author: PER CURIAM. HAWKINS, J.

text:
    MUNSON et al. v. LOONEY, Atty. Gen.
    (No. 2665.)
    (Supreme Court of Texas.
    June 26, 1915.)
    On motion for rehearing.
    Overruled.
    For former opinion, see 172 S. W. 1102.
   PER CURIAM.

Motion for rehearing overruled.

HAWKINS, J.

(concurring). Upon the original hearing, this court said:

“This question was so ably and carefully discussed in Simmons v. Lightfoot, Attorney General, 105 Tex. 212 [146 S. W. 871], that we' deem it unnecessary to repeat conclusions reached and expressed in that case, further than to quote as follows: [The quotation embracing what will be hereinafter referred to as a correct interpretation, in abstract terms, of section 52 of article 3 of the Constitution of Texas].”

For the quotation in full, see the opinion of this court in the case at bar, 172 S. W. 1102.

Upon careful consideration of relators’ motion for a rehearing herein, in connection with all that was said in said original opinion in this case concerning the opinion of this court in the Simmons Case, I feel constrained to express here my views as to the bearing of said opinion in that former case upon the case at bar, lest I be longer misunderstood as approving the decision and the entire opinion in the Simmons Case.

Said opinion in the present case also declared:

“The opinion in the case of Simmons v. Lightfoot, 105 Tex. 212 [146 S. W. 871], seems to be wholly misunderstood and misinterpreted by the attorneys on both sides of this contention. Indeed, from soms> cause or other, the misunderstanding of that case seems to have caused the only difficulty in this case.”

I now feel imjielled to say that I no longer concur in that expression. In fact, further study of the subject has convinced me that said attorneys understand said opinion in the Simmons Case substantially as I do, and that the real difficulty in this case grows out of-serious errors and marked inconsistency in that opinion in the Simmons Case itself, and results from the fact that in the case at bar respondent asserts the correctness of one phase of said opinion in the former case, while relators rely upon another and conflicting phase of it. In Simmons v. Light-foot, this court, in abstract terms, correctly construed section 52 of article 3 of our state Constitution, but a conflicting method of determining what amount of bonds might be issued by the road district was applied to the facts. That resulted, in that former case, in the award of a writ of mandamus to compel approval of an excessive bond issue. And the basis therein suggested and approved for assessment and collection of taxes is one inhibited by section 1 of article 8 of said Constitution.

• The foregoing outlines this situation as I understand it. However, a fuller statement of my views of that case appears to be reasonably demanded, and may prove worth while.

Simmons v. Lightfoot, supra, was a pioneer case, and imposed upon this court the dual duty of construing and applying section 52 of article 3. Those constitutional provisions were construed and held to contemplate the establishment' of a road district embracing all or part of a previously formed drainage district; and, in abstract terms, they were further construed, substantially, as authorizing statutes providing for the creation of an aggregate bonded indebtedness not exceeding one-fourth of the assessed valuation of real property of any district, for all five, biit not for each, of the general purposes enumerated in section 52, and to that extent that opinion was clear, forcible, and correct. Indeed, to that extent it was unanswerable, and well entitled to be followed, as it was followed, by this court, in deciding the case at bar. But it will be observed that said original opinion herein does not quote or approve or discuss or mention any other plan or rule for ascertaining what amount of bonds any district may issue, or on what basis taxes therefor shall be assessed and collected. However, the fundamental principle which was enunciated abstractly in the Simmons Case, as embodying the correct interpretation of said restrictive constitutional provisions, did not control the decision in that former ease. In Simmons v. Lightfoot, supra, it was also said:

“We are of the opinion that a road district formed after a drainage district may embrace such district, and may create a debt not to exceed one-fourth of the assessed value of the real property in such subsequently formed district, less the debt created by the previously formed district." (Italics mine.)

And that italicized practical rule was permitted to actually control that decision; the logical and immediate result being that this court there ordered the Attorney General to approve certain road bonds of such great aggregate amount that the share or portion thereof for which the territory common to both districts would become charged, proportionately, would, when added to the amount of said drainage bdnds then outstanding, make up a total bonded indebtedness proportionately chargeable- against that common territory largely in excess of one-fourtli of the assessed valuation of real property within that common territory; and that, in my opinion, was in plain and direct contravention of said restrictive provisions of section 52, as construed and practically applied to the facts of the case at bar, in said opinion by Chief Justice Brown, and as likewise construed, in abstract terms, but not applied, in said opinion in the Simmons Case.

It is significant, perhaps, that in immediate connection with the enunciation of said practical rule in the Simmons Case the court added:

“But in levying and collecting the taxes to pay the interest on and provide a sinking fund for the payment of such debt, the property in the previously formed district cannot be taxed more than sufficient to pay the amount in excess _ of the debt the dravnape district was authorized to incur.” (Italics mine.)

That proposition appears to have been there advanced as a predicate for said practical rule, and I think such predicate was indispensable to, as well as insufficient for, its support; yet the proposition itself seems to me to be absolutely repugnant to section 1 of article 8 of the Constitution of Texas, which declares that “taxation shall be equal and uniform.” Those provisions of section 1 apply to each and every district within the purview of said section 52, including drainage districts and road districts. Austin v. Gas Co., 69 Tex. 180, 7 S. W. 200; Norris v. Waco, 57 Tex. 611; Mills County v. Brown County, 85 Tex. 398, 20 S. W. 81; Railway v. Shannon, 100 Tex. 379, 100 S. W. 138, 10 L. R. A. (N. S.) 681. Said provisions are not mentioned in that opinion in the Simmons Case, and appear to have been entirely overlooked. And, in logical and ultimate effect, that enunciation of said proposition in that former case directed the assessment and collection of road bond taxes in that road district upon a basis which might result in a road bond tax rate within the territory common to both districts lower than the road bond tax rate applicable throughout the other portion of that road district, in contravention of said section 1 of article 8. That would be the inevitable result upon the basis of the assessed valuation of real property within the two districts, respectively; and that is the only constitutional or statutory basis for determining the extent or amount of such bond issues.

Now, it is upon that practical rule so based upon or reinforced or supplemented by said proposition concerning levy and collection of taxes that relators stand in the case at bar; from which I assume that said practical rule and said proposition were considered by re-lators as a safe and sufficient guide in preparation and issuance of the road bonds here in controversy. The refusal of respondent to observe and follow that rule in approving bonds evidently precipitated this suit for mandamus. Consequently, said practical rule and said proposition together iform the very warp, at least, of the case at bar, and are so interwoven into its texture that the pending issues between the parties can hardly be fully or satisfactorily decided without consideration of both phases or branches of said opinion in Simmons v. Eightfoot, supra; and, inasmuch as they are inconsistent, and one or the other is therefore necessarily erroneous, I consider it both appropriate and timely for this court to here and now draw between them a definite line of demarkation, and say plainly, not only that it adheres to the one, but that it expressly overrules the other. Why not?

Consequently, the sole remaining inquiry is: Is there really an irreconcilable conflict between said practical rule and said section 52, properly construed? As illustrative tests of that rule, let it be applied: First, to the facts of an assumed case, in simplest form; second, to the facts of the Simmons Case; and, third, to the facts of the case at bar.

A, B, C, D=Drainage District. Assessed valuation real property.$100,000.00
Normal bond capacity (%). 25,000.00
Drainage bonds issued. 15,000.00
Reserve-bond capacity.$ 10,000.00
E, E, G, D=Road District.
Assessed valuation real property.$400,000.00
Normal bond capacity (%).$100,000.00
Road bonds issued. None

In the assumed case let the road district comprise four sections numbered I, 2, 3, and 4, respectively, the assessed valuation of real property in each amounting to $100,000, section 4 comprising a previously formed drainage district which has issued- drainage bonds amounting to $15,000. The assessed valuation of real property in the entire road district, including- the common territory, is, therefore, $400,000, and one-fourth thereof, representing the normal bond issuing capacity of the entire territory within the road district for all or any of the purposes mentioned in said section 52, is $100,000. Applying, now, said practical rule: Deducting from that amount the amount of outstanding drainage bonds, $15,000, previously issued by said drainage district against its territory, which has now become common to both districts, the residue, $85,000, is found to be the maximum amount of road bonds which said road district may actually issue according to that rule.

Now, it must be conceded that, upon the foregoing assumption that the assessed value of real property is uniform throughout the four sections comprising said assumed road district, said issue of $85,000 in road bonds against the entire road district may truthfully be said to amount, •from a merely mathematical standpoint, to an issue of only $25,-000 in road bonds against each of said sections 1, 2, and 3, and of only $10,000 against said section 4, comprising said previously organized drainage district, and that in said drainage district the $10,000 in road bonds, when added to said $15,000 in drainage bonds, would make up for said section 4 a like total of only $25,000 in bonds, and that, upon that theory each of the four sections comprising said road district would stand bonded for only $25,000, which would not exceed the restriction imposed by said article 3, § 52, of the Constitution; wherefore the alleged conflict with section 52 vanishes.

But the problem involves more than mathematics. And the entire and only course of reasoning upon which said road bond issue of $85,000 can be considered valid, as not conflicting with said provisions of section 52, rests upon said assumption that in estimating the total capacity of the road district to issue road bonds said $85,000 in road bonds may be considered or treated legally as distributed among, over, and upon said four sections in manner and in proportions above suggested, and upon the further assumption that property within said drainage district is to be taxed for interest and sinking fund for only $10,000 of said $85,000 issue of road bonds. But both of those indispensable assumptions are, in my opinion, alluringly yet certainly and utterly fallacious; nevertheless they seem to have entered into and to have materially affected and to have even controlled the actual disposition of the case in Simmons v. Lightfoot, and I think they probably explain the genesis of said practical rule therein formulated for ascertaining what amount of valid bonds may be issued.

To indulge said first assumption, to consider or treat such road bond issue of $85,000 as so distributed to, over, or against said sections 1, 2, 3, and 4, not in proportion to assessed valuation of real property (which in the assumed instance would mean equally), but arbitrarily, in manner and form herein-above shown, making the portion thereof chargeable against each of sections 1, 2, and 3 two and one-half times as great as the portion chargeable against section 4, although the assessed valuation of real property is the same in each section, is, I think, to disregard the plain intent and meaning of said section 52 and of said road district statute; and to undertake to justify that procedure by making the road bond tax rate within the common territory less than that required in the other portion of the road district is, X think, to lose sight of and ignore said simple, yet searching, constitutional provision that “taxation shall be equal and uniform.”

Our Constitution and statutes and natural justice are such that, if the validity of said $85,000 road bond issue be once assumed or granted, each of said sections must thenceforth be considered and treated as charged with its proportional one-fourth thereof, or $21,250; and that sum, when added to the amount of said outstanding drainage bonds, would run the total amount of such bonded indebtedness so chargeable against said common territory up to $36,250, which is $11,250 in excess of its said constitutional limit. And, inasmuch as different portions of the same road district cannot be subjected to unequal burdens of such bonded indebtedness created for the common benefit of the entire road district, said $85,000 bond issue, as a whole, is excessive to the extent of four times the amount of such excess against section 4, or $45,000. Yet, if said practical rule of the Simmons Case were correct, it would become the duty of the Attorney General, upon proper request, to approve said entire $85,000 issue of road bonds.

For purposes 'of test and illustration of said rule it is pertinent to inquire: What amount of valid road bonds may such assumed road district really issue? Without presuming to lay down herein a general rule upon the subject, and limiting my remarks strictly to the purposes of such test, X think that, with propriety, I may venture to say: A chain is no stronger than its weakest link. A battleship squadron is no faster than its slowest unit. Water will not rise above its level without pressure. likewise the maximum bond issuing capacity of the assumed road district is that amount which bears to one-fourth of the assessed valuation of its real property the same relation or proportion which the reserve and unexercised bond issuing capacity of the common territory, under said section 52, bears to one-fourth of the assessed valuation of the real property within such common territory. Evidently, no such relation or proportion exists in the assumed case between an amount representing one-fourth of the assessed valuation of the real property within said road district and the amount of outstanding drainage bonds previously issued by the drainage district against its own territory — the criterion embodied in said practical rule of the Simmons Case. If those two relations or proportions were found to be identical in any instance, their coexistence would be purely accidental. They were not coexistent in the Simmons Case.

Now, the maximum total capacity of the common territory comprising said drainage district in the assumed case to issue bonds, authorized by section 52 is limited to one-fourth of the assessed valuation of its real property, or $25,000. Const. Tex. art. 3, § 52; Simmons v. Lightfoot, supra; also original opinion herein by Chief Justice Brown. Consequently, inasmuch as said drainage district has already issued, and there are outstanding against said common territory drainage bonds amounting to $15,000, the reserve and unexercised total bond issuing capacity of said common territory, for purposes authorized by said section 52, is only $10,000, which is found to be 10 per cent, of one-fourth of the assessed valuation of real property within said common territory. And this maximum rate per cent., representing, as it does, the entire reserve bond issuing capacity of said common territory under said section 52, becomes and is the real measure of the maximum proportionate capacity of the other portion of said road district, and thus, in ultimate effect, of the entire road district, to issue road bonds. In other words, the capacity of the assumed road district to issue road bonds is measured, upon that percentage basis, by the total reserve capacity of said common territory to issue bonds of the classes designated by section 52, and not by the difference between the amount of such bonds previously issued against said common territory and an amount representing one-fourth of the assessed value of real property within the road district. The common territory cannot be so subjected to additional bonded indebtedness of that character exceeding, in the aggregate, an amount which, when added to its outstanding aggregate bonded indebtedness of that character, will exceed an amount equal to one-fourth of the assessed valuation of real property within said common territory; that is to say, if the drainage district had previously issued, and there had then been outstanding against said common territory the full quota of bonds permitted by section 52, the assumed road district could not legally issue a dime’s worth of road bonds. Stated briefly, such rate as will complete the maximum bond issue possible in the drainage district becomes the maximum rate possible throughout the entire road district; a single rate must prevail throughout the entire road district. Article 8, § 1. And, in practical application to the facts of the assumed case, said road district therein cannot issue road bonds in an amount exceeding 40 per cent of one-fourth of the assessed valuation of its real property, or 40 per cent, of $100,000, which amounts to $40,000. Up to that amount the road district may issue road bonds without infringing upon either section 52 of article 3 or section 1 of article 8 of our Constitution; but beyond that amount it may not go, in issuing road bonds, without conflict with said section 52, or, having made such excessive issue, it cannot levy and collect sufficient laa-es to retire such entire excessive issue without conflict with said section 1 of article 8.

Passing to the facts of Simmons v. Eight-foot, supra, and using the figures therein given, the situation there is found to have been substantially as follows:

Plat Illustrating Simmons v. Light foot, 105 Tex. 212, 146 S. W. 871.
Drainage District=A, B, G, D.
Assessed valuation, real property.$409,925.00
Normal bond capacity (%). 102/81.00
Drainage bonds previously issued. 85,000.00
Reserve bond capacity. 17,481.00
Road District=E, F, G, D.
Assessed valuation, real property.$1,420,015.00
Normal bond capacity (Í4). 355,003.00
Road bonds issued.None.

Applying, now, said practical rule of the Simmons Case: Deducting from one-fourth of the assessed valuation of the real property within said road district, $355,003, the amount of said drainage bonds, $85,000, the remainder is $270,003, and that, according to said rule, represents the amount of road bonds which said road district may legally issue. That is precisely what this court there found in figures, and held to be approximately correct, upon the facts of that record. But it was there held also, in effect, that land in the drainage district may be taxed for the drainage bonds upon only $102,481 — $85,000, or $14,481. Those figures faithfully reflect the facts of that case, and the calculation is mathematically correen substantially as there stated; the trouble lies in the rule which was there applied. Accordingly, as the bonds there tendered for 'approval amounted to only $100,000, the court ordered the Attorney General to approve them. However, it will be noted that the outstanding $85,000 in drainage bonds previously issued by the drainage district amounted to a little over 20.7 per cent, of the assessed value of real property within the drainage district, and that said issue of $100,000 in road bonds by said road district amounted to a little over 7.04 per cent, of the assessed valuation of real property in said entire road district, including the drainage district. Consequently, said drainage bonds and the portion of said $100,000 in road bonds proportionately and uniformly chargeable to said common territory together amounted to a little over 27.74 per cent, of the assessed valuation of real property situate in such common territory, or more than 2.74 per cent, in excess of the constitutional limit of one-fourth of the assessed valuation of real property situate in said common territory.

It will also be observed that, under the view announced in that case regarding assessment and collection of taxes, that common territory comprising that drainage district is to be taxed in an amount sufficient to pay only a little more than 6.4 per cent, of said $100,000 in road bonds, although the assessed value of its real property is a little more than 2S.S per cent, of the assessed valuation of real property in that' entire road district — a glaring inequality in taxation which, as hereinabove shown, is denounced by said section 1 of article 8 of the Constitution. Whether that ratio of un-uniformity would be substantially changed by the fact that personal property also is taxed does not appear, inasmuch as the valuation of the personal property in either the drainage district or the road district is not shown by the opinion or by the record in the Simmons Case. However, if it were so changed, it would, I think, be wholly immaterial in principle, since such change might happen to alleviate the situation, in one instance, -by tending to render taxation uniform throughout the drainage district, but, in another instance, it might aggravate the evil by rendering taxation throughout the common territory still less uniform. Mention of that feature is made here because it is presented by relators in the ease at bar.'

If applied to the facts of the Simmons Case, the method which I have hereinabove suggested for determining the amount of road bonds which might legally be issued by the road district in the assumed case would result in the conclusion that the maximum amount of road bonds which the road district in the Simmons Case was entitled to issue was approximately, $60,350.65. In other words, the reserve bond issuing capacity of that drainage district was approximately $17,481.25, which was a little over 17 per cent, of the total bond issuing capacity of that common territory under section 52, and that same proportion of $409,925, which was one-fourth of the assessed valuation of real property situate within said road district, or $60,350.65 approximately, represents the maximum amount of road bonds which that road district might equally issue. Consequently, my conclusion is that in the Simmons Case the amount of said road bonds there tendered for approval, $100,000, was excessive to the extent of $39,649.35 approximately, and the declination of the Attorney General to approve them in that amount as tendered was proper, and the writ of mandamus there granted should have been denied. The full gravity of that decision does not appear until it is remembered that said $100,000 in road bonds, which the Attorney General was there directed to approve, formed only a relatively small share of the $270,-003, approximately, in road bonds which that opinion expressly declared that road district then had constitutional and statutory capacity to issue, under the facts of that case.

It is plain, I think, that the operative portions of said decision in the Simmons Case, including the grant of the writ of mandamus, are flatly contradictory of the italicized portion of the following excerpt from the opinion in that case:

“While it is true we have held, as herein stated, that two or more districts for different purposes may embrace the same territory and remain separate and distinct units'or entities, yet from this it does not result that the real property the subject of taxation is distinct in such districts so formed. The taxable property remains the .same while administered over by separate and distinct entities, and their joint authority to create a debt against this property is limited by the Constitution! to the aggregate amount of one-fourth of the assessed value of such property. This seems to us to be the plain and undoubted language of the section of the Constitution under consideration.” (Italics mine.)

The reference therein was to said section 52 of article 3. •

Turning for final test to th,e facts of the case at bar, in which the road district embraces a part of each of two previously formed drainage districts, each drainage district having already issued drainage bonds, they are found to be substantially as below stated:

A, B, C, D=Drainage District No. 5.
Assessed real property valuation.$1,250,031.60
Normal bond capacity. 312,507.90 .
Drainage bonds issued. 275,000.00
Reserve bond capacity.$ 37,507.00
B, E, E, G=Drainage District No. 8.
Assessed real property valuation.$ 599,188.50
•Normal bond capacity. 149,797.12
Drainage bonds issued. 127,000.00
Reserve bond capacity.$ 22,797.12
H, I, J, K=R.oad District.
Assessed real property valuation.$ 757,106.70
Normal bond capacity. 186,776.67
Road bonds issued. 000,000.00
Reserve bond capacity.$ 186,776.67

Applying said practical rule of the Simmons Case as I understand its application to the facts of this case, the calculation stands thus: From one-fourth of the assessed valuation of real property within the road district, $186,776.67, deduct the aggregate amount of bonds previously issued by the drainage districts, respectively, $275,000 plus $127,000=$402,000. But that is impossible; tlie subtrahend being- larger than the minuend. So the attempted calculation ends; and said rule fails here.

But, reverting to and applying here the method hereinabove suggested for ascertaining the amount of bonds which the assumed road district may issue, it is found:

(a) That outstanding drainage bonds previously issued by drainage district No. 5 aggregate approximately 22 per cent, of the assessed valuation of its real property, and outstanding drainage bonds previously issued by drainage district No. 8 aggregate a little less than 21.2 per cent, of the assessed valuation of its real property.

(b) That, consequently, the present reserve capacity of the territory within drainage district No. 8 to issue bonds authorized by said section 52 is less, proportionately, than that of any other portion of said road district; wherefore it becomes, by force of said constitutional provisions, the true measure of the present capacity of said entire road district to issue road bonds.

(c) That said reserve capacity of drainage district No. 8 is $22,797.12, which is .1521 per cent, of one-fourth of the assessed- valuation of real property within said drainage district No. 8 ($149,797.12); consequently .1521 per cent, of $186,776.67, which is one-fourth of the assessed valuation of real property within said road district, or $28,408.73, represents approximately the actual present maximum power or capacity of said road district to issue road bonds. But it would not have been proper for respondent to have approved, as a whole, that entire issue of $50,000 in road bonds.

I concur in tlie order overruling said motion.

The foregoing is filed as merely an expression of my own individual views.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    BROWN v. STATE.
    (No. 3557.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. James Grant Brown was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant prosecutes this appeal from a conviction for aggravated assault. The record • before us contains no bills of exception, nor does a statement of facts accompany the record. We have read the motion for a new trial, and nothing is presented that can be passed upon without a statement of facts. The judgment is affirmed.


author: DAVIDSON, J.

text:
    FINE v. STATE.
    (No. 3599.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Appeal' from Somervell County Court; J. W. Childress, Judge. William Fine was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of an aggravated assault; his punishment being assessed at a fine of $25. There are no bills of exception in the record, nor is the statement of facts before us. We are unable to revise the questions intelligently with the record- in this condition. The judgment therefore will be affirmed.


author: PRENDERGAST, P. J.

text:
    GILES v. STATE.
    (No. 3609.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.
    Rehearing Denied June 25, 1915.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Henry Giles was convicted of robbery, and he appeals.
    Affirmed.
    C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of robbery. There is no statement of facts nor bill of exceptions. No question is raised which can be reviewed. The judgment is affirmed.


text:
    GOODMAN v. STATE.
    (No. 3610.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, ,Jtt, Judge. R. Goodman was convicted of robbery, and he appeals.
    Affirmed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of robbery. There is no statement of facts, nor bill of exceptions, and no question is raised which can be considered in the absence of these. The judgment is affirmed.


text:
    Ex parte HOPKINS.
    (No. 3656.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    Appeal from District Court, Bexar C'ounty; W. S. Anderson, Judge. Application by Mary Hopkins, seeking bail, for writ of habeas corpus. From a judgment refusing bail, applicant appeals.
    Reversed-.
    A. B. Cowen, Edward Dwyer, and Edward Dwyer, Jr., all of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted for murder. She sued- out before the district judge a writ of habeas corpus, seeking bail. The court below heard the evidence, and refused bail, from which she appealed. We have carefully read, the evidence in this case. The Assistant Attorney General concedes that it is a bailable case, and in this opinion we concur. As is usual, we do not discuss the testimony. The judgment denying bail is reversed, and appellant is allowed bail in the sum of $5,000. Upon her entering into the proper bond as provided by law, the officer having custody of her will release her.


text:
    HUBBARD v. STATE.
    (No. 3608.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge. Gene Hubbard was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. G. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction of aggravated assault, with the lowest punishment assessed. There is no bill of exceptions, nor statement of facts. No question is raised which can be reviewed in the absence of these. The judgment is affirmed.


author: PRENDER GAST, P. J.

text:
    JEFFERSON v. STATE.
    (No. 3586.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Jesse Jefferson was convicted of manslaughter, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDER GAST, P. J.

Appellant was convicted of manslaughter, and assessed the lowest punishment. There is but one question raised which we can review, and that is whether the evidence was sufficient to sustain the verdict. We have carefully read it. We see no necessity for stating the facts. The evidence was amply sufficient to sustain the verdict. The judgment is affirmed.


text:
    MOORE v. STATE.
    (No. 3611.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Appeal from Somervell County Court; J. W. Childress, Judge. Roden Moore-was convicted of crime, and he appeals.
    Affirmed.
    O. 0. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was given a fine of $25 for disturbing a congregation engaged in religious worship. The record does not contain a statement of facts or bills of exception. There being nothing to revise or review, the judgment will be affirmed.


text:
    SMITH v. STATE.
    (No. 3604.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Appeal from District Court, Coryell County; J. H. Arnold, Judge. Joe Smith was convicted of forgery, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of forgery; his punishment being assessed at three years’ confinement in the penitentiary. This record is before us without bills of exception or statement of facts. In the absence of the evidence, we are unable to review the questions presented in the motion for new trial The judgment will be affirmed.


text:
    Ex parte TOLBERT.
    (No. 3633.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    Appeal from District Court, Montgomery County ; J. Llewellyn, Judge. Will Tolbert was charged with murder, and applied for a writ of habeas corpus for bail. From an order fixing the bond, he appeals.
    Affirmed.
    McCall, Crawford & McCall, of Conroe, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Upon a charge for murder, relator resorted to a writ of habeas corpus for bail. On the trial the court fixed his bond at $750. From this he appeals. Without going into a statement of the evidence, or reasons for the conclusion reached, we are of opinion the judgment should be affirmed; and it is accordingly so ordered.


text:
    WILLIAMS v. STATE.
    (No. 3576.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.)
    Appeal from Criminal District Court, Dallas County; Robt. .B. Seay, Judge. J. E. Williams was convicted of unlawfully carrying a pistol, and appeals.
    Affirmed.
    C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol. In the absence of a statement of facts, no question is raised in the motion for a new trial we can review. The judgment is affirmed.


author: RASBURY, J.

text:
    SLAUGHTER v. CRISMAN & NESBIT et al.

    (No. 7206.)
    (Court of Civil Appeals of Texas. Dallas.
    May 15, 1915.
    On Rehearing, July 3, 1915.)
    1. Appeal and Error <&wkey;1002 — Review— CONCLUSIVENESS OP VERDICT.
    A finding of the jury, on conflicting evidence, that arbitrators had considered the merits of defendant’s claim for damages from plaintiff’s delay in the performance of a building contract, though made on the testimony of one of the arbitrators as against the other two, could not be interfered with on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. &wkey;> 1002.]
    2. Appeal and 'Error &wkey;>1043 — Harmless Error — Immaterial Error.
    In an action on an award- of arbitrators, and also upon the merits of the controversy upon a full and comprehensive pleading the sufficiency of which was not attacked by defendant in the court below, where the jury sustained the award and, independently thereof, found for plaintiff, the award, or any errors in the arbitration proceedings, became immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4115-4121; Dec. Dig. &wkey;> 1943.]
    3. Trial <&wkey;S65 — Finding—Construction.
    In an action on an award of arbitrators, a finding that defendant suffered no damage from loss of rentals due to plaintiffs’ delays did not necessarily mean that defendant did not suffer loss of rentals, but meant that the loss was due to delays for .which the plaintiff would not be liable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. &wkey;365.]
    4. Appeal and Error <@=3544 — Instructions —Bill op Exceptions.
    Objections to the refusal to give defendant’s requested charges and to the giving of certain charges for plaintiff, not reserved by bill of exceptions, as required by Acts 33d Leg. c. 59, could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey; 544.]
    5. Contracts <&wkey;242 — Building Contract-Construction — Claim op Delays in Performance — ’ ‘Alteration. ’ ’
    Under a building contract providing that if the contractor was delayed by the neglect or default of any other contractor, or by any alteration required in the work, there should be no allowance of additional time unless a written claim therefor was presented at the time, whereupon the superintendent should certify the additional time allowed, neither the delay to give defendant’s superintendent time to prepare plans for the foundation for a girder, which under the original plan projected into a window, nor a delay occasioned by the fact.that defendant’s superintendent lost the specifications of the frames for the windows, a delay occasioned by any “alteration,” or by fault of other contractors, but by the act of the superintendent so that no written claim of delay was necessary in either case.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1127; Dee. Dig. <@==242.
    For other- definitions, see Words and Phrases, First and Second Series, Alter.]
    6.Evidence &wkey;>271 — Self-Serving Declarations — Letters.
    In an action on an award of arbitrators, based upon a building contract, and upon the merits of the original controversy, involving the questions of delay in the work and damages therefrom-, plaintiffs’ letter to defendant in reply to defendant’s complaint at the delay in the work, attempting to. excuse the delay by pointing out the facts and circumstances relating to it, and plaintiffs’ letter to defendant’s architect, specifying facts entitling plaintiff to an extension of time, were self-serving declarations; and, hence, inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. &wkey;>271.]
    7. Appeal and Error <&wkey;1051 — Harmless Error — Admission of Evidence.
    The admission of such letters was not reversible error where the judgment was fully supported by other legal evidence to sustain the issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <@=31051.]
    8. Appeal and Error <&wkey;>999 — Review— Verdict.
    The Court of Appeals can only interfere with a verdict where there is no evidence to support it, or where the evidence is insufficient to support it, or where the evidence is conflicting but the verdict is manifestly unjust and against the weight of-the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921; Dec. Dig. <@=3 999.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by Crisman & Nesbit against C. C. Slaughter, in which the Texas Glass & Paint Company intervened. Judgment for plaintiffs, and for intervenor against plaintiffs, and defendant appeals.
    Affirmed.
    See, also, 152 S. W. 205.

      K. R. Craig, Towne Young, and Greenwood, Walker & Williamson, all of Dallas, for appellant Holloway & Holloway, of Dallas, for appellees.

       writ of error pending in Supreme Court,

   RASBURY, J.

To avoid repetition the following preliminary and undisputed facts shown by the record are related: Appellees, for a stipulated sum, contracted in writing with appellant to dismantle an old building on a lot in the city of Dallas belonging to appellant and to erect thereon a new one, as well as to make certain changes in and extensions to another building on the adjoining lot, also belonging to appellant. Appel-lees entered upon and completed the work, at which time appellant had in his possession a percentage of the contract price, directed in the contract to be retained until the work was completed. Appellant, at the time stated, claimed he was entitled to certain credits for work called for by the contract but omitted by agreement, as well as certain damages for loss of rentals resulting from the contractors’ failure to complete the work within the period fixed by the contract. Ap-pellees, at said time, claimed, in addition to the money retained by appellant under the contract, that they were due additional compensation for extra work. Failing to adjust these matters appellant and appellees in writing submitted their differences to three arbitrators, two of whom, W. Illingworth and Alex Watson, were named in the agreement, and authorized therein to select a third and disinterested arbitrator. The agreement to arbitrate provided in substance that those selected should determine (1) the amount, if anything due appellees for extra work, (2) the amount, if any, to be deducted from the contract price for work omitted, (3) the damages, if any, due appellant for delay in completing the work. The other provisions of the agreement to arbitrate conferred upon the arbitrators authority to proceed in such manner as they deemed convenient, to examine the buildings, plans and specifications, and other papers, and to hear, under oath or affirmation, any evidence by them deemed relevant. The agreement provided further for an equal division of the expense of the arbitration, and that a majority might make a valid award, which was to be in writing and signed in duplicate by the two making the award, and that when so made it should be final. Illingworth and Watson selected O. A. Gill as the third arbitrator, and in time Watson and Gill made the following award addressed to those interested, to wit:

“Gentlemen: Your arbitrators, Alex Watson and W. Illingworth, met on the 6th of April, and proceeded to investigate the claims for extra work done on the Slaughter building, and also the deductions due the owner for work and material omitted by the contractors. At the third meeting your arbitrators agreed on the selection of G. A. Gill as the third arbitrator. After a thorough investigation of the amount due the contractors for extra work, we find they are entitled to the sum of $2,340.95. This amount included the different items charged to emergency account, and we are informed that a check has been drawn in favor of Crisman & Nesbit for $357.65, which, when accepted by said contractors, will leave a net amount due them for extra work, the sum of $1,983.30. We also find that C. 0. Slaughter is entitled to the sum of $843 deductions for work not done by the contractors as provided for by the plans, etc. In regard to the question of de-murrage claimed by C. C. Slaughter, we, Alex Watson and C. A. Gill, do not think that his claims substantiated, therefore we do not allow the claim for demurrage.”

By addendum thereto Illingworth dissented from the findings of the majority as follows:

“I respectfully dissent from this last finding only, and do not think that said finding is justified either by the contract or the evidence.”

Appellant refused to be bound by the award for the reasons to be disclosed by his pleadings, and appellees sued on the award. There was judgment in the district court in favor of appellees. From the judgment appellant appealed to this court. The case was transferred to the Fourth Court of Civil Appeals, where the judgment was reversed, and the cause remanded for another trial. Slaughter v. Crisman & Nesbit, 152 S. W. 205.

On the second trial in the district court appellees alleged, as appears from the record they also did upon the first trial, not only the reference to arbitration and the subsequent award, which we have copied herein, but also, in anticipation of appellant’s defenses, alleged in the event the award was held invalid and it became necessary or proper to inquire into the merits of the matters submitted to the arbitrators or the original controversy, that then appellees had completed said work in accordance with the original contract, plans, and specifications, as set out in their declaration upon the award, and that appellees, at the special instance and request of appellant did furnish various extra material, and did perform various extra work upon said building in the sum of $3,443.73 over and above and not contemplated by the original contract, an itemized list of which was attached to the pleading. Appellant’s pleadings, without stating them categorically and in the order in which they were filed, were in reference .to the award, in substance, that the award was invalid, (1) because two of the arbitrators, before selecting the third, determined matters upon which they could agree and submitted to the third arbitrator such matters only upon which they disagreed, (2) because the witnesses before the arbitrators were not placed under loath or affirmation, (3) because the arbitrators concluded, as matter of law, that appellant was not entitled to damages and refused to hear testimony in that respect, their conclusion being based upon evidence that appellant agreed orally before the contract was executed that he would not claim damages for delay in completing the work. In reference to the count in the petition upon the merits of the original controversy appellant’s pleading was in substance a specific denial of the matters alleged by appel-lees and an affirmative charge that'appellees did not complete the work according to the terms of the contract and that as a result of such failure appellant was damaged in the loss of rentals in the sum of $12,000, together with the further sum of $997.75 paid out by appellant for work finished by appellant, but which should have been performed by appellees, and another small item properly chargeable to appellees. The Texas Glass & Paint Company intervened in the suit, asserting an interest therein against appellees which is mentioned for the sake of regularity, but concerning which no controversy arises on this suit. There was a trial by jury, to whom special issues were submitted, accompanied by appropriate definitions and explanations, and upon whose findings in that respect the court entered judgment, both upon the award of the arbitrators and upon the merits of the original controversy. The jury found as material to this opinion in answer to the special issues submitted: (1) That the award of the arbitrators should be sustained; (2) that without regard to fee award the proof showed that there was due from appellant to appellees on account of extra work $2,340.95, and that there was due appellant from appellees, on account of deductions from the contract price $843; (3) that without regard to the award the proof showed that appellant was not entitled to damages for loss of rentals on account of ap-pellees’ delay in completing the work. The amount retained by appellant was not disputed, being $18,181.27, and the court instructed the jury to return verdict for that amount, as well as verdict for intervener against appellees, and for foreclosure of the mechanic’s lien theretofore fixed in the manner provided by law, in favor of both appellees and the intervener, and, as we have said, concerning which no controversy arises on this appeal. Upon the findings stated judgment was entered both upon the award and, independently thereof, upon the merits of the original controversy for appellees for $23,874.30, being the amounts found by the jury with 6 per cent, interest from April 6, 1910, the whole to bear interest from date of judgment at 6 per cent. The judgment also provided for a foreclosure of the mechanic’s lien and sale thereof and protected the intervener, Texas Glass & Paint Company, by judgment over against appellees for the amount of its claim, directing that it be paid in full first out of any proceeds of the foreclosure sale. From the judgment indicated this appeal was taken.

Under the first, second, and third assignments of error various propositions are urged, but we forego a discussion of them for the reason that the specific issues were presented on the former appeal and decided adversely to appellant’s contention. Slaughter v. Crisman & Nesbit, 152 S. W. 205.

By the fifth and sixth assignments of error it is urged that the finding of the jury that the award should be sustained is contrary to the evidence, for the reason that the evidence discloses without dispute that one of the arbitrators in making the award was wholly influenced by a gross mistake of law. If the proposition asserted was supported by the record, and it was further made to appear that such gross mistake of law caused the arbitrators to refuse to consider the merits of the issue upon which was formed the gross mistake of law, it would invalidate the award. The record does not, however, sustain the claim made by appellant. The issue was tendered in another way ón the former appeal of this case, and revolves around the Question of whether or not the arbitrators considered appellant’s claim for damages for loss of rentals resulting from delays in completing the work within the stipulated period of time. The contract between appellees and appellant provided that the work was to be completed “on or before 217 days after getting full possession” of same. It was not completed for several months thereafter, and if such delay was due to the fault or negligence of appellees it is an elementary rule of law that appellant would be entitled to recover of them any loss of rentals traceable to that fact. Illingworth and Gill at trial testified that they did not consider appellant’s ' claim for damages on its merits, because they construed the contract between the parties to mean that appellant could not recover for delays, such construction being based upon the testimony of appellees concerning certain oral agreements of appellant made prior to or at the time of the signing of the contract, while Watson testified that they did consider the claim for damages on its merits. In reference to this issue it was said, in disposing of the former appeal, that “the conflict in the testimony of the arbitrators made an issue of fact proper to submit to the jury,” in order that they might determine whether they considered the issue on its merits as claimed by Watson, or held as matter of law that he was not entitled to recover as claimed by Gill and Illingworth. It was so submitted to the jury in a very clear and favorable charge prepared by counsel for appellant in their own language. Having been so submitted our right of interference ends, however much we may fail to understand the disagreement between the arbitrators or why the jury adopted the version of one witness in preference to that of two, none of whom had been impeached.

We further conclude in reference to the issue thus made, as well as all other issues presented on the question of whether there was or not a valid and enforceable award by the arbitrators, that such issues are immaterial. A reference to the pleading herein stated shows that liability was sought against appellant first upon the award, and secondly upon the merits of the original controversy, and that the pleading in that respect is full and comprehensive and was not attacked in the court below as being insufficient in that respect. Evidence was introduced by appellant on the particular issue we are discussing, showing the amount of time the various oflfices in the building were vacant after the expiration of the stipulated period for the completion of the building, the reasonable rental value of same, and that there was a demand for same, and that they could have been rented but for the delay occasioned by appellees. On this branch of the case the jury found that appellant suffered no damage resulting from loss of rentals due to delays by appellees, and it is not charged that the evidence on this issue did not sustain the finding of the jury. This finding, of course, does not necessarily mean that appellant did not suffer loss of rentals, but, as we interpret it, that the loss was due to delays caused by appellant and for which appellees would not be liable. It is said that in a proceeding to set aside an award the entire controversy should be submitted to the jury, the grounds for vacating the award, and also the merits of the ease. If the jury find the award should not be set aside, they proceed no further, otherwise they pass upon the merits of the case. Bowden v. Crow, 2 Tex. Civ. App. 591, 21 S. W. 612. Here, however, the jury were required to pass upon both issues. In so doing they not only sustained the award, but found, after hearing the testimony claimed to have been excluded on arbitration, as well as other evidence, that appellees, independent of the award and upon the merits of the original controversy, were entitled also to recover. With such a finding upon the merits of the original dispute, regardless of the award, it seems clear that the award or any errors in the proceedings become immaterial, and a discussion thereof largely academic.

The seventh, eighth, ninth, tenth, eleventh, and seventeenth assignments of error complain of the refusal of the court to give certain charges specially requested by appellant, and complain of the giving of certain charges specially requested by appellees. Appellees object to a consideration of the assignments on the ground that it does not appear from the record that appellant reserved his objections to the action of the court by bill of exception. Such is the record and it has been repeatedly held that in such cases this court may not review the trial court’s action under the provisions of the recent amendment of the practice acts. Gen’l Laws, Reg. Sess. 33d Leg. p. 113.

The twelfth and thirteenth assignmeiits complain of the admission of testimony for the purpose of establishing certain delays claimed by appellees to have been caused by appellant. The original plans and specifications called for a girder through the Building intended as a support for the ceiling joists. As the .work progressed it was discovered that according to the plans one end of the girder projected into a window, and it was necessary to re-arrange the plans so as to provide a support for the girder. The superintendent for appellant consumed about two weeks in preparing new plans or details in order to meet the emergency disclosed by the old plans, and such delay appellees charged to appellant. As bearing on this issue section 7 of the building contract provides that:

“Should the contractors be obstructed or delayed in the prosecution or completion of the work by the neglect, delay, or default of any other contractors, , or by any alteration which may be required in the said work, or by any damage which may happen thereto by fire, or by the unusual action of the elements, or otherwise, or by the abandonment of the work by the employés through no fault of the contractors, then there shall be an allowance of additional time beyond the date set for the completion of said work; but no allowance shall be made unless a claim is presented in writing at the time of such obstruction or delay. The superintendent shall award and certify the amount of additional time to be allowed; in which case the contractors shall be released from the payment of the stipulated damages for the additional time so certified, and no more. The contractors may appeal from such award to arbitrators constituted as provided in article third of this contract.”

Notice in writing of the claim stated was not presented in writing. The claim is made that such notice should have been in writing, and that hence the admission of the testimony was error. We think not. On former appeal it was held in effect that the purpose in requiring appellees to give notice in writing of delays occasioned by others was to afford appellant a prompt opportunity to investigate and end same, but that the provision for written notice of delays caused by others could not be invoked by appellant in case of delays due to the fault of the appellant, except in eases “requiring alterations.” Thus, the only question is, Does the evidence show an alteration? We conclude not. As shown by the testimony sought to be excluded it does not appear that any alteration in the girder was contemplated. It remained in the same place in the building where it was originally placed. The sole purpose of the delay was to give appellant’s superintendent time within which to prepare details or plans for the building of some sort of base or foundation for the girder in or about the open place into which the original plans carried it. Delay for the purpose of adding to or curing omissions.in the plans adopted for remodeling the building cannot fairly be said to be an alteration of the work already planned. The original plans were not altered, rather they were added to. The time lost was, as we have said, not due to any delay in making an alteration in the work, but was lost in preparing plans for an addition thereto; and henee not contemplated by the provision of the contract invoked.

The fourteenth assignment also complains of the admission of testimony. The witness Nesbit was permitted to testify that Rowe, appellant’s superintendent, lost the specifications of the frames for the windows of the building, which occasioned a short delay. The objection to this testimony was not that the loss could not be shown to have resulted from the fault of appellant, but that no allowance could be made therefor, because the claim was not presented in writing in compliance with section 7 of the building contract. There was no notice in writing, but it is clear that notice in writing was not necessary, since the delay was not occasioned by any alteration in the building or by the fault of other contractors, but as said on the former appeal was due to the act of appellant’s superintendent, regarding which notice was not necessary.

The fifteenth assignment complains of the admission in evidence of a letter written by appellees to appellant while the work was in progress. The purport of this letter, which seems to have been in reply to remonstrances of appellant occasioned by delay in the work, is to justify and excuse delay in the work, and points out categorically alleged facts and circumstances in that respect; and the sixteenth assignment complains of the admission of a letter from appellees to appellant’s architect, Bulger & Son, the purport of which is to specify certain facts entitling them to an extension of time in which to complete the work. The objection to the admission of the letters is that the contents are self-serving declarations, and hence inadmissible. While we are of the opinion that the letters complained of were inadmissible for the purpose of establishing the issues to which they related, because self-serving, at the same time their admission alone is insufficient to cause a reversal of the case in view of the fact that abundant testimony was properly introduced to sustain the issue. Appellees, at great length and in detail, testified to the matters referred to in the letters and were sharply cross-examined by counsel for appellant in that respect. Hence the rule that the admission of improper evidence is not reversible error on appeal, where the judgment is fully supported by other legal .evidence, applies; or as said in Boone v. Miller, 73 Tex. 557, 11 S. W. 551, “the improper admission of other and merely cumulative evidence furnishes no ground for disturbing the verdict of the jury.” All cases bearing directly or indirectly on this issue will be found collated at page 798, vol. 1, Michies’ Dig. Tex. Rep.

By the eighteenth assignment it is asserted that the evidence adduced upon trial of the case upon its merits does not support the finding of the jury that appellant was not entitled to any damages for loss of rentals due to delay in completion of the work, and for that reason should be set aside. In support of appellant’s contention his counsel has assembled and reviewed under this assignment the evidence on this issue. Counsel for appellees have performed a similar service. In addition we have considerably examined the evidence contained in the statement of facts on the point.

Our right to interfere with the verdict of the jury is circumscribed and may be exercised only where there is no evidence to support the verdict, or where the evidence is insufficient to support the verdict, or where the evidence is conflicting but the verdict is manifestly unjust and against the weight of the evidence. Having in mind the rule stated, we conclude that we are not authorized in setting the verdict aside, particularly in view of the fact that the same issue has been twice submitted to a jury and found adversely to appellant.

Finding no reversible error in the record the judgment is affirmed.

On Rehearing.

It is earnestly urged on rehearing that we erred in refusing to consider the seventh, eighth, ninth, tenth, eleventh, and seventeenth assignments of error. Those assignments complain either of the refusal of the court to give certain special charges requested by the appellant or of the action of the court in giving certain special charges requested by appellees. Our refusal to consider the assignments was grounded on the conclusion that no sufficient bill of exception was taken to the action of the court in the respect stated. The purported bill of exceptions shown by the record is obviously the objections leveled against the court’s main charge and certain special charges asked by appellant, such objections being prepared presumably by appellant when the court’s charge with the special charges was presented to appellant for that purpose preliminary to reading same to the jury. In fact such conclusion is sustained by the indorsement of the court that such objections were presented to him before reading his charge to the jury and before argument. There is no order approving same and ordering it filed as a bill of exceptions, in fact no action by the court other than just recited, nor are such objections by law a part of the record of the case. There is, however, another and anomalous feature of the objections. It is recited at the conclusion of the instrument that appellant “excepts to the refusal of the court” to give appellant’s said several special charges and “excepts to each and all the special issues.” With the exception of the notation at the conclusion of the objections they constitute no more than a memoranda showing that objections to the court’s action had been made before trial and would authorize and form the basis of the bill in case the court refused to conform its charge to the objections, and appellant desired to review the court’s action in that respect. Otherwise, it would appear that the exception was taken before the ruling of the court upon the objections. Rooking at the matter in such manner as will reconcile what is actually contained, in the objections with what 'could have transpired at trial, we assume that all special charges and the court’s general charge was presented to counsel in compliance with the rules, and that before the objections were prepared the court informed counsel not only what would be done with reference to appellant’s objections to the main charge and ap-pellees’ requested charges, but what would also be done with appellant’s requested charge, whereupon what was intended to be combined objections and exceptions were prepared. The record in a measure inferentially sustains such view, since all the charges complained of were refused at the same time the objections were filed. There is a serious question in our minds, however, whether these facts show a substantial compliance with the law, since the verification of the court that appellant did except is, as stated, wholly inferential and is deducible from no indorsement of the judge, but rests upon what is contained in the objections. We have, however, considered the several assignments of error and have reached the conclusion that nothing is shown thereby which can change our original disposition of the case, based, as it was, largely upon the fact that the jury found adversely to appellant upon both the award of the arbitrators and the cause of action independently thereof, upon charges fairly, fully, and favorably presenting appellant’s defenses. Having reached that conclusion we feel that a discussion of the several assignments seriatim is unnecessary.

The motion for rehearing is overruled.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    GREENE v. CITY OF SAN ANTONIO et al.
    (No. 5545.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 9, 1915.
    On Motion for Rehearing, June 28, 1915.)
    1. Municipal Corporations <&wkey;661 — -Streets —Regulations.
    The streets in cities are under the paramount control of the Legislature, which may confer on the cities exclusive control over them, and when that is done, a city may impose reasonable conditions on the right to use the streets.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 1432, 143íH436; Dec. Dig. <®=^661.]
    2. Municipal Corporations <&wkey;661 — Streets —Regulations.
    A regulation by the Legislature, or by a city to which exclusive control of the streets has been conferred, of the use of streets must, to be valid, be reasonable as measured by the necessity of the occasion and the rights of the public.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 1432, 1434-1436; Dec. Dig. &wkey;3661.]
    3. Municipal Corporations <&wkey;661 — Use oe Streets — Regulations.
    A city having the exclusive control over its streets may prohibit the prosecution of a private business on a street, or grant a privilege to conduct a business thereon.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 1432, 1434-1436; Dec. Dig. &wkey;>661.]
    4. Municipal Corporations <&wkey;703 — Use op Streets — Regulations—Validity — “Carrier op Passengers.”
    One conducting a jitney business on streets is a carrier of passengers for hire, and the city having exclusive conti-ol over its streets may adopt reasonable regulations and require a bond for protection of citizens.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. &wkey;>703.
    Por other definitions, see Words and Phrases, First and Second Series, Carrier of Passengers.]
    5. Constitutional Law e&wkey;208 — Class Legislation-Use op Streets.
    A city ordinance, which applies to all persons using the streets of the city to operate a vehicle in local street transportation, is not invalid as class legislation.
    [Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig §§ 649-677; Dec. Dig-. &wkey;j 20S.]
    6. Municipal Corporations <&wkey;680, 681 — Use op Streets — “Franchise.”
    A city, authorized by its charter to grant franchises- for the use of its streets for public purposes, may grant a franchise for the operation of jitneys for local street transportation, a “franchise” being a privilege not belonging to an individual or corporation as of right, but conferred by a sovereign or government on, and vested in, individuals or corporations.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1459-1466; Dec. Dig. &wkey;?680, 681.
    For other definitions, see Words and Phrases, First and Second Series, Franchise.]
    7. Municipal Corporations <&wkey;703 — Regulation op Business — Charter Authority.
    A city authorized by its charter to license and regulate trades and business carried on in the city has power to regulate the operation of jitneys, using the streets for local street transportation, and to require a bond by operators for the protection of citizens.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. &wkey;703.]
    On Motion for Rehearing.
    8. Constitutional Law &wkey;>303 — Due Process op Law — Ordinances—Validity.
    An ordinance of a city regulating the operation of jitneys using streets for local transportation and requiring operators to give a bond for the protection of citizens, does not deny due process of law merely because it provides for a forfeiture for certain infractions of the ordinance.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 863-866; Dec. Dig. <&wkey;> -303.]
    9. Licenses <&wkey;6 — Use op Streets — Jitney Business.
    A city having exclusive control of its streets, with power to grant franchises for their use, and to license trades and business, may prohibit the use of streets for the private business of one operating a jitney as a common carrier of passengers, or may give permission for such use and compel the payment of a license fee.
    [Ed. Note. — Eor other cases, see Licenses, Cent. Dig. §§ 5, 6, 19; Dec. Dig. <&wkey;6.]
    10. Municipal Corporations <&wkey;680, 681— Franchises — Power to Grant.
    A city charter, authorizing the granting of franchises for the use of streets for a public purpose, covers any franchise subject to the limitation that it must be made in the interest of the public, and the authority conferred is not confined to granting franchises only to individuals and corporations granted a designated right of way.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1459-1466; Dec. Dig. <S=^680, 681.]
    11. Licenses <&wkey;l — Regulation oe Streets— “Occupation Tax.”
    Under a city charter authorizing the city to license trades and business, and charge license fees which shall not be construed as occupation taxes, a license fee, imposed for the use of streets for jitneys as carriers of passengers, is not an occupation tax.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. § 1; Dec. Dig. <5&wkey;l.
    For other definitions, see Words and Phrases, First and Second Series, Occupation Tax.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by R. P. Greene against the City of San Antonio and others. From a judgment of dismissal, plaintiff appeals.
    Affirmed.
    Bosshardt & Wicks and W. C. Church, all of San Antonio, for appellant. Geo. R. Gillette, Robt. G. Harris, and R. J. McMillan, all of San Antonio, for appellees.
   FLY, C. J.

The amended petition fails to disclose the names of the defendants, but merely refers to them as defendants who had been cited and appeared and answered, but by a reference to the general demurrer it is ascertained that it is signed by the attorneys for the city of San Antonio, Clinton G. Brown, mayor, and Fred Lancaster, chief of police. The suit was instituted to temporarily restrain the enforcement of a certain ordinance regulating the operation of street ears, jitneys, motor omnibuses, and other vehicles using the streets of San Antonio for local street transportation. It seems that a temporary restraining order was entered on March 27, 1915, and on May 19, 1915, the general demurrer was sustained to the petition, and the cause was dismissed, but under an agreement of the parties the restraining order was continued in force until June 9th, then to be dissolved.

The highways of a state, including the streets in cities and towns, are under the paramount and primary control of the Legislature, and all powers of cities and towns over streets must depend upon the authority granted in special charters or general laws applying to such municipalities. Whatever power the state has over its highways can be granted by it to the municipalities it has created, and in this instance “exclusive control and power” over the streets, alleys, sidewalks, and public grounds within its bounds have been granted to the city of San Antonio, not only in the special charter granted it, but by the general laws of the state., "The streets do not belong to the city or town in which they may be situated, but all powers over them are derived from the Legislature by charter or statute. They are affected by a trust for the public use and benefit. The primary design in laying out and constructing streets is for the purpose of travel and passage for the public, and rights as to ingress and egress, nearly resembling private rights, are also given abutting owners. Having exclusive control over the streets, the Legislature, or those to whom it has delegated powers over streets, have the right and authority to impose reasonable terms and conditions upon the right to use them. Subject to rights of abutting owners, streets may be closed to all business traffic, the speed of vehicles regulated, obstructions may be prevented or removed, licenses to use the streets may be required, travelers may be required to obey the directions of the police, vehicles having heavy loads may not be permitted on certain streets, or be required to have wide tires, the weight of loads may be limited, and hacks may be compelled to remain at certain stands. These are only a part of the many regulations that have been held valid. Dill. Mun. Cor. §§ 1163-1167.

The only absolute right that the private individual has in the streets of a city, not including the abutting owner, is the right to convey himself or property from one place to another, and even that right may be regulated. The individual usually has the right to cross a street whenever he may so desire, but the municipality may prevent him from crossing at any place except" corners, and under proper circumstances may prevent him crossing at all, as when there may be danger or when funeral or other processions may be passing. No individual has the inherent right to use a street or highway for business purposes. No man has the right to use a street for the prosecution of his private business, and his use for that purpose may be prohibited or regulated as the state or municipality may deem best for the public good. Not having the absolute right to use streets for the prosecution of private business, within the bounds of reason, where no discrimination is shown, persons or classes of persons may be controlled or regulated in the use of streets.

This is a self-evident proposition, for, if it were not so, sidewalks and streets could be rendered impassable by those vending their wares or soliciting patronage. In advocating the rights of the individual, the principle should always be kept in view that in any form of civilized society, and especially in a government founded upon the will of the majority, natural rights, the exercise of which is deleterious and harmful to the rights, comfort, and happiness of the majority, can and must be restrained or taken away. The price paid by every citizen for the right to enjoy the privileges and comforts of civilized life is the surrender of certain natural rights. The fewer natural rights that can be disturbed in the protection of the rights of society, the rights of the majority, points the way to the ideal government, but the wishes, the desires, the natural rights of the individual, must, in the highest form of government ever conceived by man, in some points clash with the rights of the majority, and the individual must surrender those rights to the public good. The more complex the affairs of men become, the more the natural rights of individuals must be infringed upon for the public good. There must inevitably be more regulation, more necessity for surrender of certain rights, in the crowded city than in the rural community, and to protect the rights of the public the Legislature is clothed with authority to enact and enforce such laws and regulations as may be necessary in each community. The validity of such regulations must be measured by the necessities of the occasion and the rights of the public. The regulation must be reasonable, but its reasonableness will be measured by public rights.

It has been held time and again that cities have the authority to regulate or even to prohibit the prosecution of a private business on a street, and that such business cannot be engaged in lawfully without a grant of some character from the government. Whether the grant be denominated a franchise, a license, or a privilege would not matter, for the distinction is one in name and not in substance. Dill. Mun. Corp. § 1210, and notes. The author cited defines a franchise—

“to be a particular privilege which does not belong to the individual or corporation as of right, but is conferred by a sovereign or government upon, and vested in, individuals or corporations.”

The right to solicit passengers and convey them for hire from one part of the city to another, as appellant does, is a privilege, a right, or a power, which he cannot exercise as of right, but its lawful existence must depend upon a grant whose character will not be changed by calling it a franchise, a privilege, or a license. The rights given could, with perfect propriety be named a franchise.

It is not contended by any one that the city would have the right to prevent appellant from riding in his automobile on any street in the city, except under certain circumstances, for the streets were builded for that purpose, among others, but appellant is not only desirous of riding in his automobile on the streets of San Antonio, but he has established a business which he wishes to conduct on the streets without leave or license from the city, and without the payment of anything therefor. No one would contend that the city would be powerless to n . protect itself from scores of fruit vendors who might stand upon the streets and seek for customers, and no reason would be necessary except that streets were constructed for use by the public, and not for the prosecution of a private business. Can it be said that rushing along the streets, stopping at curbs, and soliciting passengers and conveying them for a sum of money to different portions of the city is not a business? 'It is not only a business, but if the allegations of the petition be true, quite a lucrative one. If the. peanut vendor, the pop corn seller, or the peddler can be regulated in his use of the streets, the mind can offer no reason why the “jitney” driver should not be regulated in his traffic on the streets.

But it is contended that the regulation must be reasonable. Bet that rule be admitted, and where is the unreasonableness of the ordinance to be found? The drivers of jitney cars have placed in their charge and keeping the lives and persons of men, women, and children, and it would not only be unreasonable, but criminal, for the city to turn them loose on the streets unrestrained by any restrictions. Every owner of an automobile is required to obtain a license before he can use the streets and roads, and why should not the owner of a ear who carries passengers for hire be required to obtain a license and be subject to inspection and regulation? If such vehicles are to be permitted on the streets, no valid reason can be given for not requiring them to serve the public to the best advantage, and as that will be attained by a regular route and regular schedule, they have been prescribed.

It is contended that a city is not authorized to require a bond- for the protection of citizens, and certain authorities are cited to sustain the contention, but they fail to do so. In the case of Taylor v. Dunn, 80 Tex. 652, 16 S. W. 732, it was not held that the city of Austin could not require a bond that would inure to the benefit of third parties, but, on the other hand, the right to require such a bond is recognized. When the charter gave the exclusive control of the streets to the city of San Antonio, it necessarily gave it the authority to require reasonable conditions upon which use of the streets should be granted. By the grant of exclusive control of the streets, there was necessarily given, by implication, power to require of any one who desired to operate a dangerous agency upon the streets the giving of some guaranty for the protection of the lives and limbs of citizens. If the city has the right to the performance of certain conditions before a license to use the streets would be given, it could require any reasonable condition. The right of bodies politic to require bonds for the protection of third parties is recognized in the case of Nelson Co. v. Stephenson, 168 S. W. 61.

The jitney service of the country is of such recent date that there are but few cases which have arisen in connection with its regulation, but regulation of such service is in no wise different from the regulation of any trade or business, or the running of stages or street cars on the streets, and decisions on those subjects are directly applicable to this new trade, occupation, or business of carrying people from one part of the city to another for five cents a person. As said in the Maine case of State v. Barbelais, 101 Me. 512, 64 Atl. 881, in regard to an ordinance prohibiting carrying on trade on a street without a license:

“The ordinance is not inconsistent with any provision, * * * and we are unable to perceive any unreasonableness in an ordinance, when reasonably construed, the object of which is to prevent the carrying on of trade or business in the public streets of the city. Upon the contrary, it seems to us to be a salutary regulation by the municipality as to the use of its public streets. Streets are located and constructed, and the private property of individuals taken therefor, by the exercise * * * of eminent domain, when necessary, for the public purpose of travel, and not that other individuals may use these streets for the private purpose of carrying on trade or business therein. * * * The purpose of this ordinance was to preserve the use of the streets in the city for the public purposes for which all streets and ways are constructed.”

To the same effect are the cases of Nightingale, Petitioner, 11 Pick. (Mass.) 168, and Commonwealth v. Ellis, 157 Mass. 555, 33 N. E. 651.

In the case of the Fifth Avenue Coach Co. v. City of New York, 194 N. Y. 19, 86 N. E. 824, 21 L. R. A. (N. S.) 744, 16 Ann. Cas. 695, it was held that the right to run coaches on Fifth avenue was a franchise, and, further, that the city had the authority to grant or withhold the right to run coaches on the streets. The decisions in Hatfield v. Straus, 189 N. Y. 208, 82 N. E. 172, State v. St. Louis, 161 Mo. 371, 61 S. W. 658, and People v. Clean Street Co., 225 Ill. 470, 80 N. E. 298, 9 L. R. A. (N. S.) 455, 116 Am. St. Rep. 156, condemn conducting a private business in the street even where expressly authorized by the municipality, unless there, is some corresponding benefit to the public.

In the case of Van Norder v. Sewer, Water & Street Commission, 90 App. Div. 555, 86 N. Y. Supp. 445, it was held that an ordinance, which prohibited hackmen from, allowing any horse or vehicle to stand in any public street of the village for hire, or to walk or drive through the streets soliciting, was valid. The hackman in that case had his license forfeited for. violating the provisions of the ordinance.

In the case of Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668, the Court of Civil Appeals of the Third District, in upholding an ordinance which prohibited the sale of country produce upon the streets, said:

“The ordinance in question does not undertake to prevent or interfere with the right of the appellees to purchase, sell, or otherwise deal in the products referred to upon their own premises; nor does it prohibit other persons from carrying such products and delivering them to appellees upon their premises. It may, and doubtless, will, interfere with the privilege, formerly enjoyed by the public at large, of exhibiting such products upon the streets and in other public places within the territory referred to, and the convenience resulting therefrom to the .appellees as dealers in such products. But ap-pellees have no vested right to make marts of the streets, alleys, and other public places; and to deny them the privilege of so doing is not to destroy or deteriorate any of their property rights.”

So in this case appellant has never had any vested right to use the streets of San Antonio to engage in the business of a common carrier of passengers for hire, and no right of his is infringed or' invaded by the ordinance requiring certain things to be done in order to enter into business on the streets, which (have, at the expenditure of largje sums, been placed by the city in prime condition for automobile travel. 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 conditions are reasonable, proper, and are promulgated in the interest of the general public.

There is no discrimination or class legislation involved in the ordinance. It is made to apply to “any person whomsoever” who uses the streets “for the purpose of operating or causing to be operated thereon any vehicle engaged in local street transportation.” The rule is that a law is general and uniform in its operation, and not open to attack on the ground of being class legislation, when it affects equally every one engaged in the same business. Receiver v. Cook, 86 Tex. 630, 26 S. W. 486, 40 Am. St. Rep. 878; Ins. Co. v. Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504; State v. Railway, 100 Tex. 153, 97 S. W. 71.

The city is duly authorized by its charter to grant franchises for the use of the streets and public places for public purposes alone, and were appellant not engaged in the public service of transporting passengers, the city would not be authorized to license his automobiles to carry passengers for hire. There can be no difference in granting a franchise to run cars on steel rails and to run them on the street surface. There can be no more reason for not exercising the same control over automobiles engaged in transporting passengers for pay than in supervising and controlling vehicles that can only move on metal rails. In fact there is greater inconvenience to traffic on the streets and more danger of accidents from numbers of automobiles dashing along at a high rate of speed' in the hot quest for nickels than in cars confined to certain well-defined tracks. The ordinance does not indicate any desire upon the part of the city government to destroy or unnecessarily hamper the new mode of transportation, but it is merely exercising that regulation of it which experience has demonstrated must be applied to any individual or corporation serving the general public. Appellant’s business is that of a common carrier, subject to the same liability and under the same obligations to the public as any other common carrier. Babbitt, Motor Vehicles, §§ 620, 621; Van Hoeffen v. Columbia Taxicab Co., 179 Mo. App. 591, 162 S. W. 694.

Not only is the city of San Antonio given exclusive control of its streets, but it is given the power—

“to license, regulate and inspect all trades, professions, occupations, callings and business carried on in said city, whenever and wherever the council [now commissioners] shall deem such regulation, inspection and license necessary or proper for the good order, public health, public safety or general police regulation of said city, and charge license and inspection fees therefor, and such fees shall not be construed as occupation taxes.”

That section of the charter, which was 99 in the aldermanic charter, has passed under the same number into the commission charter, and is full authority for every provision in the jitney ordinance.

The individual owner of an automobile pays a license to operate it in San Antonio-, the speed at which he shall not go, the manner in which he shall place his car at the curbs, the time he is allowed to stay in certain places, the side of the street on which he shall operate his machine, the manner in which he shall sound his horn and turn corners, and various other restrictions are placed upon him, and the man or corporation can have no ground to complain that his business of common carrier on the streets is reasonably regulated. There can be no doubt of the legality, propriety, and reasonableness of the ordinance.

The judgment is affirmed.

On Motion for Rehearing.

Reference of a San Antonio daily newspaper to some decision by some nisi prius court in Memphis, Term., is cited as an authority to the effect that the state or a municipality cannot require a bond to protect its citizens from damages incurred at the-hands of á common carrier. This cannot be recognized by any appellate court as authority. The decision, if in fact it was made, of the Tennessee trial court, is in the face of a de-cisión of the Supreme Court of the state of Washington, in which it was held:

“Now the act in question does two things of importance as legislative functions, viz.: (1) It recognizes a new sort of common carrier; and (2) it enacts a system of regulation of such common earners. It is true that it does not limit the speed of such passenger ears, nor the number to be permitted on given streets, nor the capacity of the car, nor the routes, nor rules of the road. It does; however, regulate them to the extent of requiring them to obtain permits from the secretary of state to operate, and to furnish a surety bond in a specified amount to the approval of the licensing officer, with specified conditions therein and provides for civil actions to recover against the carrier and the bond for any injury occasioned by the negligence or unlawful act of such carrier.” State v. Howell (Wash.) 147 Pac. 1159.

That language was held in regard to an act of the Legislature, providing that any person, firm, or corporation desiring to engage in the business of carrying or transporting passengers for hire in any motor propelled vehicle over and along any public street, road, or highway, in any city of the first class, should obtain a license and give an indemnity bond. The Washington court held the act constitutional saying:

“The reasonable regulation of common carriers by legislation has always been recognized as a proper exercise of the police power touching the safety and welfare of the public. No citation of authorities is deemed necessary to sustain the above statement in these terms. Whatever, therefore, may be the general effectiveness of this law as to regulating such common carriers, it certainly can be said with conviction that it is an attempt at such regulation. For instance, it may have the effect of limiting the number of such carriers upon the streets by the restraints put upon them; and it may conduce to the safety of passengers carried by such vehicles and others upon the streets by the restraints placed upon them. At all events, the body of the act certainly bears all the semblance of an attempted exercise of police power, and of coming within the excepted provisions of the seventh amendment to the Constitution.”

The city of San. Antonio is given exclusive control of the streets, and if the Legislature has the power to require a bond for the protection of the citizen against the negligence of common carriers along a street, the municipality to whom its powers have been delegated would have the same authority. “The power possessed by the state to attach as a condition to the grant of a franchise to a quasi public corporation the performance of duties beneficial to the public may be exercised by the municipality under a delegated power to grant to such a corporation the use of its streets.” Dill. Mun. Corp. § 1229.

The state has assumed and exercised the right to forfeit titles to public lands by the stroke of a pen upon the part of the land commissioner, has authorized and enforced the right to forfeit liquor licenses by the comptroller, and these acts are held to be done in due course of law. How then can it be claimed that section 9 of the ordinance which provides for a forfeiture in case of certain infráctions of the ordinance be held to be in contravention of the-fourteenth or any other amendment to the Constitution of the United States? The Supreme Court of Texas has held that a title to land was forfeited by the comptroller writing the words “Land forfeited” upon certain papers in his office. Brightman v. Comanche Co., 94 Tex. 599, 63 S. W. 857; Hoefer v. Robison, 104 Tex. 159, 135 S. W. 371. Can it be that the right to operate an automobile for hire in San Antonio is more sacred than the right of a family to a homestead? Has the owner of such automobile not had a day in court when he is given notice to appear before the city council to answer to charges as to violation of the conditions of his license, and is given the right to introduce witnesses and be heard in his defense? There is no merit in the contention. If the man whose license is forfeited is dissatisfied, there are ways by which he can carry the matter into the courts of the state. Appellant has no right or authority whatever to conduct his business on the streets of San Antonio and, in order to obtain permission to do so, must comply with the conditions prescribed by the municipality. Appellant desired to use the streets for private purposes of gain, and the city has the absolute right to prohibit the use of the streets for his private business, and in case it gave permission for such use had the right to compel the payment of á license fee.

While protesting that the ordinance was passed not to regulate, but to destroy, the new cheap transportation for the benefit of “intrenched interests,” appellant loses sight of the fact that when he.took up the occupation of a common carrier he became subject to the rules governing common carriers, and cannot contend that the same regulation should be applied to him that is applied to the individual riding in his private carriage or wagon or automobile on the street. There is nothing in the ordinance or in the record justifying the wholesale charge that the ordinance was passed in the interest of a certain corporation, and was intended to destroy rather than regulate the motor car services on the streets.

In the case of Hoefling v. City of San Antonio, 85 Tex. 228, 20 S. W. 85, 16 L. R. A. 608, the business being taxed was one that appellant had the right to engage in, at the place in which he desired to prosecute it, but in this appellant seeks to engage in a business on the streets which he has no right to engage in, and which could be absolutely prohibited by the city. The occupation of a common carrier on the streets of a city is not one like that of a grocer or druggist that can be engaged in at the will and pleasure of any one with the necessary means, and the occupation tax for which could not exceed one-half that levied by the state, but the “jitney” occupation is one that cannot be exercised except by the authority and under the conditions prescribed by the city.

There is no strength or force in the contention that the city of San Antonio is not* empowered to grant a franchise unless at the same time it grants a right of way, or, in other words, that a franchise cannot be granted except to a railway company. In section 101 of the charter of the city, of San Antonio it is provided:

“Franchises for the use of the streets and public places of the city may be granted by the affirmative vote of four commissioners, but no franchise or privilege for the use of any of the public streets or other public places of the city shall ever be granted for any but a strictly public purpose, and any grant of a franchise or privilege hereafter made for the use of any of the public streets or other public places within said city, where from the nature of the case the use thereof would be private, or only colorably public, or chiefly for private purposes, shall be absolutely void.”

That provision of the charter is broad enough to cover any franchise granted by the city, the only limitation being that it must be made in the interest of the public. That section is the one giving the authority to the city to grant franchises or privileges, and such authority is not confined to granting franchises only to individuals and corporations that are granted a designated right of way. Sections 103 and 104 speak of rights of way merely in connection with extentions of existing charters.

The contention of appellant as to the license fee being an occupation tax was anticipated and fully disposed of by the Legislature in section, 99 of the city charter, in which authority is given to charge license and inspection fees, and provides that “such fees shall not be construed as occupation taxes.”

The motion is overruled.
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