Waid v. City of Fort Worth

• Decision Date: 10 November 1923
• Docket Number: (No. 10802.)
• Citation: 258 S.W. 1114
• Parties: WAID et al. v. CITY OF FORT WORTH.
• Court: Texas Court of Appeals

258 S.W. 1114

WAID et al. v. CITY OF FORT WORTH.

(No. 10802.)

Court of Civil Appeals of Texas. Fort Worth.

November 10, 1923.

Rehearing Denied December 8, 1924.

Writ of Error Refused January 23, 1924.

Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.

Suit by E. C. Waid and others against the City of Fort Worth. From an order dissolving an injunction, plaintiffs appeal. Affirmed.

Mays & Mays, of Fort Worth, F. M. Chaney, of Dallas, and Simpson, Moore & Parker, of Fort Worth, for appellants.

Rhinehart Rouer and Gillis A. Johnson, both of Fort Worth, for appellee.

CONNER, C. J.

This suit was instituted by E. C. Waid, B. D. Yates, and F. M. Waid, acting for themselves and for all those similarly situated and engaged in similar business, on the 3d day of August, 1923, to enjoin the enforcement of Ordinance No. 936, duly enacted and promulgated by the board of commissioners of the city of Forth Worth, prohibiting the operation of motor busses along, across, or upon specified streets of the city. The city responded to the action through its duly constituted authorities by filing a motion to dissolve the injunction, which, upon a hearing on the 14th day of August, 1923, was dissolved by the judge of the Sixty-Seventh judicial district, to which the case had been transferred, and this appeal is from said order of dissolution. We should perhaps first notice an objection not going to the merits.

Error is assigned to the action of the trial judge in refusing to grant an application for a change of venue to another county. The application is in strict compliance with Rev. Statutes, art. 1912, which provides that a change of venue may be granted in any civil cause pending upon the application of either party, supported by his own affidavit and the affidavit of at least three credible persons, residents of the county in which the suit is pending, for any of the reasons specified in the article. The ground specified in the application was:

"That there is a combination against him instigated by influential persons, by reason of which he cannot expect a fair and impartial trial."

Generally speaking, when an application of the kind is uncontroverted, it is the duty of the court, as a matter of law, to grant the application and change the venue. See article 1913, Rev. Statutes; Ellis v. Stearns (Tex. Civ. App.) 27 S. W. 222; Freeman v. Ortiz (Tex. Civ. App.) 136 S. W. 113. We are of the opinion, however, that the articles of the statutes and authorities cited have no application to the present proceeding.

In the bill of exception taken to the action of the court, it is recited that when the cause was called for trial upon the motion to dissolve, the appellants requested a jury trial, which was refused. It was further recited that the granting of the temporary writ and the trial of the motion to dissolve occurred in the summer vacation of the court, and that no jury would be available until the third Monday in September, thereafter, and that after the demand had been refused appellants immediately filed their application for a change of venue.

In the application for the change of venue no ground of disqualification of the trial judge is urged, and the bill of exception seems to justify the inference that the desire for the change was either to thus secure a delay or to have the opportunity for a jury trial. It is to be remembered that the trial upon the motion to dissolve was not upon the merits, but interlocutory in character, and we know of no authority, and none has been cited in behalf of appellants, which, in such a proceeding, entitles a party, as a matter of right, to a trial by jury. As shown, the court was sitting in vacation, the order appealed from is interlocutory, and is reviewable here only because of the express provisions of the statutes authorizing an appeal from orders granting, refusing, or dissolving temporary writs of injunction. No appeal is allowed from an order of the court overruling an application for a change in venue. We accordingly overrule appellants' assignment and propositions relating to this matter.

But did the court err, as assigned, in dissolving the temporary injunction? The ordinance in question is not attacked because of a want of any formality in its enactment. It is attacked on the ground that it is unreasonable, oppressive, and discriminatory, and that the effect of its operation would be to wholly exclude the appellants from carrying on a lawful and peaceable business, and destroy their property rights and subject them to fines and imprisonment. It is further charged that the effect of the ordinance will be to produce a monopoly in favor of the Northern Texas Traction Company and to deprive appellants, who are engaged in the transportation of passengers for hire, of pursuing a lawful business granted to them by the state of Texas.

The pleadings and evidence show without dispute that appellants are engaged in transporting passengers for hire in automobiles between the cities of Fort Worth and Dallas, and intermediate points. The ordinance by its definitions brings appellants within its scope and prohibits the operation of any automobile, truck, or motor vehicle engaged in the business of carrying passengers for hire within the city limits of Fort Worth, over, along, or upon or across Main, Houston, Commerce, Jones, Throckmorton, Front streets, and the Dallas pike; all streets named, except Front street, extend from north to south through the business district and connect with Front street, which extends from the Texas & Pacific station in an easterly direction until its conjunction with the Dallas pike, which is a macadamized highway. Section 5 of the ordinance reads as follows:

"The present crowded and congested condition of the traffic on the streets and portions of streets hereinbefore mentioned, and the constantly increasing number of automobiles and the vehicles using said streets, and portions of streets, hereinbefore named, create a dangerous condition and menace to life and property, thereby making it imperatively necessary to adopt and enforce the regulations herein described; and this ordinance is, and is hereby declared to be, an emergency measure necessary in the ordinary course of the city's affairs, and a measure necessary for the immediate preservation of the citizens of the city of Fort Worth, and shall be in force and effect from and after its passage, and five days publication, as required by law."

The evidence upon the hearing undoubtedly warranted the conclusion on the part of the trial judge that the streets named were, especially at times, congested with the ordinary traffic of the city, and that especially Front street and the Dallas pike to the city limits were badly congested. The city of Fort Worth is acting under a special charter granted by the Thirty-First Legislature in 1909 (Sp. Laws 1909, c. 31). By the terms of the act all courts and tribunals are required to take judicial cognizance of its provisions, and by chapter 2, § 21 of the charter, it is provided that —

"The board of commissioners of said city shall be vested with the power and charged with the duty of making all laws or ordinances not inconsistent with the Constitution of this state, touching every object, matter and subject within the local government instituted by this act."

Section 4 of chapter 9 of the Charter empowers the board of the commissioners of the city —

"to enact and enforce ordinances necessary to protect health, life and property, and to prevent and summarily abate and remove nuisances of all kinds and descriptions, and to preserve and enforce the good government, order and security of said city and of its inhabitants, and have and enjoy general police powers of a city."

And in chapter 4, relating to streets and sewers, among other things, it is specially provided that the board of commissioners shall have the power —

"to prevent the incumbering of the streets, alleys, sidewalks, and the public grounds with carriages, wagons, carts, hacks, buggies or any vehicle whatever," etc.

It seems quite plain to us that the control of the streets of the city is not only within the general police powers of the organization, but also that such power has been, in the instance before us, expressly conferred by the charter of the city granted by the Legislature. In treating of this subject, the San Antonio Court of Civil Appeals, in the case of Greene v. City of San Antonio, 178 S. W. 6, speaking through Chief Justice Fly, said:

"The streets belong to the public, the city being its trustee, and no private individual or corporation has a right to use such streets for the prosecution of a business without the consent of the trustee and a compliance with the conditions upon which the permission to so use them is given. There could be no greater use of the streets for business purposes than that in which appellant is engaged. He must move swiftly along the streets, obstructing the passage, to some extent at least, of those who have a vested right to use the streets for passage, from point to point, he will, by building up and conducting his private business entirely on the streets, be wearing and wasting that which was primarily intended for the passage of persons along the streets, and to obtain these great privileges he must comply with the conditions fixed by the city of San Antonio."

The same court, in the case of City of San Antonio v. Stokes, 246 S. W. 706, again speaking through the same able judge had this to say:

"Although every question involved in this case has been settled by this court and other courts, both of this state and of other states time and again, the writ of injunction prayed for was granted, and appellants have appealed * * * and this court declared in terms too plain to be misconstrued or misunderstood that the city of San Antonio has the absolute control over its streets and has the constitutional power to regulate the use of...