Rainey v. City of Tyler
| Decision Date | 15 April 1948 |
| Docket Number | No. 6357.,6357. |
| Citation | 213 S.W.2d 57 |
| Parties | RAINEY v. CITY OF TYLER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Smith County; Nat W. Brooks, Judge.
Action by Joe Rainey against the City of Tyler, Tex., for money paid city by plaintiff under ordinance levying gross receipts tax on fares collected by plaintiff in operation of taxicab business. From an adverse judgment, plaintiff appeals.
Judgment affirmed.
Pollard, Lawrence, Blackburn, Reeves & Jarrel, of Tyler, for appellant.
Smith & Smith, of Tyler, for appellee.
Joe Rainey sued the City of Tyler in the District Court of Smith County, Texas, on May 7, 1947, to recover $9,020.07 paid to the City by him under an ordinance of the City which levied a 2% gross receipts tax on fares collected by him in the operation of his taxicab business. Rainey took the position that the ordinance in question was invalid, and that therefore the fees paid by him as required by the ordinance should be returned. The City, while asserting the validity of the ordinance under which the taxes were assessed against the business of operating taxicabs, pleaded limitation to the cause of action of Rainey as to any sums paid by him two years before May 7, 1945, and also pleaded that the taxes paid to the City by Rainey were voluntarily paid and, as a consequence, the City of Tyler was not obligated to return such payments made by him. The case was tried to the court without a jury, and from a judgment in favor of the City of Tyler, which denied Rainey the relief sought by him, he has perfected an appeal to this court.
In 1932, the City Commission of the City of Tyler adopted an ordinance regulating the operation of automobiles for hire on the streets of the city, which ordinance among other things provided for the licensing of such automobiles without payment of any fee therefore. Joe Rainey, and others, engaged in the operation of taxicabs pursuant to the regulations of the ordinance in question; the permits required by the ordinance were issued to them on the taxicabs that they operated, and they complied with other provisions of the ordinance. Rainey was operating his taxicab business in the City of Tyler prior to June 4, 1943, in compliance with the city ordinance of 1932. At some time in May or June, 1943, Rainey appeared before the City Commission of the City of Tyler and offered to pay 2% of the gross receipts from the operation of his taxicab business if the City would grant him a franchise to operate taxicabs. At that time he presented to the City a draft of a proposed ordinance, which was prepared by his own attorney, which provided for the payment to the City of 2% of the gross receipts derived from the operation of taxicabs within the city limits; this franchise ordinance did not grant him an exclusive right to engage in such business. The ordinance in addition provided that a failure to pay the gross receipts tax by taxicab operators would forfeit their permits to operate their cabs. The City Commission, pursuant to Rainey's proposal, passed the franchise ordinance which he presented to them and he was granted additional permits covering other cabs. He was operating approximately fifteen cabs at the time of the passage of the ordinance, which number he later increased to twenty-five. He paid the gross receipts tax each month as it became due, with the exception of a few delinquent payments, and he was never threatened with any suit or penalty if he did not pay the tax, or by reason of payments that became overdue. At no time did Rainey protest the payment of the gross receipts tax.
In regard to the point presented by Rainey that the ordinance levying the tax in question was invalid by reason of its being in conflict with Article 6698, R.C. S. of Texas, Vernon's Ann.Civ.St. art. 6698, which pre-empts to the State of Texas the right to levy motor vehicle license taxes, a case involving the same question of law, L. F. Boone v. City of Tyler, Tex.Civ.App., 211 S.W.2d 761, this day has been disposed of by this court (in the opinion written by Justice Williams). Therein it was held under authority of the case of LeRoy Crow v. City of Corpus Christi, 209 S.W.2d 922, 923, a decision by the Supreme Court of Texas delivered on March 24, 1948, which was based upon previous holdings of that court, that an ordinance of the type under consideration herein was invalid and unconstitutional in so far as the levy and collection of tax or license fees are concerned. Consequently, with respect to that phase of the case appellant's point relating to the invalidity of the Tyler city ordinance is sustained.
In the case of L. F. Boone v. City of Tyler, supra, it was held that...
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Hunt County Tax Appraisal Dist. v. Rubbermaid Inc.
...by the trier of fact. Jay v. Devers, 563 S.W.2d 880 (Tex.Civ.App.--Eastland 1978, no writ); Rainey v. City of Tyler, 213 S.W.2d 57 (Tex.Civ.App.--Texarkana 1948, writ ref'd n.r.e.). Rubbermaid further contends that, since it can be inferred that the trial court made an implied finding that ......
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