Greene v. City of San Antonio

• Decision Date: 09 June 1915
• Docket Number: (No. 5545.)
• Citation: 178 S.W. 6
• Parties: GREENE v. CITY OF SAN ANTONIO et al.
• Court: Texas Court of Appeals

178 S.W. 6

GREENE v. CITY OF SAN ANTONIO et al.

(No. 5545.)

Court of Civil Appeals of Texas. San Antonio.

June 9, 1915.

On Motion for Rehearing, June 28, 1915.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Action by R. P. Greene against the City of San Antonio and others. From a judgment of dismissal, plaintiff appeals. Affirmed.

Bosshardt & Wicks and W. C. Church, all of San Antonio, for appellant. Geo. R. Gillette, Robt. G. Harris, and R. J. McMillan, all of San Antonio, for appellees.

FLY, C. J.

The amended petition fails to disclose the names of the defendants, but merely refers to them as defendants who had been cited and appeared and answered, but by a reference to the general demurrer it is ascertained that it is signed by the attorneys for the city of San Antonio, Clinton G. Brown, mayor, and Fred Lancaster, chief of police. The suit was instituted to temporarily restrain the enforcement of a certain ordinance regulating the operation of street cars, jitneys, motor omnibuses, and other vehicles using the streets of San Antonio for local street transportation. It seems that a temporary restraining order was entered on March 27, 1915, and on May 19, 1915, the general demurrer was sustained to the petition, and the cause was dismissed, but under an agreement of the parties the restraining order was continued in force until June 9th, then to be dissolved.

The highways of a state, including the streets in cities and towns, are under the paramount and primary control of the Legislature, and all powers of cities and towns over streets must depend upon the authority granted in special charters or general laws applying to such municipalities. Whatever power the state has over its highways can be granted by it to the municipalities it has created, and in this instance "exclusive control and power" over the streets, alleys, sidewalks, and public grounds within its bounds have been granted to the city of San Antonio, not only in the special charter granted it, but by the general laws of the state. The streets do not belong to the city or town in which they may be situated, but all powers over them are derived from the Legislature by charter or statute. They are affected by a trust for the public use and benefit. The primary design in laying out and constructing streets is for the purpose of travel and passage for the public, and rights as to ingress and egress, nearly resembling private rights, are also given abutting owners. Having exclusive control over the streets, the Legislature, or those to whom it has delegated powers over streets, have the right and authority to impose reasonable terms and conditions upon the right to use them. Subject to rights of abutting owners, streets may be closed to all business traffic, the speed of vehicles regulated, obstructions may be prevented or removed, licenses to use the streets may be required, travelers may be required to obey the directions of the police, vehicles having heavy loads may not be permitted on certain streets, or be required to have wide tires, the weight of loads may be limited, and hacks may be compelled to remain at certain stands. These are only a part of the many regulations that have been held valid. Dill. Mun. Cor. §§ 1163-1167.

The only absolute right that the private individual has in the streets of a city, not including the abutting owner, is the right to convey himself or property from one place to another, and even that right may be regulated. The individual usually has the right to cross a street whenever he may so desire, but the municipality may prevent him from crossing at any place except corners, and under proper circumstances may prevent him crossing at all, as when there may be danger or when funeral or other processions may be passing. No individual has the inherent right to use a street or highway for business purposes. No man has the right to use a street for the prosecution of his private business, and his use for that purpose may be prohibited or regulated as the state or municipality may deem best for the public good. Not having the absolute right to use streets for the prosecution of private business, within the bounds of reason, where no discrimination is shown, persons or classes of persons may be controlled or regulated in the use of streets.

This is a self-evident proposition, for, if it were not so, sidewalks and streets could be rendered impassable by those vending their wares or soliciting patronage. In advocating the rights of the individual, the principle should always be kept in view that in any form of civilized society, and especially in a government founded upon the will of the majority, natural rights, the exercise of which is deleterious and harmful to the rights, comfort, and happiness of the majority can and must be restrained or taken away. The price paid by every citizen for the right to enjoy the privileges and comforts of civilized life is the surrender of certain natural rights. The fewer natural rights that can be disturbed in the protection of the rights of society, the rights of the majority, points the way to the ideal government, but the wishes, the desires, the natural rights of the individual, must, in the highest form of government ever conceived by man, in some points clash with the rights of the majority, and the individual must surrender those rights to the public good. The more complex the affairs of men become, the more the natural rights of individuals must be infringed upon for the public good. There must inevitably be more regulation, more necessity for surrender of certain rights, in the crowded city than in the rural community, and to protect the rights of the public the Legislature is clothed with authority to enact and enforce such laws and regulations as may be necessary in each community. The validity of such regulations must be measured by the necessities of the occasion and the rights of the public. The regulation must be reasonable, but its reasonableness will be measured by public rights.

It has been held time and again that cities have the authority to regulate or even to prohibit the prosecution of a private business on a street, and that such business cannot be engaged in lawfully without a grant of some character from the government. Whether the grant be denominated a franchise, a license, or a privilege would not matter, for the distinction is one in name and not in substance. Dill. Mun. Corp. § 1210, and notes. The author cited defines a franchise —

"to be a particular privilege which does not belong to the individual or corporation as of right, but is conferred by a sovereign or government upon, and vested in, individuals or corporations."

The right to solicit passengers and convey them for hire from one part of the city to another, as appellant does, is a privilege, a right, or a power, which he cannot exercise as of right, but its lawful existence must depend upon a grant whose character will not be changed by calling it a franchise, a privilege, or a license. The rights given could, with perfect propriety be named a franchise.

It is not contended by any one that the city would have the right to prevent appellant from riding in his automobile on any street in the city, except under certain circumstances, for the streets were builded for that purpose, among others, but appellant is not only desirous of riding in his automobile on the streets of San Antonio, but he has established a business which he wishes to conduct on the streets without leave or license from the city, and without the payment of anything therefor. No one would contend that the city would be powerless to protect itself from scores of fruit vendors who might stand upon the streets and seek for customers, and no reason would be necessary except that streets were constructed for use by the public, and not for the prosecution of a private business. Can it be said that rushing along the streets, stopping at curbs, and soliciting passengers and conveying them for a sum of money to different portions of the city is not a business? It is not only a business, but if the allegations of the petition be true, quite a lucrative one. If the peanut vendor, the pop corn seller, or the peddler can be regulated in his use of the streets, the mind can offer no reason why the "jitney" driver should not be regulated in his traffic on the streets.

But it is contended that the regulation must be reasonable. Let that rule be admitted, and where is the unreasonableness of the ordinance to be found? The drivers of jitney cars have placed in their charge and keeping the lives and persons of men, women, and children, and it would not only be unreasonable, but criminal, for the city to turn them loose on the streets unrestrained by any restrictions. Every owner of an automobile is required to obtain a license before he can use the streets and roads, and why should not the owner of a car who carries passengers for hire be required to obtain a license and be subject to inspection and regulation? If such vehicles are to be permitted on the streets, no valid reason can be given for not requiring them to serve the public to the best advantage, and as that will be attained by a regular route and regular schedule, they have been prescribed.

It is contended that a city is not authorized to require a bond for the protection of citizens, and certain authorities are cited to sustain the contention, but they fail to do so. In the case of Taylor v. Dunn, 80 Tex. 652, 16 S. W. 732, it was not held that the city of Austin could not require a bond that would inure to the benefit of third parties, but, on the other hand, the right to require such a bond is recognized. When the charter gave the exclusive control of the streets to the city of San Antonio, it necessarily gave it the authority to require reasonable conditions upon which use of the streets should be granted. By the grant of exclusive control of the...