Payne v. Massey

• Decision Date: 01 August 1945
• Docket Number: No. 11736.,11736.
• Citation: 190 S.W.2d 419
• Parties: PAYNE v. MASSEY et al.
• Court: Texas Court of Appeals

190 S.W.2d 419

PAYNE v. MASSEY et al.

No. 11736.

Court of Civil Appeals of Texas. Galveston.

August 1, 1945.

Rehearing Denied November 15, 1945.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by J. W. Payne against Otis Massey and others to restrain the City of Houston from enforcing a penal ordinance regulating the operation of taxicabs within city limits and for a declaratory judgment. From an order sustaining special exceptions to the petition on ground that it did not state a cause of action entitling plaintiff to injunctive relief sought, plaintiff appeals.

Judgment affirmed.

Charles Murphy, of Houston, for appellant.

Lewis W. Cutrer, City Atty., and George W. Eddy, First Asst. City Atty., both of Houston, for appellees.

MONTEITH, Chief Justice.

This is an appeal from an order of the district court of Harris County sustaining certain exceptions to a petition in an action brought by appellant, J. W. Payne, to restrain the City of Houston from enforcing a penal ordinance regulating the operation of taxicabs within its city limits and for a declaratory judgment under the Uniform Declaratory Judgment Act of this State, Article 2524—1, §§ 1, 2, Vernon's Ann. Civil Statutes.

Appellant alleged that he had been engaged in the taxicab business in the City of Houston for many years and that, in January, 1945, he had tendered to the City of Houston, through its officers, the full sum of $35 for a permit on each of certain taxicabs operated by him for the year 1945, but that the City had refused to accept such tender in full and had permitted him to pay only the sum of $8.75 for each taxicab for which he held permits and that he thereby became a licensee under and by virtue of the ordinances of the City of Houston.

By special exception appellee alleged that it affirmatively appeared from plaintiff's petition that he was not at that time a licensee qualified to engage as a taxicab operator in the City of Houston and could, therefore, not be heard to complain of an ordinance regulating and controlling the operation of taxicabs therein; that his petition failed to state a cause of action entitling him to an injunction because it failed to allege that plaintiff had a property right in and to the use of the City's streets and thoroughfares to conduct his private business as a taxicab operator, and that as a matter of law appellant had no vested property rights therein.

The trial court sustained the City's special exceptions, holding that appellant had not stated a cause of action entitling him to the injunctive relief sought. Appellant has appealed from this order.

The ordinance, the enforcement of which is sought to be enjoined, is penal in its nature. It provides for an annual street rental charge of $60, payable in advance, for each taxicab operated over the City's streets for which a certificate or license has been issued, and that "it shall be unlawful for anyone to drive or operate a taxicab upon and over the streets of Houston unless such rental charge has been paid thereon and a permit, certificate or license issued thereon. * * *" The ordinance was passed and approved on March 28, 1945, at which time the payment of the street rental charge in the amount of $60 per annum became a condition to the right to operate a taxicab over the City's streets and thoroughfares. Appellant's petition was filed on April 10, 1945, approximately thirteen days after the adoption of the ordinance. It is admitted in his original petition that he had only paid the sum of $8.75, a quarter of the then annual fee of $35 required under the ordinance for the operation of each taxicab. It is thus obvious that appellant was only licensed to operate his taxicab for the first three months of 1945 and that thereafter, unless he paid the proportionate balance of the...