Villalobos v. Holguin

• Court: Texas Supreme Court
• Writing for the Court: Brewster
• Citation: Villalobos v. Holguin, 208 S.W.2d 871, 146 Tex. 474 (Tex. 1948)
• Decision Date: 11 February 1948
• Docket Number: No. A-1426.,A-1426.
• Parties: VILLALOBOS v. HOLGUIN et al.

208 S.W.2d 871

VILLALOBOS v. HOLGUIN et al.

No. A-1426.

Supreme Court of Texas.

February 11, 1948.

Rehearing Denied March 17, 1948.

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

Suit by Juan Villalobos, individually and as administrator of a deceased person's estate, against Miguel Holguin and others, for an injunction against defendant's operation of motor vehicles in regular transportation of passengers for hire between the city of El Paso and certain towns and villages without a certificate of public convenience and necessity from the Railroad Commission. A judgment for plaintiff was reversed and the cause remanded by the Court of Civil Appeals, and plaintiff brings error.

Affirmed in part, reversed in part, and cause remanded with instructions.

Burges, Scott, Rasberry & Hulse and J. F. Hulse, all of El Paso, for petitioner.

J. E. Quaid, of El Paso, for respondents.

BREWSTER, Justice.

This is an injunction suit filed by petitioner, Juan Villalobos, individually and as administrator of the estate of a deceased person, against respondents, Miguel Holguin et al. A trial court judgment for petitioner was reversed by the court of civil appeals and the cause was remanded, in an opinion not yet published.

Under a certificate of convenience and necessity from the Railroad Commission of Texas petitioner was operating as a common carrier, by motor vehicle, of passengers for hire between El Paso, Ysleta, Socorro, San Elizario and Clint, in El Paso County. He alleged that the respondents, operators of a jitney service, were transporting passengers for hire to and from the same towns and villages, but without any certificate from the Railroad Commission. The injunction was sought under authority of art. 1690a, Vernon's Ann.P.C., to prevent respondents from operating that business in violation of art. 911a, as amended, Vernon's Ann.Civ.St.

Without any sort of complaint from either side, only one issue was submitted to the jury: "Do you find from a preponderance of the evidence that the Defendants operate their motor propelled vehicles wholly within the limits of the City of El Paso, Texas, and the suburbs thereof? In this connection you are charged that the term, as used in this issue, `suburbs' is meant an outlying part of the City; or surrounding territory adjacent to the City." The answer was "No."

The judgment enjoined respondents "from operating any motor propelled passenger vehicle for the regular transportation of persons as passengers for compensation or hire over any public highways of this state between the City Limits of the City of El Paso, Texas, and the Towns of Ysleta, Socorro, San Elizario and Clint and all intermediate points between said cities and towns" until such time as they may secure a certificate of convenience and necessity from the Railroad Commission.

Art. 911a, supra, provides for the regulation of motor bus transportation. Sec. 1(c) defines a motor bus company as "every corporation or persons as herein defined, * * * operating * * * any motor propelled passenger vehicle not usually operated on or over rails, and engaged in the business of transporting persons for compensation or hire over the public highways within the State of Texas, whether operating over fixed routes or fixed schedules, or otherwise." Then it provides that the term "shall not include corporations or persons, * * * insofar as they * * * operate * * * motor propelled passenger vehicles operated wholly within the limits of any incorporated town or city, and the suburbs thereof, whether separately incorporated or not." (Italics ours.) Sec. 5 provides that no motor bus company "shall hereafter regularly operate for the transportation of persons as passengers for compensation or hire over the public highways of this State" without first having obtained a certificate from the Railroad Commission that public convenience and necessity require that it so operate.

Art. 1690a, sec. (c), Vernon's Annotated Penal Code, provides that one operating without a certificate of convenience and necessity may be enjoined on the application of any one who does hold such a certificate over the route affected.

On original consideration the court of civil appeals affirmed the judgment of the trial court. On rehearing, in a divided opinion, that court reversed the trial court judgment because it enjoined respondents from operating anywhere but in the city limits of El Paso, without any finding that there was no suburban territory outside those limits. This holding was based on the theory that respondents, under art. 911a, sec. 1(c), supra, can lawfully operate not only within the city limits but also in the suburbs of the city without any certificate of convenience and necessity.

Petitioner presents eight points of error, seven of which variously attack that court's construction of Sec. 1(c), supra. The basic contention is that since respondents were not operating wholly within the City of El Paso and its suburbs, they could not operate anywhere without a certificate from the Railroad Commission. We are not in accord with that proposition.

Art. 911a relates to the power of the state to regulate motor bus companies in the transportation of passengers for hire. It confers that power upon the Railroad Commission and prescribes how it shall be exercised. Obviously, before the Commission could know the bounds of its powers, it was necessary for the Legislature, among other things, to define the term "motor bus company." That is accomplished by means of Sec. 1(c) which defines the term and then prescribes that it shall not include persons insofar as they operate motor propelled passenger vehicles operated wholly within the limits of an incorporated city and its suburbs. It is reasonable to assume that exception was made in deference to the fact that cities and towns had long been empowered to license persons transporting passengers for hire within their boundaries. See art. 1015, sec. 36, and art. 1175, sec. 21, R.S. 1925. In fact, art. 911a expressly recognizes the exception as to home rule cities when it provides in section 2 "that nothing in this Act or any provision thereof shall be construed or held to in any manner affect, limit, or deprive cities and towns from exercising any of the powers granted them by Chapter 147, pages 307 to 318 inclusive, of the General Laws of the State of Texas, passed by the Thirty-third Legislature, or any amendments thereto."

In City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W.2d 695, 698, 154 A.L. R. 1434, it was held that Bowen's right to operate on a state highway under a certificate of convenience and necessity ceased after the city annexed the highway, because Sec. 1(c), supra, "operates to deny the Railroad Commission the power to regulate local business done by Motor Bus Companies" within the corporate limits of an incorporated city or town. That case presented only the question of the city's powers as to bus company operations within the corporate limits, so we did not pass on the question in relation to the suburbs of an incorporated city; but we see no...