Reed v. City of Waco

• Decision Date: 27 July 1949
• Docket Number: No. 2875.,2875.
• Citation: 223 S.W.2d 247
• Parties: REED v. CITY OF WACO.
• Court: Texas Court of Appeals

Page 247

223 S.W.2d 247

REED v. CITY OF WACO.

No. 2875.

Court of Civil Appeals of Texas. Waco.

July 27, 1949.

Rehearing Denied September 22, 1949.

Sleeper, Boynton, Darden & Burleson, Waco, Peeler Williams, Jr., Waco, for appellant.

D. M. Wilson, City Attorney, Waco, Naman, Howell & Boswell, Waco, for appellee.

TIREY, Justice.

This is a suit (non-jury) for a declaratory judgment. Wallace Reed, a taxicab operator, brought the action against the City of Waco, a home-rule city, and alleged in effect that a certain ordinance of the City of Waco regulating taxicabs was invalid as a whole and as to each section thereof in that it contravened the terms of both the State and Federal Constitutions and he sought a judgment to that effect. He also sought a judgment declaring unconstitutional Article 6698, Vernon's Ann. Civ.St. Appellant sought to have the court issue its writ of injunction to restrain the enforcement of the ordinance. The trial court held against each of appellant's contentions and entered judgment favorable to the City. Plaintiff has perfected his appeal.

Appellant's first point is: "The ordinance * * * in all its sections, or in each section, violates the 14th Amendment to the Constitution of the United States, and Article 1, Section 3 and Section 19 of the Constitution of Texas [Vernon's Ann. St.] * * *."

Appellant's cause of action is grounded upon the invalidity of Article 6698, supra, and the ordinance of the City of Waco based thereon.

Said Article provides: "Municipal Regulation. The certificate of registration and numbering for purposes of identification, and the fees herein provided for shall be in lieu of all other similar registrations heretofore required by any county, municipality or other political subdivision of this state, and no such registration fees or other like burdens shall be required of any owner of any motor vehicle or motorcycle by any county, municipality or other subdivision of the state. This provision shall not affect the right of incorporated cities and towns to license and regulate the use of motor vehicles for hire in such corporation. Nothing herein shall in anywise authorize or empower any county or incorporated city or town in this state to levy and collect any occupation tax or license fee on motorcycles, motor vehicles or motor trucks; provided, that such cities or towns are hereby authorized and empowered to levy and collect a city permit fee, not to exceed two (2%) per cent of the gross receipts per annum, for the operation of each motor vehicle transporting passengers for hire or a street rental charge based upon gross receipts, not to exceed two (2%) per cent per annum, for the operation of motor vehicles transporting passengers for hire, other than motor vehicles operating under a permit or certificate of the Railroad Commission in the State of Texas or the Interstate Commerce Commission; and provided further that nothing in this Article shall be construed as impairing or altering in any way the provisions relating to payments in any contracts, agreements, or franchises now in existence, or hereafter made between an incorporated city or town and the owners or operators of motor vehicles transporting passengers for hire."

The pertinent sections of the ordinance under attack provide in effect; Permit for the operation of a taxicab based upon a written application therefor; inspection of taxicab by City each thirty days with approval seal attached; inspection by the City at any time it deems advisable; finding of public convenience and necessity for taxicabs before the issuance of permit which requires in addition to a showing of public convenience and necessity a showing of financial responsibility, number and type of equipment, whether use of the streets will become unsafe and any other relevant matter; permits to be renewed from year to year, said permits being personal and not transferable; the operator of each taxicab to obtain a chauffeur's license which requires the showing of applicant's name, age, present address, address and place of employment during the past two years, with reasons for leaving, whether the applicant has been convicted of a felony or has a police record, and whether the applicant is suffering from any physical disability; affidavit of two reputable citizens attesting applicant's character, a certificate of the City Health Officer certifying applicant physically fit to operate a cab, the taking of applicant's fingerprints and photograph; prohibition of operation of cab by anybody except a licensed chauffeur, payment of a $5.00 fee, placing the chauffeur's license and photograph in the cab, certain acts or failure to act authorizing cancellation of chauffeur's license and authorizing Chief of Police, in his discretion, to take up license at any time; prescribing rates and fares to be charged and maintenance of terminals by cab operators; prohibiting operators to solicit transportation of passengers arriving on trains, planes or buses, and requiring cab drivers to remain seated in cab at all times while it is at a public stand; requiring approval of all street terminals by the Chief of Police; requiring insurance with approval of policy and company issuing it by City Attorney; requiring signs on taxicabs and precluding more than six persons riding in the cab, and prohibiting cab driver from driving continuously more than twelve hours; prohibiting cruising and solicitation of passengers and carrying except at rates specified in the ordinance; requiring a rate card to be displayed in the cab; permitting cancellation of license unless cab is operated under permit ten days out of each calendar month, and assessing what is designated as a permit fee of 2% of the gross receipts payable on the 15th day of each calendar month for the preceding calendar month, upon an accompanying sworn statement of receipts for the preceding month; authorizing the City to inspect the books of the cab operator; requiring the installation of taxi meters; requiring the payment of all ad valorem taxes and fixing the fare to be paid and requiring the passenger to pay the same. None of the foregoing burdens is required of the vehicles carrying freight operating on the streets of the City of Waco.

Testimony was tendered to the effect that Wallace Reed was a taxicab operator residing in the City of Waco, operating twenty taxicabs, two airport buses and one railroad bus; that there are sixty-eight taxicabs operating within the City; that the ordinance under attack makes no attempt to regulate parties transporting property for hire within the limits of the City, and that such parties operating motor vehicles transporting property are governed by the general traffic regulations of the City and the general statutes applicable to all motor vehicles alike; that there are approximately 500 trucks operating on the streets of the City of Waco engaged in the business of transporting property and that approximately 100 of such trucks were engaged in such business for hire for third parties, such trucks ranging from light to heavy delivery; that the ordinance regulates all taxicabs transporting passengers for hire in the City and defines the term "taxicab" as "every automobile or motor propelled vehicle used for transportation of passengers for hire over the public streets of the City of Waco, Texas, and not over a defined or fixed route"; that parties transporting freight or merchandise in the City do so in connection with their business of selling merchandise and they do not charge a fee for the delivery; that those who transport property for hire furnish the service of loading and unloading and delivering in connection with the service of transportation and the fee or charge includes all of those services; that such parties transporting property operate eight or ten hours a day; that plaintiff and the other taxicab operators operate twenty-four hours a day; that the charges for transporting property for hire are based on weight and size of the property transported and include services other than that of mere transportation; that those engaged in transporting property differ in their manner of operation and differ in the amount of charges made; that all of plaintiff's terminals and dispatch offices are in the City of Waco and 98% of the business is wholly within the corporate limits of the City, the remaining 2% either originating or terminating in the City; that all gross receipts upon which the amount of the permit fee is based are earned while operating under permission granted by the City; that the Police Department is charged with the responsibility of enforcing this ordinance; that this department has the specific duty to investigate and approve applicants for chauffeur's license; to see that prostitutes and criminals are not transported in taxicabs; to enforce the provisions against cruising and the soliciting of passengers; to enforce the provisions regulating the number of passengers that may ride in a taxi; to make investigations to determine the convenience and necessity of terminal locations; to make inspections as to sanitary conditions of the taxi terminals; to keep taxicab stands open for use of taxicabs; to enforce the provisions prohibiting drivers from operating for more than twelve hours a day; to inspect taxicabs to see if they have been licensed and bear the seal of inspection; to see that no taxicabs are operated which have not been licensed and to investigate complaints of improper or irregular fare; to enforce the provision prescribing fares, and to enforce the provision requiring each taxicab to have numbers on them.

That the City of Waco is comprised of 28¼ square miles with 41½ miles of paved streets, 111.2 miles of squeegee streets, 72 miles of graveled streets and 7 miles of dirt streets; that approximately 130 permits have been issued for the operation of taxicabs in the City and that an average of 68 taxicabs operate daily; that...