Yellow Cab Transit Co. v. Tuck, 12603.

• Decision Date: 05 February 1938
• Docket Number: No. 12603.,12603.
• Citation: 115 S.W.2d 455
• Parties: YELLOW CAB TRANSIT CO., Inc., v. TUCK et al.
• Court: Texas Court of Appeals

115 S.W.2d 455

YELLOW CAB TRANSIT CO., Inc., v. TUCK et al.

No. 12603.

Court of Civil Appeals of Texas. Dallas.

February 5, 1938.

Rehearing Denied February 26, 1938.

Appeal from District Court, Grayson County; R. M. Carter, Judge.

Suit by the Yellow Cab Transit Company, Incorporated, against H. G. Tuck and others, officials of the City of Sherman, to enjoin enforcement of an ordinance regulating use of streets by trucks. From a judgment dissolving a temporary injunction theretofore granted, plaintiff appeals.

Affirmed.

Phinney & Hill, of Dallas, for appellant.

Jas. D. Buster, of Sherman, and Claude Pollard, of Austin, for appellees.

BOND, Chief Justice.

Appellant, Yellow Cab Transit Company, Inc., instituted this suit to restrain the officials of the city of Sherman from enforcing an ordinance, duly and legally passed by the constituted authority of the city, regulating the use of its public streets, avenues, alleys, highways, boulevards, and public grounds as to the weight of loads and size of vehicles operating thereon.

The ordinance under attack makes it an offense for any commercial motor vehicle, truck, tractor, etc., to be operated on the public streets of the city of Sherman with a load exceeding 7,000 pounds, or having a greater weight than 600 pounds per inch width of tire upon any wheel. It prescribes the width, heighth, length, loading, etc., of motor vehicles, and makes it an offense, punishable by fine of not more than $200, for any person to violate any of the provisions of the ordinance. It further makes provision for the enforcement of the ordinance by the city officials, and for means of ascertaining the weight of such loads and motor vehicles. The ordinance is analogous to, and in almost the exact verbage of, the state law (article 827a, P.C.) regulating the use of, fixing the maximum load limit and the dimension, size, and weight of motor vehicles permitted to be operated over the highways of the state of Texas outside the limits of cities and towns, and fixing the penalty for the violation of said law.

It is contended that the ordinance is in conflict with the general laws of the state, article 827a of the Penal Code, fixing the maximum load limit, dimension, size and weight of motor vehicles; and it is urged that, as the state law excludes from its operation the public streets of incorporated cities and towns, it constitutes a finding on the part of the Legislature that no similar regulation was needed for the streets of incorporated cities and towns, hence, by implication, excluded any action on the subject by such cities and towns.

The city of Sherman is a "home rule city" operating under the provisions of section 5, article 11, of the Constitution of Texas, and article 1165 et seq., Revised Civil Statutes of Texas. The constitutional and statutory provisions each provide for incorporation by cities of a designated class according to and depending upon the expressed will of the people to be affected; and, in part, declares, "Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature," and provided that, "No charter or any ordinances passed under said charter shall contain any provision inconsistent with the Constitution or general laws of this State." Article 11, § 5, Constitution. And the Enabling Act (article 1165 et seq.) carrying into effect the above constitutional provisions also authorized the inhabitants of such cities to determine for themselves whether they shall be incorporated as a home-ruled city and be subject to the duties and liabilities incident to such corporations, as prescribed by the law relating thereto. Clearly, the purpose of the constitutional amendment and the Enabling Act was to bestow upon all cities falling within the bracket of 5,000 inhabitants or more, the power of local self-government and full authority to do whatever the Legislature could theretofore have authorized the city to do.

In keeping with the purpose of the law, such corporations are expressly granted the authority, among the enumerated powers, "To have exclusive dominion, control, and jurisdiction in, over and under the public streets, avenues, alleys, highways and boulevards, and public grounds of such city" (article 1175, subd. 16), and "prohibit the use of any street, alley, highway or grounds of the city by any telegraph, telephone, electric light, street railway, interurban railway, steam railway, gas company, or any other character of public utility without first obtaining consent of the governing authorities expressed by ordinance" (art. 1175, subd. 12), and, further, "To license, operate and control the operation of all character of vehicles using the public streets, including motorcycles, automobiles or like vehicles, and to prescribe the speed of the same, the qualification of the operator of the same, and the lighting of the same by night and to provide for the giving bond or other security for the operation of the same" (art. 1175, subd. 20). In order that the enumeration of the particular powers might not be construed as a limitation of authority of such municipal corporation, a further provision in the act, now article 1176, recites that, "The enumeration of powers herein above made...