West v. City of Waco

• Decision Date: 04 May 1927
• Docket Number: (No. 4463.)
• Citation: 294 S.W. 832
• Parties: WEST et al. v. CITY OF WACO et al.
• Court: Texas Supreme Court

294 S.W. 832

WEST et al. v. CITY OF WACO et al.

(No. 4463.)

Supreme Court of Texas.

May 4, 1927.

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

Suit by Henry West and others against the City of Waco and others for an injunction. Judgment sustaining general demurrer to petition was affirmed by the Court of Civil Appeals (275 S. W. 282), and plaintiffs bring error. Affirmed.

J. A. Kibler, of Waco, for plaintiffs in error.

John McGlasson and W. L. McConnell, both of Waco, for defendants in error.

PIERSON, J.

For a statement of the case we quote the following from the opinion of the honorable Court of Civil Appeals, 275 S. W. 282:

"This suit was instituted by appellants, 44 in number, against the city of Waco, its mayor, city commissioners, and city manager, seeking an injunction to prevent the enforcement of the following ordinance passed by the city commissioners of the city of Waco:

"`Section 1. It shall hereafter be unlawful to park vehicles operated for hire upon any of the public square in the city of Waco.

"`Section 2. By the term "vehicle operated for hire" shall include all vehicles used and operated for the purpose of transporting passengers, freight, household furniture or any other kind of personal property, for which a fee or other remuneration is paid or received for said transporting or use of said vehicle.'

"Section 3 provides a penalty for violation of the ordinance not to exceed $200.

"Appellants alleged that no other ordinance had ever been passed by the commissioners of the city of Waco which in any manner prohibited the parking of wagons, automobiles, trucks, or any character of vehicle on the public square, and that the public generally were using the square as a public mart and market place for parking teams and all kinds of vehicles, and that said public square had for 75 years been used as a public square, where all kinds of business had been and could be carried on by all classes of citizens.

"Appellants alleged that they were `engaged in the moving and transfer business and used their said trucks for transporting household furniture and other character of personal property, and charged fees therefor, using their personal service and labor in such business; that the aggregate value of their said trucks so used in said business is more than the sum of $10,000, and if the plaintiffs are denied the right and privilege of parking their said trucks on said public square, as provided by the terms of said ordinance, their said business will be greatly damaged, if not practically destroyed.' They alleged that their trucks were the same size as other trucks used by other classes of people who parked on the public square. They alleged that the ordinance was void and its enforcement should be restrained:

"`(a) Because it is unreasonable, arbitrary, oppressive and an unwarranted invasion of the plaintiffs' personal liberties * * * and is an unwarranted restriction in the pursuit of the business in which the plaintiffs are engaged.

"`(b) Because the same constitutes and is class legislation, in that it discriminates against the plaintiffs and in favor of all others of the general public who use or may desire to use said public square for the purpose of parking their trucks or vehicles.

"`(c) Because it violates section 3 of article 1 of the Constitution of the state of Texas.

"`(d) Because it will destroy plaintiffs' business, by reason of the fact that there is no other public market place or public stand within the business district of the city of Waco convenient and accessible to the public which can or could be used by plaintiffs for parking their said trucks, and that the enforcement of the ordinance will force plaintiffs out of business.'

"Appellants prayed for an injunction restraining appellees from enforcing said ordinance. The trial court sustained a general demurrer to appellants' petition.

"The city of Waco is operated under the commission form of government, under the Home Rule Amendment, and it is admitted by appellants that the square was conveyed to the city of Waco for public use, and that the city has the same right to control the public square as it has to control any of the streets within its corporate limits."

In discussing the case the court says.

"So far as we have been able to find, the courts uniformly hold that the individual citizen has no vested right in the streets of a city, and that the governing body of the city has, within reasonable limits, the right to control the use of its streets in any way that it determines is for the best interests of the public. It is now the established law in this state that the city has a right to prohibit by ordinance the barter and sale of all kinds of merchandise on its public square or streets, and that excepting from said ordinances farm products, sold by the party who produces same, is not class legislation. Ex parte Bradshaw, 70 Tex. Cr. R. 166, 159 S. W. 259; Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668; Ex parte Henson, 49 Tex. Cr. R. 177, 90 S. W. 874; Ex parte Hogg, 70 Tex. Cr. R. 161, 156 S. W. 931. * * *

"Appellants by the allegations in their petition show that they are engaged in the business of running and operating trucks in the nature of moving vans and wagons for hire transporting merchandise, household goods and such like from one point to another within the corporate limits, and that they...