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BOOTH V. CITY OF 'DALLAS

305

lected by him at the time he applies for his and applied so as to require the city comlicense. Any other construction is not war-missioners, in the exercise of the city's police ranted by the general purpose of the ordi- powers, to personally engage "in every step nance as reflected by its various special pro- necessary for the exercise of the function"; visions. We do not agree with counsel that but they may "fully discharge their official the effect of the quoted provision is to deny duty and exhaust the municipal discretion by any appellant the right to engage in another enacting by-laws or ordinances to be exebusiness when he has complied with the pro- cuted by the proper board or officer." 28 Cyc. visions of the one in controversy. It does 694. Another concomitant of the rule inenact, of course

, that certain regulations voked by appellants is that the municipality, must be observed in order to legally engage after exercising its discretion as to the enin the business regulated by the ordinance. actment of laws, is not forbidden from deleFrom that circumstance, however, it surely gating its “ministerial or administrative funccannot be said that any one is prohibited tions to subordinate officials.” 28 Cyc. 276. . from engaging in any other lawful pursuit. Thus it appears that on either limitation If any appellant desires to engage in any of the general rule section 15 may be susother lawful occupation, his right to do so tained. Having the charter authority, as may not be denied, whenever he has com- we have determined at another place in this plied with any regulations that may be im- opinion, to regulate every character of motor posed upon such other business or occupa- vehicle engaging in street traffic upon its tion.

streets, the city had the right, under the [6] It is also urged that section 15 of the first limitation of the rule noted, to enact ordinance is void. This section requires the an ordinance voicing or exercising its authoroperator of each motor bus to submit his ity on the particular and precise subject, vehicle to the city automobile inspector once and to confer upon the inspector the authorevery week for inspection. If upon examina- ity to enforce the provisions thereof. This tion the inspector finds the vehicle safe for was done, and nothing left to the discretion use as a motor bus, he shall issue the opera of the inspector, since he is required to intor a certificate permitting its operation for spect every motor vehicle and its mechanism, one week. If the inspector finds the vehicle and determine if it is one that can be safely unsafe for use as a motor bus, he shall re- operated upon the city's streets. fuse to issue certificate. Operation of the We may, however, discard the broad rule, motor bus without the inspector's certificate which holds that the municipality may by displayed conspicuously thereon is made a exact and precise ordinance confer on anpenal offense. This section is attacked in other the enforcement of its discretion as effect on the ground that it is an attempt declared by duly enacted ordinance, and upon the part of the municipality to delegate yet find ample authority for the act comto another the police power intrusted to it plained of in the second limitation of the by the state, which it is argued it may not general rule noted. That is that section 15, do, since the trust is official and personal, taken in connection with the ordinance creatand may be exercised only by those to ing the office of city automobile inspector whom it is committed by the state.

and defining his duties and authority, eviIn connection with section 15, just refer- dences nothing more nor less than a transfer red to, and as a matter to be considered in by the city to said officer of its ministerial connection therewith, the city of Dallas, and administrative functions. . The discresimultaneously with the passage of the ordi- tion of the city in reference to the matters nance regulating the motor bus, enacted an- covered by either ordinance is in the last other ordinance creating the office of city analysis whether it will require the operators automobile inspector. Omitting formal and of the motor bus to submit it to inspection, nonessential portions, the last-mentioned or- a requirement obviously intended for the dinance makes it the duty of and confers protection of the life and property of the upon the inspector the authority to inspect citizen. By the enactment of section 15 and and examine every character of motor ve- the ordinance creating the office of inspector, hicle operated for hire in the city of Dallas it clearly and fully exercised that discretion, and keep a record thereof, to require them and directed that thereafter each motor to secure license or inspection certificates bus should be examined and inspected in required by other ordinances, to examine all of its mechanism and parts, in order all applicants for license and enforce ordi- to determine whether it could be safely opernances regulating the number of passengers ated upon the city's streets. The further proto be carried, etc.

vision that such examination shall be made Recurring, then, to the proposition assert- by the inspector confers upon him none of ed by appellants, it is readily conceded that the discretion conferred on the city, since it states a correct and long-settled principle the acts of examining the car and the issuof law which it is unnecessary to sustain ance of the certificate are but ministerial or by the citation of authority. Accompanying administrative, as distinguished from legisthe rule stated, however, at all times, is the lative and discretionary, authority. Bouvier further rule, equally well defined and estab- defines a ministerial act "to be one which lished, that the former will not be construed a person performs in a given state of facts,

in a prescribed manner, in obedience to the mandate of legal authority, without regard CONSUMERS' LIGNITE CO. v. HOUSTON

' to or the exercise of his own judgment upon

& T. C. R. CO. (No. 7339.) the propriety of the acts being so done,” and (Court of Civil Appeals of Texas. Dallas. cites in support of the defined meaning Rains July 3, 1915. Rehearing Denied V. Simpson, 50 Tex. 501, 32 Am. Rep. 609,

Oct. 16, 1915.) and which case in turn cites Commissioner 1. CARRIERS 20—CABRIAGE OF GOODS-DEv. Smith, 5 Tex. 471, and Arberry v. Beavers, LAY IN SHIPMENT_STATUTES. 6 Tex. 457, 55 Am. Dec. 791. See, also,

Rev. St. 1911, art. 6670, subd. 1, declares Hitchcock v. Galveston, 96 U. S. 341, 24 L. subject any traffic to unreasonable delay, while

that it shall be an unjust discrimination to Ed. 659.

subdivision 2 declares that every railroad which Every element of the ministerial act is shall fail or refuse to receive and transport found in section 15 and the other ordinance, destined to a point over a connecting line, shall

without delay cars of any connecting line, or unless it can be said that the method of be guilty of unjust discrimination. Held, that examining the motor vehicles is not pre- subdivision 2 and not subdivision 1, governs an cisely prescribed. The city automobile in action for unjust discrimination for delay in the spector is required to be one skilled in the transportation of a car destined to a connectmechanism of automobiles, and it is the

[Ed._Note.-For other cases, see Carriers, nearly unanimous rule that in ministerial Cent. Dig. $$ 33–49, 133, 927; Dec. Dig. Om matters much may be left to the judgment 20.] and discretion of public officials in reference 2. CARRIERS w 13—UNJUST DISCRIMINATION to matters resting peculiarly upon profession -RULES OF RAILROAD COMMISSION. al or expert knowledge or skill. Further, declaring that every railroad company, which

Under Rev. St. 1911, art. 6670, subd. 2, it is common knowledge of all that the mech- shall fail or refuse, under such regulations as anism of automobiles, while not exceeding- may be prescribed by the Railroad Commission, ly intricate, is nevertheless of that character to transport freight destined for a connecting that requires the judgment at least of a carrier, shall be guilty of unjust discrimina

tion, it is contemplated that the Commission skilled mechanic, and for whose guidance shalí establish rules; hence, in an action for a set or fixed rule would be out of the ques- unjust discrimination, such rules are admissition. Should the inspector, as appellants

ble. argue might be the case, refuse arbitrarily Cent. Dig. ss 21-24; Dec. Dig. 13.)

[Ed. Note.-For other cases, see Carriers, in the exercise of his authority to issue the certificate, notwithstanding the applicant

3. CARRIERS 13-CARRIAGE OF GOODS-DE

LAY-RULES. was entitled thereto, this will not affect the Rule 2 of the Railroad Commission devalidity of the regulation, since the pre-clares that railroad companies shall promptly sumption is that the officer will proceed receive and issue bills of lading for car load impartially in the exercise of the discretion than an average of 30 miles per day of 24

freight and transport it at a rate of not less conferred, and until it is shown to the con- hours, inclusive of Sundays and legal holidays. trary no cause of action exists. Kissinger The 2d day of March, Texas Independence Day, v. Hay, 52 Tex. Civ. App. 295, 113 S. W. 1005. is declared a legal holiday by statute (Rev. st!

1911, art. 4606). It fell on Sunday. Held that, [7] It is next urged that sections 5, 12, and as a custom or usage repugnant to the express 14 are ultra vires. These sections, in the provisions of a statutory regulation is unavailorder in which they are enumerated, provide ing, the fact that it was customary to observe that, in the event an operator desires to change holiday, will not, under the rules of the Rail

the following Monday, when Sunday was a legal his route after it has been selected, he will road Commission, excuse the carrier for delay in be required to pay $1 for the new certificate transporting goods on the Monday following made necessary by the change, or, if he loses Sunday, March 2d. his original certificate, he is required to pay Cent. Dig. $$ 21-24; Dec. Dig. Om 13.]

[Ed. Note.-For other cases, see Carriers, $1 for a new certificate, or, if he desires to operate a car of greater seating capacity 4. CARRIERS Cw13 – CARRIAGE OF GOODS —

RAILROAD COMMISSION-RULINGS OF. than he is licensed to operate, he is required Where Sunday, March 2d, was a legal holito pay $1 for a new certificate to that effect. day, a reply by the chairman of the Railroad The 'evidence of appellees tends to show that Commission, to an inquiry by a railroad comthe cost of securing and issuing the license would be recognized as free time, stating that

pany as to whether the succeeding Monday certificates and number plates enumerated the tariff merely said Sundays and legal holiwill reasonably be the charges fixed. On days, but that as, when holidays fell on Sunday, that issue appellants made no proof. The

it was generally the custom to consider Monday

as a holiday, the Commission would recognize city having the right to charge a license Monday as free time, fails to show that the fee reasonably commensurate with the cost Railroad Commission as such had promulgated of regulation, it would have the further right a rule recognizing Monday as free time. to make a charge for any additional expense Cent. Dig. $21-24; Dec. Dig. Om 13.]

[Ed. Note.-For other cases, see Carriers, resulting from loss of original certificate, etc., or change of route when sustained by Error from District Court, Dallas County; the evidence, as it is on the issue under Kenneth Foree, Judge. discussion.

Action by the Consumers' Lignite Company Finding no reversible error in the record, I against the Houston & Texas Central Railthe judgment of the court below is affirmed. | road Company. There was a judgment for

Tex.)

CONSUMERS' LIGNITE CO. V. HOUSTON & T. C. R. CO.

307

defendant, and plaintiff brings error.

Rei

[1, 2] There is evidence to the effect that versed and remanded.

the plaintiff, which was the consignee, in Etheridge, McCormick & Bromberg and addition to its rights as such consignee, had Chas. T. McCormick, all of Dallas, for plain-by assignment all the rights of the consignor, tiff in error.

Baker, Botts, Parker & Gar- and that the shipment in question was delivwood, of Houston, and Smith, Robertson & ered and received as alleged in plaintiff's Robertson, of Dallas, for defendant in error. petition; that the distance from Ferris to

Dallas is 19.4 miles; that the shipment was TALBOT, J. The plaintiff in error, here not delivered by the defendant to its coninafter referred to as plaintiff, sued the de- necting carrier at Dallas until about 4 fendant in error, hereinafter referred to as o'clock in the afternoon of March 4, 1913; defendant, to recover damages and a penalty that March 2, 1913, was Sunday, and was for delay in the transportation of a ship- also a legal holiday, being Texas Independment of freight over the defendant's line ofence Day; that the banks and post office in railroad. The petition alleges, in substance, Dallas observed March 3, 1913, as a holiday; that the defendant, on the 26th day of Feb- that the defendant, in the matter of demurruary, 1913, accepted at Ferris, Tex., for rage, has a custom, rule, or order with refershipment, a car load of bricks, consigned to ence to holidays; that this custom or rule, the plaintiff at Hoyt, Tex., and that under for which free time can be allowed in demurthe contract of shipment the bricks were to rage record, is that, with the exception of be delivered by the defendant to its connect- Decoration Day, all holidays falling on Suning carrier at Dallas, Tex., a distance of day are observed on Monday. When Decora19.4 miles, from which latter point the car tion Day falls on Sunday, the preceding load was to be carried by defendant's con- Saturday is observed. The Railroad Comnecting carrier to Hoyt; that defendant mission rule pleaded by the defendant was delayed delivery to its connecting carrier introduced in evidence, and so much of it until March 4, 1913, and this delay caused as is material here is as follows: damage to plaintiff, and constituted an un- “When car load freight of any character just discrimination, as defined by article proper for transportation is legally tendered to 6670 of the Revised Statutes of 1911, and a railroad company at its customary place of

receiving shipments, and correct shipping inentitled the plaintiff to the recovery of the structions given, such railroad company shall penalty provided for in article 6671 of said promptly receive the same and issue bills of statutes. The petition further alleged :

lading therefor; the same must be carried for

ward at rate not less than an average “That there existed in full effect rules and thirty (30) miles per day of twenty-four hours, regulations of the Railroad Commission of Tex exclusive of Sundays and legal holidays, comas, regulating, covering, governing, and requir-puted from 7 o'clock a. m. of the second day ing the interchange of freight from one con- following the receipt of shipment. For failure necting carrier to another connecting carrier to so receive and transport such shipments the at all points of junction in the state of Texas railroad company at fault shall forfeit and pay of all lines of railway being operated therein." to the owner or party injured the sum of fifty

The defendant answered, admitting that150) cents per car for each day or fraction the car was received and delivered by it on thereof during which the terms of this rule are

not complied with: Provided, however, that the dates set forth in plaintiff's petition, twenty-four hours additional time shall be albut set up by way of avoidance: (1) A cer- lowed at each junction or division terminal tain rule of the Railroad Commission of where it is necessary to rehanille or transfer Texas, known as rule 2, entitled "Reception additional when it is necessary to transfer conand Transportation of Car Load Freight.” additional when it is necessary to transfer conand alleged that it had carried the car with

The court's action in admitting in evidence the expedition required by that rule; and the foregoing rule of the Railroad Commis(2) that, if any delay had occurred in the sion is the basis of the plaintiff's first asdelivery of the car, it was due to the fact that the transfer track at Dallas, used in is that this rule had no application to the

signment of error. The proposition advanced the interchange of freight between it and its issue of whether or not the delay pleaded connecting carrier, was unduly congested, and proved constituted unjust discrimination such congestion being due to the insufficient

as defined by the statute. capacity of the freight yards at Dallas of

Article 6670 of the statute provides that if its connecting carrier, and the delay of its connecting carrier in the interchange of such any railroad, directly or indirectly, or by any freight. The defendant further pleaded that receive from any person or corporation a

special rate, rebate, etc., shall charge or March 2, 1913, was a Sunday, and that

greater or less compensation for any service March 2, 1913, was also a legal holiday, being rendered by it than it charges or receives Texas Independence Day; that there was a from any other person or corporation for general custom that in such a case as this. doing like and contemporaneous service, such when a legal holiday fell on a Sunday, the railroad shall be deemed guilty of unjust next day, Monday, would be and was regard-discrimination; and subdivisions 1 and 2 ed as a holiday. A jury trial, February 14, of said article read: 1914, resulted in a verdict and judgment for

(1) "It shall also be an unjust discrimination the defendant, and the plaintiff in due time for any such railroad to make or give any unany particular person, company, firm, corpo- | Department at Dallas, Tex., to observe the ration or locality, or to subject any particular following Monday as a holiday when a legal description of traffic to any undue or unreason holiday falls on the Sunday preceding. The able prejudice, delay or disadvantage in any respect whatsoever.'

propositions under this assignment are, (2) "Every railroad company which shall fail first, that a statute cannot be varied by

, prescribed by the Commission, to receive and proof of local custom or usage; and, second, transport without delay or discrimination the that the custom of the post office as to the passengers, tonnage and cars, loaded or empty, observance of the day in question as a holiof any connecting line of railroad, and every day has no tendency to show a custom upon railroad which shall, under such regulations as the part of railways in the city of Dallas as may be prescribed by the Commission, fail or refuse to transport and deliver without delay or to the observance of such day as a holiday. discrimination any passengers, tonnage or cars, The 2d day of March, among a number of loaded or empty, destined to any point on or others, is declared by statute of this state over the line of any connecting line of railroad, shall be deemed guilty of unjust discriminato be a holidaytion."

"on which all the public offices of the state may

be closed and shall be treated and considered We agree with the view, expressed by as Sunday or the Christian Sabbath for all purcounsel for the defendant, to the effect that, poses regarding the presenting for payment or if any penalty can be recovered under the acceptance and of protesting for and giving nopetition of plaintiff on account of the alleged checks and promissory notes placed by the law

tice of the dishonor of bills of exchange, bank delay in the transportation of the shipment upon the footing of bills of exchange. Rev. in question, it is recoverable under subdivi-St1911, art. 4606. sion 2 of article 6670 of the statute. As Rule 2 of the Railroad Commission, reargued, it seems clear that subdivision 1 of ferred to in discussing the defendant's first said statute is not applicable, because it is assignment of error, prescribes that railroad dealing with the general subject of prefer- companiesence or advantage in the ordinary handling "shall promptly receive and issue bills of lading by railroads of shipments, while subdivision for car load freight and transport the same at a 2 specifically covers the cause of action set rate of not less than an average of thirty (30)

miles per day of twenty-four hours, exclusive of out and relied on herein, namely, the case of Sundays and legal holidays." a railroad company's duty to transport and

Neither the statute nor the rule makes deliver shipments destined on the line of a any provision for the observance of the folconnecting carrier, The case at bar, as

case at bar, as lowing Monday when the holiday falls on shown by our statement of its nature, in the Sunday, and the question is: Can the deformer part of this opinion, is one in which fendant excuse itself for not moving the it devolved upon the defendant to transport plaintiff's shipment on Monday, March 3, and deliver the shipment of bricks without 1913, and avoid the penalty provided by law delay or discrimination to its connecting car- for unjust discrimination or delay, by showrier at Dallas, and, if it has failed to do so, ing a custom in such case not to do so? It then a recovery for the penalty sought may is well established that a custom or usage be had; but the same must be had under repugnant to the express provisions of a subdivision 2 of the statute, to which we statute is void, and that, whenever there is have referred. Subdivision 2 of article 6670 a conflict between a custom or usage and a provides, as has been seen, that every rail- statutory regulation, the statutory regularoad which shall, under such regulations as tion must control. 12 Cyc. 1054. So, too, may be prescribed by the Railroad Com- if a statute has given a definite meaning to mission, fail or refuse to transport and de- any particular word, no evidence of custom liver without delay tonnage or cars destined will be admitted to attach any other meanto any point on or over the line of any con- ing. 12 Cyc. 1055. necting line of railroad, shall be deemed

Railway Co. v. McCown, 25 S. W. 435, was guilty of unjust discrimination. This pro- a suit to recover damages under our statute vision of the statute clearly contemplated, for failure of the railway company to deif it did not require, that the Railroad Com- liver a car load of corn upon tender by the mission of the state should prescribe rules owner of the amount of freight charges, as and regulations upon the subject to which shown by the bill of lading. Among the deit relates, and evidently the Commission, to fenses set up by the company was a custom meet this purpose and intent of the statute, of railroads in the United States to require promulgated the rule admitted in evidence the surrender of the bill of lading before the over the objections of the plaintiff, and of delivery of freight, and that the plaintiff the admission of which it complains in the had refused to do this or give an indemnity assignment of error under consideration. bond demanded in lieu of such surrender. We think, therefore, the rule was properly The court held that the failure of the deadmitted, and the assignment will be over- fendant to comply with article 4258a, Rev. ruled.

Civ. St., requiring railway companies to de[3] The second assignment of error is to liver freight on tender by the owner of the the effect that the court erred in admitting freight charges, as shown by the bill of ladthe testimony of the witness W. Bruce Luna | ing was not excused by the refusal of the Tex.)

CONSUMERS' LIGNITE CO. V. HOUSTON & T. C. R. CO.

309

give an indemnity bond in lieu thereof, and chairman of the Commission to the effect upon the question of custom said:

that if a holiday should fall on Sunday, and "It [the custom] cannot deprive one of a le- there was a custom generally to consider gal right without his consent and without com- Monday as a holiday, the Commission would pensation; it cannot make contracts for par

The telegram ties; it can in some cases construe the terms recognize Monday as such. used in a contract; but it is not a good custom does not, therefore, in our opinion, sustain if it is unreasonable, or contrary to law. The the contention of the defendant, and we think custom contended for cannot be enforced.”

the admission of the evidence of the custom Likewise we think it must be held that the sought to be established by the defendant, custom set up by the defendant in the case over the objection of the plaintiff, was error at bar to excuse itself from transporting or which requires reversal of the case. delivering the shipment in question to its clearly, rule 2, which was introduced in eviconnecting carrier at Dallas on Monday, dence, does not, expressly or by implication, March 3, 1913, cannot be enforced under the authorize the observance of Monday as a statute and regulations of the Railroad Com- holiday when a holiday falls on the Sunday mission as they existed on that day. The preceding, and the mere statement, made by observance of that day as a legal holiday the chairman of the Commission in the telewas not authorized, as heretofore indicated, gram referred to, would not warrant this by either the statute or a rule or regulation court in holding that such was the effect of prescribed by the Railroad Commission. In the rule.

the rule. Furthermore, we think it may be the absence of some provision of the statute gravely doubted that under the custom or rule of the Commission authorizing the shown by the evidence in this case the Railobservance of Monday as a legal holiday road Commission would "recognize as free when the holiday falls on the preceding Sun- time” Monday, March 3, 1913. The custom day, a carrier in this state cannot justify was not shown to be general. The extent of and excuse its failure to transport or deliv- the evidence is that the post office and the er a shipment received by it on that day, on banks in Dallas and the defendant observed the ground that a custom prevailed to rec- Monday as a legal holiday when a holiday ognize and observe that day as a legal holi- fell on Sunday. There is absolutely no eviday. The specific day named by the statute dence, so far as we have been able to discovas a holiday cannot be varied by evidence of a custom that some other day was ob er, showing that such was the custom of

any other railroad in or out of Texas, and served as such.

it may be doubted, from the character of the [4] But the defendant contends that the evidence introduced in this case, and of evidence introduced on the subject, that it

was the custom of the defendant to observe which the plaintiff complains, does not have Monday as a holiday when a holiday fell on the effect to vary a statute, or the defini- the preceding Sunday, in so far as the movetion thereof, by proof of a local custom or

ment and delivery of car load shipments usage; that it is nothing but the application were concerned. To prove that such was the of the or of the Commission in force with respect to the sub-custom of defendant, H. J. Fitzgerald was ject. The contention is based upon a tele introduced, and he testified that the defendject. The contention is based upon a tele- ant in the matter of demurraġe has a cusfendant, which was introduced in evidence, tom, rule or order with reference to holidays.

He further said: from the chairman of the Railroad Commis

"The rule in effect in March, 1913, as to free sion, in reply to one sent by them, stating time that the Houston & Texas Central Railthat March 2, 1913, fell on Sunday, that the road Company would allow its patrons, is as post office and banks in Dallas observed follows: March 3d as holiday, and asking if there “ 'Houston & Texas Central Railroad Company. was "any ruling of Railroad Commission “ 'Circular No. 913. All Agents: that in such a case March 3d should be ex

"'For your information and guidance I quote cluded in movement of car load freight un- free time can be allowed in demurrage record :

you below legal holidays in Texas for which der rule 2 as to transportation of car load • ‘March Second. Texas Independence Day. shipments?" The telegram in question reads May Thirtieth. Decoration Day.' as follows:

"With the exception of Decoration Day, all “Yours 9th. Commission's tariff simply says holidays falling on Sunday are observed on Sundays and legal holidays, when holidays fall Monday. When Decoration Day falls on Sunon Sunday the custom being generally to con- day, the preceding Saturday is observed. Those sider Monday as holiday, Commission would are the rules we have been following since recognize Monday as free time.

1909.” "[Signed] Allison Mayfield, Chairman.” All the evidence admitted on the question This telegram fails to show that the Rail- of custom should have been excluded, and road Commission had promulgated a rule or because of its improper admission, and hurtregulation to the effect that, when a holiday ful effect upon the rights of the plaintiff, falls on Sunday, railway companies were au- the judgment of the court below is reversed, thorized to observe the following Monday and the cause remanded. as such. It is but the statement of the Reversed and remanded.

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