
    Ex parte BOGLE.
    (No. 3749.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Municipal Coepoeations <&wkey;703 — Steeets — Opeeation op Automobiles — Jitney — Power to Regulate.
    Under Austin city charter (Sp. Acts' 31st Deg. c. 2), providing that the mayor and councilmen shall have all the legislative, executive, and judicial powers granted, that the council may adopt ordinances not inconsistent with the Constitution and statutes, and shall have exclusive control over streets, and power to regulate the use of same, and to regulate the speed and handling of automobiles, the city could enact and enforce such reasonable ordinances as it deemed necessary and proper to regulate the handling of automobiles, including jitneys, and the use of streets by a person owning and operating the same in the carriage of passengers for hire.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. <@c^703.]
    2. Constitutional Law <&wkey;207, 208 — Class-Legislation — Ordinances — Use op Streets — Regulation op Jitneys.
    An ordinance regulating the operation of jitneys on the streets and requiring a license and a bond as a condition precedent thereto, was not objectionable as class legislation in violation of Const, art. 1, § 3, and Const. U. S. Amend. 14, where it applied to all jitneys alike, though it did not. apply to the street car system and other automobiles and vehicles carry-I ing passengers for hire; jitneys being a class within themselves distinct from such other modes of conveyance for hire.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 625-677; Dec. Dig. &wkey;> 207, 208.]
    3. Municipal Corporations <&wkey;703— Streets —Jitney Ordinance — Validity—Creation op Liability.
    A pi-ovision of an ordinance requiring, as a prerequisite to a license to operate a jitney, that the owner file with the city an indemnity bond for $5,000, conditioned that the licensee should pay any judgment rendered against him to the extent of $2,500 for injury to, or death of, any person, or injury to the property of another, and to the extent of $5,000 for like injuries in one accident to more than one person, and fui-ther conditioned to hold the city harmless from all claims resulting to it from the granting of such license, was not objectionable as an attempt to create on behalf of strangers to the licensee and licensor a liability against the licensee «or his bondsmen.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. &wkey;>703.]
    4. Municipal Corporations <&wkey;121 —Ordinances — Validity—Right to Object.
    Where an ordinance prescribed a license fee of $50 per annum for each jitney holding five or- less, and of $75 for a seating capacity of not over seven, but more than five, and of $100 for a seating capacity of more than seven, the owner of a jitney who came within tlie $50 class only could not question the validity of the provisions for $75 and $100 license fees.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 257; Dec. Dig. <&wkey;> 121.]
    5. Licenses <&wkey;7 — Ordinance—Validity —• Police Regulation — Tax por Revenue.
    Where it appeared that the salaries of extra policemen and other expenses necessitated by the operation of jitneys would proximately equal the amount expected from the license fees of $50 per annum on each vehicle with a seating capacity of five or less, including the driver, the ordinance prescribing such fee was not objectionable as being a tax for revenue for city purposes, instead of a police regulation.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. &wkey;7.]
    6. Licenses &wkey;?7 — Ordinances—Validity.
    That an ordinance requiring procurement of a license as a condition, to the right to operate a jitney gave the city authorities discretionary power to grant or refuse a license did not render it void.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. &wkey;7.]
    7. Municipal Corporations &wkey;>121 — Ordinances — Right to Object.
    Where a jitney owner had not attempted to procure a license and been refused, he could not object that the ordinance requiring licenses was invalid because it clothed the city with arbitrary power to grant or refuse a license, though all the fees were paid and all the requirements of the ordinance complied with.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 257; Dec. Dig. 121.]
    8. Municipal Corporations <&wkey;121 —Evidence — Burden of Proof — Unreasonableness of Ordinance.
    Where a jitney owner charged with violating an ordinance by running a jitney without a license complains in habeas corpus by him that requirements of the ordinance that he pay a license fee and give bond amount to a prohibition, the burden is on him to establish his contention.
    [Ed. Note. — For other cases, Corporations, Cent. Dig. § 257; 121.] see Municipal Dec. Dig. <&wkey;>
    Davidson, J., dissenting.
    M. Bogle was arrested for operating a jitney without the license required by ordinance of the city of Austin, and brings habe-as corpus.
    Relator remanded to custody.
    E. T. Moore, of Austin, for appellant. E. C. Gaines, of Austin, Special Counsel, J. Boul-din Rector, City Atty., and H. B. Barnhart, Asst. City Atty., both of Austin, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

In vacation Mr. Bogle applied to one of the judges of this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by the chief of police of the city of Austin under a capias issued by the corporation court on a complaint filed therein August 21, 1915, charging him with that day operating a jitney on one of the public streets of the city without having a license in violation of trte ordinance making it an offense to do so, and seeking Ms discharge from said claimed illegal arrest and detention. The writ was granted and the cause set for hearing before this court in term time. The relator, Bogle, contends that said ordinance is unconstitutional, invalid, and void on various grounds.

The attacked ordinance was enacted July 6, 1915, and on its face clearly appears to be regulatory only in all of its provisions and as a whole. Long before its enactment the city had in force another permit ordinance requiring every person running any automobile on its public streets to apply to and get from its clerk a permit to do so, and requiring the payment of a fee of 50 cents therefor, and that the number of his machine be properly placed thereon. Mr. Bogle had complied with that ordinance. The city also had another drivers’ ordinance, in effect, requiring every person who engaged in the business of carrying passengers for hire in any automobile within its limits, in audition to said permit, to get a driver’s license from it, and, when granted, to pay the city tax collector a fee of $2 therefor. Mr. Bogle had also complied with that ordinance.

It is agreed herein that about 1,800 persons had taken out said permits, and that 95 of these had taken out said $2 driver’s license, but that no person had applied for license under said jitney ordinance, and that Mr. Bogle had in no way complied therewith, and had no license thereunder.

It is also agreed that there was “a further class of vehicles'” permitted to operate in carrying persons in the city under its ordinance designated as “any hack, * * * omnibus, * * * or other vehicle of any name whatever,” carrying persons for hire, and that all such “have designated stands and run only on special calls, and are not held out as running over any special route, and they charge a higher fare than jitneys”; that all these are required to pay only said $2 license fee, and no bond is required of them; that all automobiles permitted to operate in the city, whether private cars, service cars having designated stands, or jitneys, are subject to the same traffic ordinances, except such special provisions as are in said jitney ordinance relating to jitneys alone; that Mr. Bogle, on the date charged in the complaint against him, operated a five-passenger Ford automobile in the city as a jitney running on a route having definite termini of less than 35 blocks, which automobile operated by him would clearly be a jitney, as defined in section 1 of the attacked ordinance. This ordinance makes it an offense to thus operate a jitney without license, and it was for that only Mr. Bogle was arrested and held in custody by the chief of police.

It is further agreed that there was a street car system operating in the city as a carrier of passengers under a franchise; that it carries passengers and gives transfers anywhere on its lines for five cents fare. It is not required to take out license nor give bond. It is required and pays the city $1 per mile occupation tax, and the same amount to the county, and double that to the state. ltd franchise and the city ordinances require it to pave its tracks and one foot additional on each side thereof wherever the city paves, and to maintain the same space on all other streets where its tracks are laid. It has spent alone for paving in the city over $300,-000, and its annual paving is about $30,000. It pays the city $4,000 ad valorem tax, and one-half that sum to the state and county annually. Its gross receipts annual tax to the state is $1,955, and its federal income tax is $611 annually. Its total annual tax for the space of each passenger is $58.76.

The charter of the city of Austin was granted by the Legislature, approved February 3, 1909, and by a provision therein the courts are required to take judicial knowledge thereof.’• Special Laws of 1909, pp. 8-45. It provides that the mayor and four councilmen shall be known and designated as the city council, and have all legislative, executive, and judicial functions or powers granted. Among other provisions of the charter and powers given the city council are these:

Article XI, section 1:

“The city council shall be vested with the power and charged with the duty of adopting all law and ordinances, not inconsistent with the Constitution and laws of the state of Texas, touching every object, matter and subject within the purview of the local self-government, conferred by this act upon the citizens of the city of Austin.”

Article XIV, section 38:

“ * * * To make and regulate stands for vehicles at said depots and other public places.”

Article XV, section 1:

“The city council shall have power, subject to the restrictions herein contained, to make all rules, regulations and ordinances which may be necessary and proper for carrying into effect the powers specified herein.”

Article XV, section 14:

“ * * * The council may enact any ordinance not in conflict with the penal laws of the state.”

Article XIII, section 1:

“The city council shall have exclusive control over and regulation of all streets, alleys, sidewalks and highways and the public squares within the corporate limits of the city, and shall have power: * * * [Subdivision h.] To regulate the use of the same. * * * ”

Article XIV:

“The city council shall have power by ordinance: [Section 10.] To license and regulate hacks, carriage, omnibusses, wagons and drays, and to fix the rate to be charged for the carriage of persons and for the wagonage, cartage and drayage of property. * * * [Section 32,] To regulate the speed and handling of automobiles.”

Under these powers and authority, we think unquestionably the city had the power and authority to enact and enforce any and all reasonable ordinances which it deemed necessary and proper to regulate the handling of automobiles and the use of the streets by persons owning or operating the same in the carriage of passengers for hire. A jitney is an automobile, both in fact and so agreed herein, and as specially defined by section 1 of said ordinance; in fact, as we understand, appellant concedes that the city council had power and authority to pass all reasonable ordinances regulating the jitney and the operation thereof on the streets of the city.

However, the first ground of his attack on said jitney ordinance is substantially this: That section 1 of said ordinance, when considered in connection with other ordinances and the testimony, violates section 3, art. 1, of our state Constitution and the fourteenth amendment of the Constitution of the United States, in that it discriminates between the rights of the same class, and places a greater burden upon one than another of the same class, and that whether the amount charged be a tax or license fee.

In the recent case of Ex parte Sullivan, 178 S. W. 537, we discussed an ordinance of the city of Ft. Worth, Tex., of which the ordinance attacked herein is substantially and practically the same, and therein held, as we do in this case that the said ordinance violates neither our state Constitution nor the Constitution of the United States in this particular. What we said in the Sullivan Case on that subject specially applies to this case. We think there can be no question but that the jitney, as defined in the ordinance herein and as operated by Mr. Bogle, is a class within itself, separate and distinct from both the street ear system and other automobiles or vehicles whidh have stands as described above. In addition to the Sullivan Case and authorities therein cited, we cite Ex parte Cardinal (Cal.) 150 Pac. 348. By the ordinance all jitneys are treated exactly alike, and neither within that class is treated in any way whatever different from another.

He next attacks sections 9, 10, and 11 of said jitney ordinance, requiring a bond, claiming that it is beyond the power of the city, and its charter confers no right, either express or implied, to create a cause of action in behalf of individuals strangers to the licensee or licensor or to provide a remedy for such, or to insure or indemnify the city for damage or loss, unless the same is of such a nature as to render the city liable either by statutory or common law; and by the terms of the ordinance and conditions of the required bond it affirmatively appears that the damage or loss sought to be guarded against is not of this character. These sections of the ordinance, in effect, as a prerequisite for a license to operate a jitney, require that for each jitney the owner, etc., shall procure and file with the city an indemnity bond or policy of insurance in the sum of $5,000, conditioned that the licensee shall pay any judgment of court finally rendered against him, etc., to the extent of $2,500 on account of injuries to or death of any person or injury to the property of another and to the extent of $5,000 for like injuries occurring in one accident to more than one person caused by the negligence of such licensee, etc., and further conditioned to hold the city harmless from any and all claims, etc., resulting to it from the granting of such license. This bond can be made by either a surety company authorized to do business in this state or by personal security. Neither these sections nor the ordinance as a whole, as we understand it, in any way creates, or attempts to create, in behalf of any person, any liability against the licensee or his bondsmen, but it merely provides as one of the reasonable regulations of the licensee that he shall provide by such bond or indemnity a means to satisfy the loss to such one as may be damaged by him finally rendered by a court. It in no way prescribes any contingency under which the licensee should be liable to any person for any negligence whatever committed by him or other act by him. The city would have no right to create that kind of cause of action, and, as stated, it does not attempt to do so.

It is agreed herein that the city of San Antonio, Tex., had an ordinance regulating jitneys, wherein it required as a prerequisite to a license that the jitney owner should execute a bond in the sum of $10,000, with the conditions thereof somewhat like the conditions of the bond of the ordinance herein attacked, and that also the city of Et. Worth, Tex., had a like ordinance requiring a bond in the sum of $2,500, with somewhat of the same conditions; that in the city of San Antonio, under the ordinance of that city, 91 such bonds as there required had been given, and under the ordinance of the city of Ft. Worth 89 bonds as there required had been given.

In the Sullivan Case, supra, we held that the bond required therein was a proper regulation. We likewise hold in this case that the bond required herein is a reasonable regulation, not void nor unconstitutional on any ground, and is a proper regulation, as shown in this case is the city of Austin. In addition to the authorities cited on this point in the Sullivan Case, we now cite case Ex parte Bell, 24 Tex. App. 428, 6 S. W. 197; Greene v. San Antonio (Civ. App.) 178 S. W. 6; Ex parte Cardinal, supra.

In this connection, and others as well, it was further agreed herein: That prior to the passage of the jitney ordinance attacked there were about 60 jitneys running in the city. Some of them had inexperienced or reckless drivers, and few of them had any financial responsibility, except some owned the Ford car operated. These jitneys traversed the most traveled streets of the city, and largely confined their traffic to. the paved or best graded or graveled streets, and practically paralleled all the street railway lines, and in going their usual route all, or about all, of them traversed certain mentioned streets, which are the principal streets of the city and in the most congested centers of ordinary traffic, and tended to greatly congest the traffic of said streets. That during the 60 days prior to the passage of said ordinance there were a number of accidents due to the jitneys. That the city council, in view of the traffic conditions brought about by the advent of the jitney and of the accidents due to their presence and their menace to the general safety of the public, deemed that there was an imperative and urgent necessity for the passage of said jitney ordinance.

It is further agreed herein that the jitney traffic in the city is a business done, carried on, and operated solely upon the public streets and thoroughfares of the city, and is largely confined to the paved streets and best graded and graveled streets, and that the jitney is a new and hazardous kind of passenger traffic, and the danger to individual accident and injury is greater, and that the number of accidents in proportion to the number of passengers carried and injuries has, in fact, been greater in this line of passenger traffic than in any other commonly used.

It was further agreed that, by reason of the new and hazardous nature of the jitney service, very few surety or indemnity companies would undertake such security until the class, character, and nature of the service have been reduced to a system (that it was not meant thereby that thereafter either of said bonds could or could not be given under said jitney ordinance), and that a personal bond could ordinarily be given only by a careful driver known to his sureties to be temperate, cautious, and reliable; that the said bonds given in the cities of San Antonio and Ft. Worth were made by an indemnity company. It was further agreed that application was made in behalf of the Austin jitneys to certain named indemnity companies without success, and that a certain other company would write a policy on autos carrying passengers for hire, but would not write a policy under the ordinance attached.

The next ground of attack is of section 7 of said ordinance, which prescribes a license fee of $50 per annum for each jitney with a seating capacity of five or less, including the driver, and of $75 for a seating capacity of not more than seven, but more than five, including the driver, and of $100 for a seating capacity of more than seven persons, including the driver, claiming that these fees are not license fees, but an evasion of the law, and, in fact, a tax for revenue for city -purposes, and not as a poiice regulation.

So far as the relator is concerned, he is in no position to attack said section of the ordinance for the amount of the latter two fees, because it is conclusively shown that he comes within the $50 class only, and we do not pass upon those features of that section prescribing the $75 and $100 amount of license fees. On this point, in addition to the agreed facts above recited, is this further agreement: That the carrying out of said jitney ordinance will require the printing of blanks and stationery for licenses, applications, bonds, and such other matters as are named in the ordinance, and will require more clerical labor, all at an expense to the city that cannot now be estimated, and that the policing of the ordinance will require two, or possibly three, extra policemen at a salary of $&0 each per month, including a motorcycle man and cost of the motorcycle, all at an additional expense of probably $2,500 a year, if the same number of jitneys were in operation, and that in fixing the amount of said license fees the council did not expect the sum realized therefrom to more than pay the expenses of policing and enforcing said ordinance, and did not expect to or contemplate the realizing of any revenue to the city over and above the additional expense caused by the proper enforcement of said ordinance. We think that this demonstrates that the said $50 license fee was, in truth and in fact, a license fee only, and not a tax to provide an extra revenue, and that this section of the ordinance is unquestionably valid. Ex parte Sullivan, supra, and authorities there cited.

In the next attack on the ordinance he claims that, as a whole, it is unreasonable, and clothes the city with arbitrary power to grant or refuse a license though the fees are paid, and all the requirements thereof complied with by an applicant for a license. This question was also discussed and passed upon in the Sullivan Case, supra. We see no necessity of further discussing it here. The attacked ordinance herein is in no essential particular different from the Ft Worth ordinance passed upon in the Sullivan Case. The relator is not in a position to attack the ordinance on that ground, anyway; for it is conclusively shown that he has in no way attempted to procure a license and been refused on any ground. However, we might say that, if even he was in a position to attack the ordinance on this ground, we see nothing in it but a reasonable and proper regulation, and we see nothing in it which would authorize or justify this court to hold the ordinance, or any provision of it, void on that ground.

His next attack on the ordinance is his claim that the difficulty of complying with its requirements practically amounts to a prohibition, and that the amount of the fees required to be complied with before the bond can be given and the terms and amount of the bond are requirements which cannot be complied with. The relator’s contention on this point cannot be sustained. The whole agreed facts indicate that, if he is a proper person to operate a jitney under said ordinance, he may reasonably comply therewith, and that its provisions do not amount to a prohibition. The burden is on him to show what he claims, and not on the state or city to show otherwise. In the agreed facts as a whole, we think it is shown that he can reasonably comply therewith, and hence the ordinance is not void on this ground.

1-Iis last contention is that, the arbitrary power' preceding the issuance of license and the. power reserved by the city to cancel it and throw him out of business at any time discourages the investment necessary to go into business, and tends to, and does, prevent competition and results in building up a monopoly in behalf of the street car company. We think it unnecessary to discuss this general attack of the ordinance. We see nothing in it that would sustain the relator’s contention. On the contrary, we see from it only the proper and reasonable regulation of the business and the proper requisites of persons only who should be authorized by the city to operate jitneys on its streets. It may be that some persons would experience some difficulty in complying with the ordinance, but no more so than any other like hazardous and dangerous business.

We have carefully investigated this ordinance and the relator’s attack of it and the questions raised by him, and reviewed the Sullivan Case, supra, and the authorities therein cited, and have reached the conclusion that there is nothing in the ordinance herein attacked that would in any way legally permit or authorize this court to hold it invalid. On the contrary, it. is our opinion that the said ordinance, in the particular attacked wherein relator is in position to attack it, is valid and constitutional, under the agreed statement of facts on file.

It is therefore ordered that the relator be remanded to the custody of the city marshal.

DAVIDSON, J.

I cannot concur. I wrote fairly fully in the Sullivan Case my views of disagreement. I may write in this case later. 
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