called upon to pass upon the validity of the ordinance, nor of any section thereof, and we expressly disclaim any intention to do so.

Certain words or sentences, where thought desirable, have been italicized, and it is to be understood that wherever it occurs the emphasis is ours unless otherwise indicated.

Roy Sherman, Lonnie Williams, Lyle E. Messinger, James F. Utz, E. D. Harrold, W. R. Wagner and W. M. Morgan presented a petition to the Hon. Phil D. Woodruff, District Judge of Harris County, complaining of C. Q. Alexander, Mayor of the City of Goose Creek, E. E. Hunter, City Manager and Director of Transportation of said city, E. J. (Ed) Dickens, Chief of Police of said city, seeking to have the officers named enjoined from enforcing the ordinance mentioned. It is alleged in said petition that all the plaintiffs except Roy Sherman and Lonnie Williams, hold permits to operate taxicabs in the city, and that the two named have been refused renewals of such permits. Plaintiffs say in their petition: "That this is an action brought by the plaintiffs herein to have declared invalid, and to enjoin the enforcement and operation" of the ordinance in question and asking for "injunctive relief to enjoin the enforcement of said ordinance, as well as a declaration of the invalidity of said ordinance." Plaintiffs averred generally in their petition that the ordinance in question is "unconstitutional, inoperative, vague and uncertain, is grossly ambiguous, highly penal, discriminatory, prejudicial, confiscatory and wholly impossible of compliance, and said ordinance ought to be declared invalid and defendants ought to be enjoined from enforcing, or even attempting to enforce said ordinance."

Plaintiffs specifically attack Section 4 of said ordinance in attempting to levy a street rental charge of one per cent upon the gross receipts of fares collected because, as alleged, it is unlawful and prohibited by the state laws in Art. 6698, Revised Civil Statutes. Section 5 is specifically attacked upon the ground that it is impossible of performance, unintelligible and discriminatory. It is averred that Section 3 of said ordinance is discriminatory, ambiguous and in conflict with other provisions of said ordinance, and delegates unauthorized power to the Director of Transportation. Section 6 of said ordinance is alleged to be invalid as attempting to set prices on fares charged for service outside the limits of the City of Goose Creek. Section 7 of the ordinance is attacked as being impossible of compliance, ambiguous, vague and uncertain, and in conflict with Section 3. Section 8 regarding terminals is alleged to be impossible of compliance, vague and indefinite, and that it contains oppressive and unreasonable regulations and requirements. Practically the same specific averments are made regarding Section 9 of the ordinance. Section 10 is alleged to be impossible of compliance, and that it confers unprecedented, arbitrary and dictatorial powers upon the Director of Transportation. Section 12 is assailed under an allegation that it is wholly impossible of compliance, is grossly vague and uncertain, unintelligible and unconstitutional, and delegates unauthorized authority to the Director of Transportation. Section 20, which fixes a fine of $100 for a violation of any provision of the ordinance, and makes each day of violation a separate offense, is assailed as follows: "Plaintiffs herein allege and say that the said ordinance in its entirety, is here best illustrated in that there is a penalty of $100.00 for each violation, and each day a violation continues or exists, constitutes a separate offense, by which means the Defendant, City of Goose Creek, Texas, and those in charge thereof become complete masters of the Plaintiffs and their drivers, by securing evidence, from private papers and records, as required in said ordinance, and then insisting upon a penalty for each day of the periods of time, thus making it grossly oppressive, intolerant, and serving only the Defendants who manifest a desire to control each service of the Plaintiffs, and the Plaintiffs themselves, and the objections heretofore urged herein, are best exemplified by the penalties imposed by said ordinance."

A general averment in the petition is to the effect that the ordinance is void as having been irregularly enacted, and asserting that defendants "ought to be restrained from enforcing, or attempting to enforce the provisions of the aforesaid ordinance."

Then follows another general averment that defendants have demanded compliance with the ordinance in its entirety, otherwise prosecutions would follow; and that "if the threatened enforcement of the ordinance is carried out that plaintiffs will suffer immediate and irreparable injury, loss and damage," and that plaintiffs have no remedy at law, and that if the terms of said ordinance are enforced their entire business will be lost and destroyed.

Then follows the prayer for injunctive relief as follows: "Wherefore, the premises considered, the Plaintiffs herein pray that this court issue a temporary restraining order, without notice, to the Defendants, restraining the Defendants from interfering with Plaintiffs, or the operation of these Plaintiffs business, until such time as notice can be served and a hearing had on a temporary injunction and that the Defendants, each of them, be restrained from interfering with, molesting, or arresting any of the Plaintiffs herein, or any of their drivers or employees until such time as a hearing can be had on Plaintiffs petition for a temporary injunction, and that the Defendants be restrained from intimidating the Plaintiffs or any of their employees or drivers, and that the Defendants be cited, in terms of the law, to appear at the time stated in said Order to show cause why, a temporary injunction should not be granted, and that on a hearing thereof, that a temporary injunction be granted, likewise restraining the Defendants, and each of them, as requested under the restraining Order, and that upon the final hearing hereof, the said Ordinance in each respect where the same violates the Constitution of the United States or of the State of Texas or Laws of the State of Texas, the same be annulled, cancelled and declared void, and that the Defendants be permanently enjoined from the enforcement of said Ordinance, * * *"

After notice to the parties the judge to whom the petition was addressed entered in open court and at a regular term...