Payne v. Massey

• Decision Date: 10 July 1946
• Docket Number: No. A-773.,A-773.
• Citation: 196 S.W.2d 493
• Parties: PAYNE v. MASSEY et al.
• Court: Texas Supreme Court

Page 493

196 S.W.2d 493

PAYNE v. MASSEY et al.

No. A-773.

Supreme Court of Texas.

July 10, 1946.

Rehearing Denied October 23, 1946.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by J. W. Payne against Otis Massey and others to restrain the enforcement of an ordinance of the City of Houston regulating the operation of taxicabs within the city limits and for a declaratory judgment. To review a judgment of the Court of Civil Appeals, 190 S.W.2d 419, affirming the judgment of the district court, J. W. Payne brings error.

Reversed and remanded.

Charles Murphy, A. F. Sundermeyer, Gammage & Gammage, and Earl Gammage, all of Houston, for petitioner.

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

FOLLEY, Justice.

This suit was filed by the petitioner, J. W. Payne, against the City of Houston and others to restrain the enforcement of a city ordinance regulating the operation of taxicabs within the city limits of Houston and for a declaratory judgment fixing the rights, status and other legal relations between the petitioner and the city.

Houston is a home rule city, duly incorporated and operating as such under the Constitution and statutes of this state.

The petitioner alleged that for many years he had been engaged in the taxicab business in Houston and had tendered to the city the sum of $35 for a permit upon each taxicab operated by him for the year 1945, which was the required fee prior to the passage of the ordinance in controversy, but that the city had refused to accept the same and demanded of him an annual fee of $60 for each taxicab, which charge was described in the ordinance as a street rental charge for the use of the public streets. At the time the suit was filed the trial court issued a temporary restraining order against the city as prayed for by the petitioner.

By special exceptions the city urged that it appeared from Payne's petition that he was not a licensee qualified to operate taxicabs in the City of Houston and therefore could not be heard to complain of the ordinance since he possessed no property right in the use of the streets in the conduct of his private business. The trial court sustained these exceptions and denied permanent injunctive relief, however, pending the appeal the original restraining order was continued in effect until the final determination of the cause. The Court of Civil Appeals affirmed the judgment of the trial court. 190 S.W.2d 419.

The ordinance sought to be enjoined seeks to regulate the operation of taxicabs in the City of Houston. It requires certain records to be kept and reports to be filed with the city council, and prohibits any change in rates without the written consent of the city council. It also requires the payment of an annual street rental charge of $60 for each taxicab operated upon the streets of Houston, and makes it unlawful for anyone to "drive or operate a taxicab upon or over the streets of Houston unless such street rental charge has been paid thereon and a permit, certificate, or license issued thereon". It further provides that the unearned portion of any and all license fees on all taxicabs paid before the passage of the ordinance shall be deducted from the street rental charge due under the new ordinance. A fine of $200 is provided for each violation of any part of the ordinance, and in addition thereto the taxicab operator's license certificate or permit may be suspended, revoked or cancelled by the Director of Utilities of the City of Houston.

There is nothing in the pleadings to indicate a situation comparable to that in Fleming v. Houston Lighting & Power Co., 135 Tex. 463, 138 S.W.2d 520, 143 S.W.2d 923, where this court held that a municipality might lawfully impose a gross receipts tax against a public utility company as a charge for the use of the streets. In that case there was a permanent occupation and appropriation of certain portions of the streets to the exclusion of the general public, which is not true here.

Municipalities are creatures of our law and are created as political subdivisions of the state as a convenient agency for the exercise of such powers as are conferred upon them by the state. They represent no sovereignty distinct from the state and possess only such powers and privileges as have been expressly or impliedly conferred upon them. All acts done by them must find authority in the law of their creation. City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143; Southwestern Telegraph & Telephone Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321; Southwestern Telegraph & Telephone Co. v. City of Dallas, Tex.Civ.App., 174 S.W. 636, writ refused, error dismissed 248 U.S. 590, 39 S.Ct. 7, 63 L.Ed. 435; Walker v. City of Richmond, 173 Ky. 26, 189 S.W. 1122, Ann.Cas. 1918E, 1084.

It is well settled as a general rule that municipalities have the power to regulate the use of their streets, and may enact valid rules and regulations for the government of motor vehicles within their borders, so long as they are not in conflict with or repugnant to legislative enactments governing the use of such vehicles; but that such ordinances are invalid if they are in conflict with statutes relating to the subject. 21 A.L.R. 1186.

There is no doubt that under Sections 12, 20, and 21 of Art. 1175, Vernon's Ann.Civ.St., the City of Houston is authorized to regulate, license, and fix charges or fares to be made by any person owning, operating or controlling any vehicle of any character used for the carrying of passengers for hire, or the transportation of freight for hire on the public streets of the city. But in view of the provisions of Art. 6698, Vernon's Ann. Civ.St., the power of the municipality to license motor vehicles does not include the authority to charge a fee for that license.

A license is merely a permit or privilege to do what otherwise would be unlawful. The object of a license is to confer a right or power which does not exist without it. A license fee is the sum exacted for the privilege of carrying on a particular occupation or business, and it may be imposed either for regulation under the police power or for revenue, or for both regulation and revenue. 37 C.J. 168, §§ 3, 4 and 5; 33 Am.Jur. 325, § 2.

Article 6698 is a part of Section 2, of Title 116, Chapter 1, Vernon's Ann. Civ.St., dealing with the regulation and registration of motor vehicles. Under such title the state exacts a license or registration fee which is a privilege tax in the nature of a license or toll for the use of the highways of this state. Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., Vol. 1, §§ 212, 213, 214. Article 6698 provides that license fees and certificates of registration required by the state shall be in lieu of all similar registrations, and that "no such registration fees or other like burdens" shall be required of the owner of any motor vehicle by any county, municipality, or any other subdivision of the state. It further provides that such provision shall not affect the right of incorporated cities and towns to license and regulate...