Mahaney v. City of Cisco

• Decision Date: 25 November 1922
• Docket Number: (No. 10434.)
• Citation: 248 S.W. 420
• Parties: MAHANEY v. CITY OF CISCO et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

248 S.W. 420

MAHANEY v. CITY OF CISCO et al.^*

(No. 10434.)

Court of Civil Appeals of Texas. Ft. Worth.

November 25, 1922.

Rehearing Denied January 13, 1923.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Suit by G. N. Mahaney against the City of Cisco and others to restrain enforcement of an order revoking petitioner's license. From an order refusing a temporary injunction until final hearing, petitioner appeals. Affirmed.

Cearley & Pearce, of Cisco, and Burkett, Orr & McCarty, of Eastland, for appellant.

Butts & Wright, of Cisco, for appellees.

BUCK, J.

G. N. Mahaney applied to the district court of Eastland county for an injunction against the City of Cisco and its commissioners. He alleged that some time in May, 1922, a license was issued to him by the city, authorizing him to run and operate a passenger motor vehicle, for which he paid $25. That the commissioners and the mayor of said city, without cause and without authority of law and in violation of the ordinances and statutes of said city, did, on August 26, 1922, at a special meeting of the commissioners, pass the following order, to wit:

"Be it remembered that at a special meeting of the city commission of the city of Cisco, Eastland county, Tex., held at the city hall of said city of Cisco, on the 6th day of October, A. D. 1922, with L. H. McCrea, Minter Womack, Ernest Hittson, J. B. Blitch, and R. L. Poe, commissioners, and J. M. Williamson, mayor, there was brought up before said body for consideration and determination the cancellation of the service car license issued by the city of Cisco to Newt Mahaney on the 15th day of May, 1922, said license granting to the said Newt Mahaney the right to operate a car for hire, or service car license in said city of Cisco.

"Due notice of such meeting having been given to the said Newt Mahaney to appear before said city commission at said meeting and show cause, if any, why said license should not be revoked, and, the said Newt Mahaney having failed to appear or to make answer before the said commission, it was moved, seconded, and unanimously passed that the peace, quietude, and morals of the City of Cisco would be best conserved by the revoking of said license heretofore referred to.

"It is accordingly the order and decree of the city commission of the city of Cisco, Eastland county, Tex., that the motor or service car license issued by the said city of Cisco, Eastland county, Tex., under date of May 15, 1922, to the said Newt Mahaney, be, and the same is hereby, revoked, and without further force and effect from and after a delivery to the said Newt Mahaney of a true copy of this revocation and order.

"The secretary is directed to forthwith issue a true and correct copy of this order, and to issue to Newt Mahaney the voucher of said city of Cisco for any amount that may be due by reason of the unexpired time that said license would run, and to deliver both said copy and voucher to the chief of police of said city of Cisco, and due return thereof make of the date so delivered to said chief of police, and the chief of police is directed to make due returns on a copy hereof showing service on the said Newt Mahaney.

                  "Passed.         W. B. Statham, Secretary
                  "Approved.       J. M. Williamson, Mayor
                

"I, W. B. Statham, secretary of the City of Cisco, do hereby certify that the above and foregoing is a true and correct copy of an order passed by the city commission of the city of Cisco at a special meeting called and held on the 6th day of October, 1922.

"Given under my hand and seal of office, this the 12th day of October, A. D. 1922.

                                       "W. B. Statham
                           "Secretary of the City of Cisco."
                

That in pursuance of said order directed against plaintiff, a copy of the same, together with a check or voucher in the sum of $13 purporting to be the balance due him as a refund on the license of the motor vehicle theretofore issued to the plaintiff, was sent to him, but he returned the same to the secretary of the city of Cisco.

Plaintiff further alleged that the action of the defendants in passing said order, revoking and canceling his license, was discriminatory, and in violation of the ordinances of the city itself and in violation of the laws of Texas, in that it permitted other service cars or motor vehicles to operate under a similar license for hire, and forbade this plaintiff to operate his car for hire. He alleged that the order constituted class legislation and was void; that he had never been convicted of any violation of the ordinances regulating the issuance and use of the license aforesaid, and specially that he had not violated the same in knowingly carrying in his motor vehicle intoxicating liquors to be used for beverage purposes, or in carrying women for immoral purposes. The ordinance prohibiting these acts provided, in addition to the fine to be imposed, that the person violating the same should have his license forfeited.

Plaintiff further alleged that he had always conducted his business of operating a service car for hire in accordance with the laws of the state of Texas and the ordinances of said municipal corporation, and at no time had he been guilty of any violation thereof. Plaintiff prayed that the court issue a writ of injunction—

"restraining said municipal corporation from enforcing or attempting to enforce said order canceling and revoking said license of this plaintiff to operate a motor vehicle for hire in said city of Cisco, and to further restrain its officers and agents from giving interviews to newspapers of Cisco and elsewhere derogatory to this plaintiff by insinuation, innuendoes, or otherwise, upon the presentation of this application."

Plaintiff asked for a temporary writ of injunction first, and that a permanent injunction be granted upon final hearing. The appeal of the petitioner is predicated upon the refusal of the judge of the Eighty-Eighth judicial district court of Eastland county to issue the temporary restraining order.

The record discloses that notice was issued by the commissioners of the city of Cisco to appellant to appear before them and show cause why his license should not be revoked, and that appellant failed to appear or to make answer...