Slater v. City of El Paso

• Decision Date: 24 October 1951
• Docket Number: No. 4836,4836
• Citation: 244 S.W.2d 927
• Parties: SLATER v. CITY OF EL PASO et al.
• Court: Texas Court of Appeals

Page 927

244 S.W.2d 927

SLATER v. CITY OF EL PASO et al.

No. 4836.

Court of Civil Appeals of Texas, El Paso.

Oct. 24, 1951.

Rehearing Denied Nov. 14, 1951.

Second Rehearing Denied Dec. 12, 1951.

A. L. Poage, Alex Silverman, El Paso, for appellant.

Travis White, City Atty., H. E. Brockmoller, Asst. City Atty., El Paso, for appellees.

McGILL, Justice.

Appellant brought this suit against the City of El Paso, a municipal corporation, its Mayor and Chief of Police, seeking to enjoin the city and such officers from enforcing a city ordinance (No. 500) prohibiting the solicitation of orders or subscriptions of any book, magazine or periodical on the streets, alleys or parks within a certain defined portion of the business district of the city of El Paso. On final hearing the trial court refused to grant any injunctive relief and awarded judgment for $250 against appellant on a bond filed by him on the issuance of a temporary restraining order.

Appellant is a resident of California. He is engaged in the business of soliciting and obtaining subscriptions to certain magazines and periodicals of national scope, such as Liberty, Look, Quick, Florida Queen, International Sportsman, Golfer and Sportsman, Popular Mechanics, and others. He operates by crews of salesmen and saleswomen who travel from state to state and from city to city, carrying on their campaigns of solicitation therein at irregular intervals. Subscriptions obtained are sent to the publishers and the publications delivered to the subscribers both within and without the State of Texas. The evidence is ample to show that these crews while operating in the prohibited district of the city of El Paso had seriously disrupted traffic on the streets and sidewalks by stopping pedestrians and causing groups to congregate on the sidewalks to such an extent that other pedestrians were compelled to abandon the sidewalks and take to the streets in order to pass.

Appellant attacks the ordinance because (1) it is arbitrary, discriminatory and unconstitutional under the Fourteenth Amendment to the Federal Constitution and Article 1, Sections 3 and 19 of the Constitution of this State, Vernon's Ann.St.; (2) and also because it infringes his freedom of speech and of the press guaranteed him under the United States and Texas Constitutions, and (3) violates the Interstate Commerce clause of the United States Constitution. On oral argument appellant practically conceded that since the decision of the Supreme Court of the United States in Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233, decided June 4, 1951, he did not care to seriously argue his second (2) and third (3) points, although he did not waive them.

We think that opinion definitely put at rest any question of the validity of the ordinance in question here insofar as abridgement of freedom of speech and of the press, First and Fourteenth Amendments, and the Commerce clause, Art. 1, Sec. 8 of the Federal Constitution, are concerned. We shall therefore confine our opinion to a discussion of the first point (1). In this connection we should say at the outset that in our opinion the decision in Lammon v. City of San Antonio, Tex.Civ.App., 223 S.W.2d 533, (Wr. ref. n. r. e.) is an authoritative holding by the Supreme Court of this State that the trial court in this case committed no reversible error. The ordinance of the City of San Antonio which was before the court in that case differs in no material respect from the ordinance here involved, the only substantial difference being that the ordinance there prohibits the solicitation on a street or in a public place of the entire city, while the prohibition of the ordinance here applies only to streets, alleys or parks within a portion of the business district of the city. No legal distinction is suggested on this ground. The San Antonio Court of Civil Appeals based its decision upholding the judgment of the trial court refusing injunctive relief on two grounds-(1) because appellant failed to show that any right of his protected by the Fourteenth Amendment to the Constitution of the United States had been violated, and (2) because if appellant or his employees had good defenses to the charges filed against them they might be properly asserted in the criminal courts, citing State ex rel. McNamara v. Clark, 79 Tex.Cr.R. 559, 187 S.W. 760, in which it was held that in such a situation equitable relief by injunction should not have been granted. Both of these grounds on which the judgment of the San Antonio Court of Civil Appeals is based exist with equal force here. It is inconceivable that the grounds of the decision should not have been attacked in the application for the writ of error and considered by the Supreme Court. Therefore, the Supreme Court by refusing the writ, n.r.e., must necessarily have approved one or the other of these grounds. We should be content to stop here were it not for the fact that we realize that where the Fourteenth Amendment to the United States Constitution is involved we are bound to follow the decisions of the Supreme Court of the United States, and not those of the Supreme Court of this State if not in accord therewith. We shall therefore pursue the matter further.

Appellant readily concedes, as he must, that he has no inherent right to use the streets and sidewalks of the City of El Paso for the prosecution of his private business, and that such use may be regulated or prohibited by the municipality as it may deem best for the public good, so long as no discrimination is shown. Greene v. City of San Antonio, Tex.Civ.App., 178 S.W. 6, (wr. ref.).

In Schneider v. State (Town of Irvington), 308 U.S. 147, 60 S.Ct. 146, 152, 84 L.Ed. 155, the Supreme Court in holding invalid certain ordinances, which prohibited the distribution of any hand-bill to pedestrians upon the streets or sidewalks, said: 'We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation as the ordinance requires.'

The burden of appellant's complaint is that the ordinance shows discrimination on its face because by its terms it applies only to persons who solicit or accept orders for subscription 'for any book, magazine or periodical' and not to those who may solicit or accept orders for merchandise, such as a suit of clothes or other commodities of trade, or produce, nor does it prevent the sale of newspapers in the restricted area. Certain controlling rules relative to class legislation were announced by our Court of Criminal Appeals in Ex parte Tigner, 139 Tex.Cr.R. 452, 132 S.W.2d 885, affirmed Tigner v. State, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, which upheld our Anti-Trust Statute, Art. 1642, Penal Code, as against the...