Kissinger v. Hay

• Decision Date: 14 November 1908
• Court: Texas Court of Appeals
• Parties: KISSINGER et al. v. HAY et al.

113 S.W. 1005

KISSINGER et al. v. HAY et al.

Court of Civil Appeals of Texas.

November 14, 1908.

Rehearing Dismissed December 5, 1908.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by N. Kissinger and others against S. J. Hay and others. From a judgment of dismissal, plaintiffs appeal. Affirmed.

M. M. Parks, J. M. Overstreet, and Ross M. Scott, for appellants. J. J. Collins and J. C. Robertson, for appellees.

RAINEY, C. J.

This is an injunction suit brought by appellants to enjoin the board of commissioners of the city of Dallas from the enforcement of an ordinance of said city regulating the standing of move wagons, express wagons, hacks, and other vehicles let for hire upon the streets of said city, and providing a license fee therefor. A temporary injunction was granted. Defendant answered by exceptions, and moved to dissolve, upon a hearing of which the exceptions were sustained, the injunction dissolved, and plaintiffs' cause dismissed, from which this appeal is prosecuted.

Plaintiffs' petition alleged, in substance, that they were threatened to be prosecuted for a violation of the ordinance, and that they would be greatly harrassed, annoyed, and oppressed, and that a multiplicity of prosecutions would follow, at great cost and expense to the appellants; that said ordinance is unconstitutional, unreasonable, and oppressive, and void, because it gives to the board of commissioners the discretion to say who shall and who shall not have a permit under the same, and because it is therefore discriminatory and partial; that the limits contained in the ordinance, and the fines and penalties attached for disobedience of it, are unreasonable, and that the enforcement of the ordinance would amount to the practical confiscation of appellants' property; that said ordinance practically excluded appellants from doing business in the city; that the license fee imposed by the said ordinance upon the appellants was, in effect, double taxation. Section 7, subd. 4, of the charter of Dallas (Sp. Act Leg. 1907, p. 584, c. 71, art. 2), gives to the city the power "to lay out, establish, open, alter, widen, lower, raise, extend, grade, narrow, care for, pave, supervise, maintain and improve streets, alleys, sidewalks, squares, parks, public places and bridges, and to vacate and close the same, and to require the removal from the streets and sidewalks of all obstructions, * * * signs, fruit stands, show cases, and encroachments of every character upon said streets and sidewalks." Section 43, of art. 14, among other powers confers the following: "To license, tax, and regulate draymen, hackmen, omnibus drivers, baggage wagon drivers, and drivers of vehicles of every kind, and all others pursuing like occupations with or without vehicles, and prescribe their compensation, and to make it a misdemeanor for any person to attempt to defraud them of any legal charge for services rendered; to regulate stands for vehicles and regulate, license and restrain runners for railroads, vehicles of any kind, hotels, public houses of any kind, or other business of any kind; to prohibit or regulate hacks, move wagons, baggage wagons or drivers of any thereof from making public stands in the streets of the city, and the board of commissioners may, if in their judgment they deem best, prescribe certain bounds, within which no hack, move wagon or other vehicle or wagon let for hire shall occupy any portion of the public streets therein for the purposes of a public stand or a private stand."

The ordinance, the enforcement of which is sought to be enjoined, provides, among other things, as follows:

"An ordinance regulating the standing of move wagons, express wagons, hacks, and other vehicles let for hire upon the public streets of the city of Dallas; providing for a license fee, and prescribing a penalty.

"Be it ordained by the board of commissioners of the city of Dallas:

"Section 1. That hereafter it shall be unlawful for any person to use or occupy any portion of a public street in the city of Dallas, for the purpose of a public stand, for the standing of any move wagon, express wagon, hack, automobile, or motor vehicle, or other vehicle, let for hire, without first making application in writing to the board of commissioners of the city of Dallas for a permit therefor, and obtaining from said board of commissioners, or under its authority, said permit, and paying the assessor and collector of taxes the license fee, hereinafter mentioned, provided however that no permit shall ever be issued to any such person to use or occupy any portion of the streets within the hereinafter defined bounds, for the purpose of a public stand, for the standing of any move wagon, express wagon, hack, automobile, or motor vehicle, or other vehicle let for hire between the hours of 8:00 o'clock a. m. and 7:00 o'clock p. m. of each day. And it shall be unlawful for any such person to use or occupy any portion of any of said streets within the hereinafter named bounds, between said hours for the purpose of a public stand, for the standing of any move wagon, express wagon, hack, automobile, or motor vehicle, or other vehicle let for hire. [Here follows a description of the territory named, which is here omitted.]

"Sec. 2. That the term `public stand' as used in this ordinance means any place on a public street that is being generally appropriated and used by a move wagon, express wagon, hack or hacks, automobile or motor vehicles, or other vehicles let for hire, when not engaged in the transportation of passengers, freight or property for the purpose of awaiting...