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was a construction of the agreement under charge does not assume that fact. Even which he signed and we think invaded the though Wheatley and Morris be considered province of the jury. His statement that he as principals, they had the right to sign the was a surety involved a legal conclusion note and deposit it with the payee, upon confrom the facts and circumstances surrounding dition that it should not become valid and the transaction. Connor v. Uvalde National binding until other principals had also sign· Bank, 172 S. W. 175; McClung v. Watson, ed it. The charge is not subject to the criti165 S. W. 532; Sackville v. Storey, 149 S. W. cism. Merchants' National Bank V. Mc239.

Anulty, 31 S. W. 1091; Parker v. Naylor, [8] Under the ninth and tenth assignments 151 S. W. 1103. This also disposes of the appellant complains of the admission of cer- fourteenth assignment. tain evidence from the defendant Wheatley, The fifteenth assignment is disposed of by in which Wheatley objected to switching what we have said with reference to the some of the collaterals to protect a note of first, fourth, and seventh assignments. $1,100. The evidence is as follows:

[13, 14] Under the sixteenth and eighteenth “The night before we decided to throw Lank- assignments appellant complains that the ford Furniture Company into bankruptcy there was a meeting of a bunch of us in the Lankford court refused to give two special charges Furniture shop and we talked the matter over. with reference to the alleged failure of the We talked in regard to the collateral security of plaintiff to exercise diligence in collecting the $2,500 on the note. Mike (Le Master) said the collateral securities. he would switch it to another note at the time, the defendants had given three separate notes

It appears that talked about something else then, and Mr. Zim- for the debt in question-one dated July 25, merman brought the matter up, and said we 1912, which was renewed in a note dated Noought to help the bank out, and Mike said he vember 1, 1912, and again renewed by note would switch the collateral security from that $2,500 note, and I spoke up and said he would described in the original petition, dated do no such thing. I said, if the bank had to April 1, 1913. We agree with appellant that, lose their amount, I will keep my part of the if for any reason defendants could escape balance, whatever it is, and take care of our liability on the note last signed, they might home people, and let the others suffer.”

nevertheless be liable on the note immediate[9] In the thirteenth paragraph of the first ly preceding it, and, if relieved from liabilisupplemental petition appellant alleged that ty on that note, they could probably then be there was an agreement that the collateral held on the first note executed. These speshould be divided between the $2,500 note cial charges were intended to instruct the and the $1,175 note, and we think this tes-jury with reference to the rights of the plaintimony was pertinent and admissible upon tiff under each of the notes; but since the that issue. A material issue made by the

verdict was a general one, and we are not pleadings was that the plaintiff had failed able to determine from the record upon to account for certain collateral securities which note it was based, we cannot, of held by it as security for the indebtedness of course, decide whether or not the failure to the defendants, and defendants sought relief give either of the charges was error. If the to the extent of the value thereof. This is- finding of the jury was based upon the note sue having been raised by defendants, the last executed, the failure to give the charge burden of proof was upon them to show the

was harmless, but if upon the first or secvalue of the securities unaccounted for, and ond note we think the charges should have no evidence was introduced upon that point. been given. In the absence of any informa[10] The fifth paragraph of the main

tion upon this point, the presumption must charge authorized the jury to find for plain- be in support of the judgment. tiff, less the reasonable value of any such

Appellant requested special charge No. 6, collaterals not accounted for. There being no evidence to support the issue, it should all evidence on the question of whether the

to the effect that the jury should disregard not have been submitted.

[11, 12] Complaint is made in the twelfth bank had failed to collect and apply the and thirteenth assignments of paragraph 3 proceeds of certain collateral notes, because

the evidence was too general, and did not of the court's charge, as follows:

"If you find and believe from a preponderance show with sufficient certainty any amount of the evidence that the note dated April 1, 1913, which the bank had failed to collect or apwas executed by the defendants R. R. Wheatley ply, and because the evidence further failed and Frank Morris, Jr., on the condition and to show what notes could have been collected agreement that the same should not be delivered

This or become effective until H. C. Lankford Furni-| by diligence and were not so collected. ture Company and H. C. Lankford should sign charge was clearly upon the weight of the the same as principals, and that the same was to evidence and should not have been given. be held until such condition was complied with,

[15] Appellant also requested the court to then in such event the said defendants would not be liable upon said note, and you will, if you so instruct the jury not to consider the capital find and believe, return your verdict in their stock of the Furniture Company, which had favor upon this issue.”

been put up as collateral, in making their There is nothing in this charge which in- verdict, because it had been admitted on the dicates that the court thought Wheatley and trial that $1,500 worth of it had been sold

Tex.)

BOOTH V. CITY OF DALLAS

301

vember 1, 1912, with full knowledge on the empt. The test of the validity of laws dipart of the makers that the stock had been rected against a class is that the same means sold and the proceeds not applied, but that and methods be applied impartially to all the

members of the class, so that it shall operate other collaterals were substituted for the equally and uniformly upon all. same and accepted by the defendant in lieu [Ed. Note.-For other cases, see Constitutionthereof. There seems to be some dispute in al Law, Cent. Dig. $8 649-677; Dec. Dig. Om the record as to whether or not other collat- | 208.] erals had been substituted for the stock, in 4. LICENSES 7—MOTOR Bus-DISCRIMINA

TION. which event the charge would have been

An ordinance imposing an annual fee of upon the weight of the evidence. Of course, $75 for the privilege of operating each of about if there was no dispute upon the question, 500 motor busses over its streets, not sufficient the charge should have been given.

to pay the expenses of inspection, regulation,

etc., subjecting the drivers to a rigorous physi[16] Under the last assignment it is insist- cal 'and mechanical examination, regulating the ed that the verdict is contrary to the law number of passengers, requiring them to select and evidence, in that it was shown that a fixed route and operate thereon at least six Wheatley was bound by the note executed parison with an ordinance imposing an annual

hours a day, was not discriminatory, in comDecember 1, 1911, and was therefore without license fee of $10 on each of about 100 motor regard to any agreements thereafter made vehicles, known as "rent cars," allowed to stand with reference to the renewal notes, liable upon the streets only at certain places and

certain hours, not operated over fixed routes, upon the debt as originally created and that and charging a greater fare, regulated by the after allowing the credits, to which he may city, since they were engaged in different classhave been entitled, from the amounts collectes of street traffic. ed on collateral notes, judgment should have Cent. Dig. $$ 7-15, 19; Dec. Dig. Om7.]

[Ed. Note. For other cases, see Licenses, been rendered against him in any event for Cent. Dig. $$ 7–15, 19; Dec. Dig. Cm7.] the balance. If either of the renewals con- 5. CONSTITUTIONAL LAW E88 – PERSONAL

RIGHTS-LIBERTY-BUSINESS OR VOCATION. stituted a novation, then the note for which An ordinance for the regulation of motor the renewal was substituted was no longer busses, providing that a bus should be operated a binding obligation, and this is a question along the termini designated by the operator for which should have been submitted to the leration to be in accordance with the terms of

at least six consecutive hours a day, such opjury. Rushing v. Bank, 162 S. W. 460; the ordinance, and making it unlawful to opHeath v. First National Bank, 19 Tex. Civ. erate any motor bus on any other street or App. 63, 46 S. W. 123.

route than that designated in its license cer

tificate, was not in derogation of the citizen's For the errors pointed out, the judgment right to engage in any lawful pursuit of busiis reversed, and the cause remanded.

ness.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. $8 164, 165; Dec. Dig. Om

88.] BOOTH et al. v. CITY OF DALLAS et al. 6. MUNICIPAL CORPORATIONS O 591-POLICE (No. 7493.)

POWERS – DELEGATION - MINISTERIAL DU

TIES. (Court of Civil Appeals of Texas. Dallas.

A provision of an ordinance for licensing
July 3, 1915. Rehearing Denied
Oct. 16, 1915.)

and regulating motor busses, that the operator

of each bus should submit it to the city auto1. LICENSES 512-POWER OF CITY-CHAR- mobile inspector once every week, that if the TER-MOTOR BUS.

inspector found it safe he should issue a cerThe city of Dallas, under its charter pow- tificate permitting its operation for one week, er to license and regulate enumerated occupa- that if unsafe he should refuse such certificate, tions, and all other occupations which, in the and making its operation without the inspector's opinion of the board of commissioners, should certificate displayed thereon a penal offense, be the proper subject of police regulation, and was not objectionable as an attempt on the to regulate the use of automobiles or any motor part of the city to delegate the police power vehicles and the use of its streets, could fix an intrusted to it by the state. annual license tax of $75 for the privilege of [Ed. Note. For other cases, see Municipal operating a motor bus over its streets.

Corporations, Cent. Dig. & 1310; Dec. Dig. Om [Ed. Note.--For other cases, see Licenses, 591.] Dec. Dig. Om512.]

7. LICENSES 29-REGULATION OF MOTOR 2. LICENSES 1-MOTOR BUS-REASONABLE BUSSES-CHARGE FOR LICENSE. LICENSE OR TAX.

A city, having the right to charge a license An annual license fee of $75, fixed by ordi- fee reasonably commensurate with the cost of pance for the privilege of operating a motor regulating motor busses, had the further right bus in the streets of a city, where the cost of to make a charge of $1 for any additional exinspection and regulation would be in excess of penses resulting from the loss of the original the amount realized from the fees, was a rea- certificate, or a change of route or of seating sonable fee based on the cost of regulation, capacity. and not objectionable as a tax.

[Ed. Note.-For other cases, see Licenses, [Ed. Note.-For other cases, see Licenses, Cent. Dig. 8 63; Dec. Dig. Om 29.] Cent. Dig. § 1; Dec. Dig. Oml.] 3. CONSTITUTIONAL LAW 208-EQUAL PRO

Appeal from District Court, Dallas CounTECTION OF LAWS-DISCRIMINATION.

ty; W. F. Whitehurst, Judge. Class legislation, affecting a particular Action for injunction by C. C. Booth and class, is not unenforceable for that reason others against the City of Dallas and others. alone, since the Legislature has the right to classify persons or subjects for taxation or reg- From the dissolution of a temporary injunculation, which right includes the right to ex- I tion, plaintiffs appeal. Affirmed.

limits, '*

McCutcheon & Church and L. R. Callaway,, upon between the operator and those seekall of Dallas, for appellants. C. F. O‘Don- ing such service. The operators of these nell and G. C. Adams, both of Dallas, for ap- vehicles averaged a gross income of $5.70 pellees.

per day, with an average expense of $3 per

day, leaving approximately a net income of RASBURY, J. This is an appeal from the $2.70 per day. Included in such earnings action of the judge of the Sixty-Eighth dis-was whatever amount was secured from the trict court in dissolving a prior temporary special journeys above referred to, and for injunction. The action of the court as dis- which special journeys the operators, as a closed by the record was based upon substan- rule, received greater compensation than tially the following matters:

they did for running over the fixed route. Prior to the commencement of this suit Those operators who testified at the trial appellee the city of Dallas in the manner gave it as their opinion, based upon their provided by its charter enacted an ordinance experience in the business, that a license fee defining a motor bus, imposing a license for of $10 was sufficient, and that the number the privilege of operating same, regulating of vehicles engaged in the business could its use, declaring the unrestricted use there not successfully operate without being perof a nuisance, penalizing same, and declar-mitted to divert from their fised route and ing an emergency. A motor bus by the or- make special journeys here or there, as de dinance is declared to be:

manded by the public. “Any automobile, automobile truck or track- The evidence adduced by appellees tended less motor vehicle engaged in the business of to show that the operators of the vehicles decarrying passengers for hire within the city

* * held out or announced by sign, fined by the ordinance have greatly congestvoice, writing, device or advertisement to op-ed the city's streets with traffic in the downerate or run, or which is intended to be op- town sections. Since the operation of such erated or run, over any particular street or route or to any particular or designated point vehicles there have been numerous accidents or between particular points or to or within in which such vehicles were concerned, and as any designated territory, district or zone."

a consequence of which persons have been inThe ordinance also contains many other jured and property damaged and destroyed. provisions, but only those, together with Many of the vehicles are old and worn. The relevant collateral provisions, deemed nec-operators run irregularly over their selected essary to a discussion of the issues presented routes, and do not go to the limit thereof, on appeal will be detailed, and those so but return as soon as they secure enough necessary will be related while discussing the passengers to fill the car, taking them on at particular issue to which they relate. After any point. Many of the vehicles are operthe several successive steps necessary for the ated at a rapid and dangerous speed. Many legal enactment of the ordinance had been of them transport passengers in double the observed, and after same had been published number of their rated capacity, and after in the official organ of the appellee city one filling the body of the car they permit them of the three required times, appellants, to stand upon the running board. It was Booth, Cochran, Birthright, and Smith, for also shown that the cost of enforcing the themselves and approximately 500 others regulatory provisions of the ordinance, insimilarly situated, filed this suit against ap- cluding supervision, inspection, and police pellees, the city of Dallas and its commis- surveillance, would be in excess of the sioners, for the purpose of having said ordi- amount which could be realized from the nance declared void and unenforceable, and license fee and other charges provided for sought pendente lite a temporary injunction in the ordinance. restraining appellees from in any manner It was further shown that there are in enforcing same. Upon ex parte hearing tem- operation in the city of Dallas 75 or 100 porary injunction was granted, and appellees motor vehicles designated by ordinance as cited to appear subsequently and show cause "rent cars." There are two ordinances that why the temporary injunction should not be regulate the right to operate these rent cars. continued in force pending trial. At the time such regulations, material to the issues preset there was a hearing, and the temporary sented on appeal, are that such cars are reinjunction was dissolved.

quired to pay a license fee of $10 per annum The evidence adduced by appellants on the and may stand upon the streets only at cerhearing tended to show that there was attain places at given hours. The evidence that time 400 or 500 vehicles as defined by further shows that such cars do not operate the ordinance being operated upon the over fixed routes, but stand at the places on streets of the city of Dallas, either by the the city streets fixed by ordinances or in owners or those who rented same, engaged garages from whence they are called by in transporting passengers for hire from those desiring their services. These vehipoint to point in the city for a fare of 5 cles charge a much greater fare for their cents per passenger. Those so engaged had a services than the motor bus, such charges fixed route or termini, but would divert being regulated by the city. therefrom and make special journeys to any [1] We will consider first the attack on

Tex.)

BOOTH V. CITY OF DALLAS

303

*

fixes an annual license fee of $75 for the [2] It is next urged that the license fee is privilege of operating a motor bus over the unreasonable and arbitrary, because in fact streets of the city. This charge is declared a tax, though denominated a license fee, in to be void for many reasons; the first in order to cloak and conceal its real purpose. natural order being the claim that the city's If the conclusions stated in the proposition charter did not authorize same. By article were supported by or fairly deducible from 2, section 3, subdivision 24, of its charter, the evidence, it would present a serious isthe city has authority, among other things, sue. There is, however, in the record no evito license and regulate, in addition to the dence that tends to support the contention. businesses and occupations therein enumerat- ! We have said at another place that appeled, “all other business or occupations what- lant's testimony tended to show that they ever, which in the opinion of the board of could not pay the tax and profitably operate commissioners shall be the proper subject the motor bus. Incidentally such fact might of police regulation.” By subdivision 33 of result from many causes, conceivably comthe same article and section authority is petition or a fare out of proportion to the conferred upon the city "to regulate the use cost of operation, but which would in no reof automobiles, motor cars, motorcycles, or spect lessen the expense of regulation, or any motor vehicles.

By subdivision 4 of section 7 of the same article have also said at another place that the evi

make regulation any the less necessary. We there is conferred upon the city, in addition dence of appellees tends to show that the to certain enumerated things, the further cost of supervision, inspection, and police right “to regulate the use" of its streets. surveillance would be in excess of the amount These provisions are specific grants by the

realized from the fee prescribed. No one state of its police power, intrusted to the city for its exercise and enforcement. From these seems to challenge the necessity of regulation grants it is clear that the city has complete details of the evidence from which such con

on any of the many authorized grounds. The dominion over the entire subject in controversy in this suit, since it has the right to is not challenged, reveals that it is based up

clusion is deduced, and the truth of which regulate every conceivable kind of motor vehicle, the right to control and regulate the on the increased number of officers necessary use of its streets by such vehicles, and the to be employed as a result of so large an adright to license and regulate all occupations. ditional number of public vehicles upon the So broad and comprehensive are the specific streets and the purchase of additional motor

This grants that the right of the city to fix a li- cycles to be used in that connection. cense fee against those operating the motor evidence shows that the sum charged is reabus is not dependent upon the quoted grants sonable, in view of the added expense, and

no testimony challenging same was offered as a whole, but, in our opinion, can be sustained by authority of any one thereof. The by appellees. The unchallenged testimony right to regulate the use of the city's streets, being as stated, it results that the license fee or the right to regulate the use of all ve is not in truth a tax, but purely a charge hicles upon the city's streets, is broad enough based upon the cost of regulation. Ex parte to authorize both the regulation of the motor Gregory, supra; Brown v. City of Galveston, bus and the imposition of a fee for the privi- 97 Tex. 1, 75 S. W. 488. lege of such use. We said as much in South

[3, 4] The next issue presented is the fawestern Tel. & Tel. Co. v. City of Dallas, 17+ miliar and necessarily oft-recurring claim S. W. 636. That the city would have the that the ordinance is discriminatory, in that right to fix the license fee under the express all persons subject to its provisions are not provision permitting it to license and regu- treated alike under like circumstances, and late every conceivable business or occupation hence denies to appellant that equal protecseems too clear for discussion. The charter tion of the law guaranteed alike by our state grants that much authority, the Constitution and national Constitutions. In the recent does not forbid it, and the operating of a case of Southwestern Tel. & Tel. Co. v. City motor bus is an occupation or business. Fur- of Dallas, supra, we stated that the general ther, the right to prescribe a license in such rule, gathered from the decisions of the apcases is not an open question in this juris- pellate courts of this state, those of the Sudiction, but has been repeatedly sustained in preme Court of the United States, the courts cases enacted under charter provisions no of the other states of the Union, and the broader than those contained in the grant text-writers, which were cited, is that “class to the city of Dallas. We therefore feel that legislation or laws that affect a particular a discussion of the reasons for the rule and class are not unenforceable for that reason its applicability in the instant case is unnec- alone,” since “the right of the Legislature to essary, since in the cases presently cited classify persons, corporations, or subjects those matters are fully discussed and many for taxation, regulation, or restriction in the other authorities cited. Ex parte Gregory, broadest sense is not an open question un20 Tex. App. 210, 54 Am. Rep. 516; Kissinger der either our state or national Constitution, v. Hay, 52 Tex. Civ. App. 295, 113 S. W. 1005; and the right to classify includes the right to Ex parte Denney, 59 Tex. Cr. R. 579, 129 S. exempt, as does the right to exempt include controlling test of the validity of all laws / motor bus has no fixed stand, but is condirected against a particular class may be tinually in motion upon a fixed route upon said to be that the same means and methods the streets of the city, soliciting and halting shall be impartially applied to all the con- to accept business at any place where the stituents of the particular class, so that the passenger is found, and upon some of the law shall operate equally and uniformly up-fixed routes there are as many as 100 buses. on all persons in the class sought to be regu- As related to the same question, rent cars do lated. If appellants are constituents of the not transact their traffic in such manner, but class defined by the ordinance attacked, and are located either at garages or stands upon others in the same class are exempt from its certain streets between hours fixed by ordiprovisions, they have just cause for com- nance, whence they are called by the public plaint.

when their services are needed. Thus the Appellants maintain that such condition is mere statement of the manner and method of shown in the treatment accorded them and the traffic in which the respective vehicles that accorded those engaged in the rent car are engaged demonstrates that each is purbusiness, since there is a difference in the suing a different class of business, so radiregulatory measures as applied to rent cars cally dissimilar in fact as to leave no room and those applied to the motor bus. The for fair dispute or disagreement. Appelfacts do disclose that the regulations ap- lants being then in a class entirely dissimilar plicable to rent cars, which are covered by from that of those who operate rent cars, another and prior ordinance, the essential it is immaterial that the regulations are disprovisions of which have been herein noted, similar. Dissimilar regulations of dissimilar and those applicable to the motor bus, are occupations cannot, of course, serve as a dissimilar in many and important respects. basis or support in law for holding the one Some of the salient differences are that the or the other discriminatory, since dissimilar rent car is required to pay a license fee of methods of regulating similar classes are, un$10, while the motor bus pays $75. The rent der the rule cited, the test of discrimination. car operator is not subjected to the same [5] The constitutionality of section 9 is rigorous physical and mechanical examina- also attacked. This section provides that tion touching his qualifications to operate the motor bus shall be operated along the his vehicle that the motor bus operator is. termini designated by the operator, save in The number of passengers that may be car- certain excepted cases not material here, and ried by the motor bus is regulated, but not for any portion or all of the day, at option so with the rent car. The motor bus is re- of operator (but must by section 2 be operatquired to select a fixed route or termini anded for at least six consecutive hours), and traverse the same for not less than six hours concludes with the provision: per day, while the rent car is permitted to “But such operation shall be at all times in go from its garage or stand to any point in accordance with the terms of this ordinance, the city over any route chosen. These radi- and it shall be unlawful to operate such motor cal and important differences in the regula- any street other than along the route designated tory provisions between the motor bus and in the license certificate." the rent car are noted, not because in our The concluding provision just quoted is opinion they establish discrimination, but vigorously attacked as being in derogation for the purpose of emphasizing the fact that of appellant's common right to pursue any the regulatory provisions of any ordinance other lawful occupation than that of operatare without significance whatever in deter-ing a motor bus. We do not construe the mining whether all the constituents of the quoted portion of section 9 as does able defined class are legislated against equally counsel for appellants. The ordinance of and uniformly; for if rent cars and the which section 9 is a part does not, in our motor bus do not engage in like street traffic opinion, expressly or impliedly undertake to they are not as matter of fact in the same interfere with the free and undeniable right class, and if not in the same class a differ- of the citizen to engage in any other lawful ence in regulations as applied to distinct pursuit or business for which he may qualiclasses is immaterial. Thus the true inquiryfy, but undertakes to regulate solely those is not, is there a difference in the manner who may wish to engage in the operation of of regulating rent cars and the motor bus, but a motor bus as therein defined. The lanis the rent car and the motor bus, as defined guage contained in section 9 should and will by the respective ordinances, engaged in be construed in the light of the purpose similar or dissimilar street traffic? This is, sought by the ordinance. So regarded, it is of course, a question of fact to be determin- clear to us that the provision that it “shall ed from the evidence contained in the rec-be unlawful to operate such motor bus as a ord.

public conveyance at any place or on any The record of the evidence beyond contro- street other than along the route designatversy discloses great dissimilarity in the ed,” means necessarily no more than that business pursued by the two classes of ve- the citizen who desires to engage in the hicles. As affecting street traffic and con- business defined by the ordinance shall, gestion thereof there are in operation 500 while engaged in that business, be confined

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