Prater v. Storey

• Citation: 249 S.W. 871
• Decision Date: 01 March 1923
• Docket Number: (No. 2703.)
• Parties: PRATER et al. v. STOREY.
• Court: Court of Appeals of Texas

249 S.W. 871

PRATER et al. v. STOREY.

(No. 2703.)

Court of Civil Appeals of Texas. Texarkana.

March 1, 1923.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Suit by Walter Storey against U. W. Prater and others for an injunction. A temporary injunction was granted, and defendants appeal. Reversed and rendered.

The appeal is from an order of the district judge made at chambers granting a temporary injunction. The appellee filed a petition praying for an injunction restraining appellants, who are respectively the city manager, the city attorney, and the chief of police of the city of Tyler, from enforcing an order of the city manager suspending his license or permit to operate an automobile for hire. The petitioner claims interference in and deprivation of the right to the free pursuit of his business, predicated upon the invalidity of the ordinance herein below set out. The case was submitted to the judge on the petition and the answer.

It appears that the city of Tyler is a municipal corporation created and existing by virtue of the general laws of the state, having, on the 6th day of April, 1915, adopted a charter under the provisions of Acts 1913, p. 307 (Vernon's Sayles' Ann. Civ. St. 1914, arts. 1096a-1096i). It has the commission form of government, with a city manager as the chief administrative officer. The charter, it appears, specially provides, among others, the following particular powers of the city of Tyler:

"May license and regulate persons, corporations and associations engaged in any business, occupation, profession, or trade, and may define, prohibit, abate, suppress and prevent all things detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the city and all nuisances and causes thereof."

"May assess, levy and collect taxes for general and special purposes on all the objects or subjects which the city may lawfully tax."

"May regulate and control the use for whatever purpose, of the streets and other public places."

"May make and enforce local police, sanitary and other regulations, and may pass such ordinances as may be expedient for maintaining and promoting the peace, good government and welfare of the city, and for the performance of the functions thereof."

The charter further provides:

"Sec. 11. The commission shall consist of unpaid members, and shall elect its own chairman. The commission shall meet once a month, and oftener on the call of the manager, as hereinafter provided for, or on the call of two commissioners. The commission shall see that all ordinances necessary and proper for carrying out the powers and duties herein specified are passed, and that they are enforced by the manager."

"Sec. 3. The commission shall constitute the governing body, with powers as hereinafter provided to pass ordinances, adopt regulations, and appoint a chief administrative officer to be known as the `city manager,' and exercise all powers hereinafter provided."

"Sec. 46. The powers and duties of the city manager shall be:

"(a) To see that the laws and ordinances are enforced;

* * * * * *

"(g) To perform such other duties as may be prescribed by this charter or be required of him by ordinance or resolution of the commission."

"Sec. 12. The city manager shall be the chief executive officer of the city."

An ordinance duly adopted by the commission provided for and required the issuance, on payment of a specified sum of money, of a license, for the period of one year, to a person to operate an automobile for hire in the city of Tyler. The following ordinance was duly adopted by the commission:

"An ordinance authorizing and directing the city manager to suspend the license and service of any operator of any vehicle for hire in the city of Tyler guilty of misconduct; providing for a hearing before the commission and procedure therefor; providing for the refund of the unexpired portion of the license of such operator; making it unlawful for any operator to operate any vehicle for hire in the city of Tyler after his license or service shall have been revoked; providing for a penalty and providing for an emergency.

"Section 1. That hereafter the city manager be, and he is hereby, authorized and directed to suspend the permit or license of any owner or operator of any vehicle for hire in the city of Tyler, or order any employee of any such license holder to discontinue driving a vehicle for hire, when such owner, driver, operator or employee shall have been drunk, or shall have violated any of the traffic ordinances of said city, or shall have been guilty of misconduct or recklessness which, in the opinion of the city manager, unfits him for such service to the public; when, in his discretion, the city manager deems it necessary or advisable to suspend the license of any such person, or orders any such employee to discontinue such service, he shall give notice to such person in writing signed by him, that the license of such person is suspended, or that the employee is so ordered to suspend such service, as the case may be, stating the reason therefor, and such notice shall be served either personally or deposited in the mail; such notice shall be accompanied by a specification of the charges against him by the city manager and a notice of the time and place of the next regular meeting of the commission, at which time such person may appear before the commission and contest such charge or charges, having the right to introduce evidence and be heard personally and by counsel; if such charge or charges, in the opinion of the commission, be not sustained, the commission may, by order entered upon its minutes, set aside the city manager's order of suspension of such license, or order suspending such employee from such service; if such charges, in the opinion of the commission, be sustained, the commission may, by order entered upon its minutes, revoke such license or make permanent such order of the city manager suspending such employee from such service, and the same shall be final and no appeal allowed therefrom.

"A copy of such notice accompanied by a voucher or check of the city of Tyler making a refund to any such license holder of an amount bearing the proportion to the original amount paid for such permit or license as the unexpired portion of such permit or license, if any, bears to the period for which it was issued, shall be served on such person, but the failure to make such refund at such time, or the failure or refusal of such person to accept the same, shall not affect the order or notice revoking said permit or license.

"Section 2. That after the license of any such person shall have been revoked by the city manager, or after such employee is so ordered to suspend such service by the city manager, and before the same is set aside by the commission, or after the commission has sustained the city manager's action in such case, it shall be unlawful for any such person to operate any vehicle for hire or offer to do so on any street, avenue or alley of the city of Tyler and any such person convicted of doing so shall be deemed guilty of a misdemeanor and shall be fined in any sum not less than ten nor more than two hundred dollars.

"Section 3. That there is now no provision in the ordinances of the city of Tyler authorizing and empowering the city manager to suspend the license or service of any operator of a vehicle for hire upon misconduct, and as the safety of the public demands such a provision, an imperative public necessity and emergency exists, and...