
    CITY OF FORT WORTH et al. v. LILLARD et al.
    (No. 4411.)
    Supreme Court of Texas.
    May 4, 1927.
    Municipal corporations &wkey;>703(l) — Ordinance which in effect prohibited use of streets by carriers of passengers for hire held invalid.
    Ordinance of city of Fort Worth declaring right to use public streets, highways, and alleys of city for purpose of carrying passengers for hire to be privilege and unlawful unless public necessity and convenience require such use, and providing for certificates and permits, which in effect was prohibition of use of city streets by those carrying passengers for hire, held invalid as beyond power of city to enact.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    > Suit by Lee A. Lillard and others against the City of Fort Worth and others to enjoin enforcement of an ordinance. Judgment granting temporary writ of injunction was affirmed by the Court of Civil Appeals (272 S. W. 577), and defendants bring error.
    Affirmed.
    R. E. Rouer and Gillis A. Johnson, both of Fort Worth, and E. F. Smith, of Austin, for plaintiffs in error.
    Mayer, Rowe & Brown, of Fort Worth, for defendants in error.
   PIERSON, J.

The opinion of the honorable Court of Civil Appeals sets out very fully the pleadings in the case, and may be found in 272 S. W. 577. <

The facts material to a decision of the ease may be summarized as follows:

The city of Fort Worth, by 'a vote of its people, on December 11, 1924, adopted its charter under the Home Rule Amendment to the state Constitution (article 11, § 5), which charter contained the following provision:

“The use of the said public streets, highways, alleys and thoroughfares of this city which .does not require the digging up or similar interference with said streets, alleys or highways for the installation of equipment, appliances or appurtenances to make the intended use possible, shall be treated and considered as a privilege subject to the control and disposition of the city council, and such privilege over and upon the said public streets, alleys, highways and thoroughfares of the city shall not be granted to any person or corporation excepting when public necessity 'and convenience may require such use and when given by ordinance passed by two-thirds vote of the city council.”

In accord with said charter provision the City of Fort Worth enacted an ordinance which in effect was a prohibition of the use of the city’s streets by those carrying passengers for hire, as disclosed by the caption to said ordinance in the following language:

“An ordinance declaring the right to use the public streets, highways, alleys and thoroughfares of the city of Fort Worth for the purpose of carrying passengers for hire to be a privilege and unlawful, unless the public necessity and convenience does in fact require such use, and a certificate of public necessity and convenience has been granted by the city council of the city of Fort Worth, and a permit issued in pursuance thereof by the city secretary; classifying vehicles carrying passengers for hire into two classes, and defining the same: Providing for the application for and the granting of such certificates and permits; declaring the operation of vehicles for the carriage of passengers in violation of this ordinance to be unlawful; fixing a penalty, and declaring an emergency.”

Defendants in error, who are carriers of passengers for hire between Fort Worth and Dallas and intermediate points, and along and over the streets and highways of the city of Port Worth, filed this suit in the district court- of the Ninety-Sixth judicial district to enjoin the enforcement of said ordinance. Defendants in error alleged that the city council of the city of Port Worth at the time the ordinance was passed was without power to enact ordinances, and, in addition, that the ordinance in question was not enacted in accordance with charter provisions, and that for these reasons the ordinance was void. They allege also that:

. “Under the guise of enacting a regulatory measure, regulating the character of business therein dealt with, an ordinance and regulation was passed having for its real object and purpose the prohibiting of motorbusses operating the streets of tlie city of Port Worth, and transporting therein passengers, for hire, and thence to, from and* between the points hereinabove mentioned; and especially prohibiting the operation of su'ch vehicles between the city of Port Worth and the city of Dallas; and its purposes and intentions were wholly prohibitory, and not regulatory.” ■

The elaborate allegations of defendants in error relating to the finely built, hard-surfaced highways and streets, and the efficiency and profitableness of their business, do not add anything to their cause of action, and are immaterial to the issue which controls the decision of the case.

The honorable district judge granted a temporary injunction, which action was on appeal affirmed by the honorable Court of Civil Appeals for the Second Supreme Judicial District.

A writ of error was granted with the following notation:

“We are not satisfied with the conclusions reached by the Court of Civil Appeals; at the same time we entertain grave doubts as to the validity of both the charter provision and the ordinance involved.”

The Court of Civil Appeals affirmed the action of the district judge granting the temporary injunction on the ground that the ordinance was not legally enacted^ in that it was not enacted in accordance with charter provisions. We will not carefully examine into or discuss that question, as we conclude that the ordinance is invalid as being beyond the power of the city to enact.

It is clear from a reading of the caption of the ordinance that its purpose and effect was to prohibit the use of the streets of the city of Fort Worth for the purpose of carrying passengers for hire.

In an opinion delivered to-day in the case of City of Arlington et al. v. Lee A. Lillard et al., 294 S. W. 829, this court held that a city is without power to prohibit the use of its streets to those carrying passengers for hire. Under the Jaw as declared in that case the temporary injunction was properly granted by the district judge.

Therefore the judgment of the Court of Civil Appeals should be affirmed, and it is so ordered. 
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