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name whatever,” carrying persons for hire, and that all such “have designated stands afid run only on Special calls, and are not held out as running over any special route, and they charge a higher fare than jitneys”; that all these are required to pay only Said $2 license fee, and no bond is required of them; that all automobiles permitted to operate in the city, whether private cars, Service cars having designated stands, or jitneys, are subject to the same traffic Ordinances, except such special provisions as are ln Said jitney Ordinance relating to jitneys alone; that Mr. Bogle, on the date charged in the complaint against him, operated a five-passenger Ford automobile in the city as a jitney running on a route having definite termini of less than 35 blocks, which automobile operated by him would clearly be a jitney, as defined in section 1 of the attacked Ordinance. This Ordinance makes it an Offense to thus operate a jitney Without license, and it was for that only Mr. Bogle was arrested and held in custody by the chief of police. It is further agreed that there Was a Street car system Operating in the city as a carrier of passengers under a franchise; that it carries passengers and gives transferS anywhere on its lines for five cents fare. It is not required to take out license nor give bond. It is required and pays the City $1 per mile occupation tax, and the same amount to the county, and double that to the State. Its franchise and the city Ordinances require it to pave its tracks and One foot additional On each side thereof wherever the city paves, and to maintain the Same Space On all other Streets where its tracks are laid. It has spent alone for paving in the city over $300,000, and its annual paving is about $30,000. It pays the city $4,900 ad Valorem tax, and one-half that Sum to the State and County annually. Its gross receipts annual tax to the state is $1,955, and its federal income tax is $611 annually. Its total annual tax for the space of each passenger is $58.76. [1] The charter of the city of Austin was granted by the Legislature, approved February 3, 1909, and by a provision therein the courts are required to take judicial knowledge thereof. Special Laws of 1909, pp. 8–45. It provides that the mayor and four councilmen shall be known and designated as the city council, and have all legislative, executive, and judicial functions or powers granted. Among other provisions of the charter and power's given the City Council are these: Article XI, section 1: “The city council shall be vested with the power and charged with the duty of adopting all law and ordinances, not inconsistent with the Constitution and laws of the state of Texas, touching every object, matter and subject within the purview of the local self-government, conferred by this act upon the citizens of the city of Austin.” Article XIV, section 38:

* * * * To make and regulate stands for

Article XV, section 1: “The city council shall have power, subject to the restrictions herein contained, to make all rules, regulations and ordinances which may be necessary and proper for carrying into effect the powers specified herein.” Article XV, section 14: “* * * The council may enact any ordinance not in conflict with the penal laws of the state.” Article XIII, Section 1: “The city council shall have exclusive control over and regulation of all streets, alleys, sidewalks and highways and the public squares within the corporate limits of the city, and, shall have power: * * [Subdivision h.] To regulate the use of the same. * * *” Article XIV:

“The city council shall have power by ordinance: [Section 10.] To license and regulate hacks, carriage, omnibusses, wagons and drays, and to fix the rate to be charged for the carriage of persons and for the wagonage, cartage and drayage of property. * * * [Section 32.] To regulate the speed and handling of automobiles.” Under these powers and authority, We think unquestionably the city had the power and authority to enact and enforce any and all reasonable ordinances which it deemed necessary and proper to regulate the handling of automobiles and the use of the streets by persons owning or Operating the Same in the carriage of passengers for hire. A jitney is an automobile, both in fact and so agreed herein, and as specially defined by Section 1 of Said Ordinance; in fact, as We understand, appellant concedes that the city council had power and authority to pass all reasonable ordinances regulating the jitney and the Operation thereof on the streets of the city. [2] However, the first ground of his attack On Said jitney Ordinance is Substantially this: That Section 1 Of Said Ordinance, When considered in connection with other ordinances and the testimony, violates section 3, art. 1, Of Our State Constitution and the fourteenth amendment of the Constitution of the United States, in that it discriminates between the rights of the same class, and places a greater burden upon One than another of the same class, and that whether the amount Charged be a tax Or license fee. In the recent case of Ex parte Sullivan, 178 S. W. 537, we discussed an ordinance of the city of Ft. Worth, Tex., of which the ordinance attacked herein is substantially and practically the Same, and therein held, as we dO in this Case that the Said Ordinance ViOlates neither our state Constitution nor the Constitution of the United States in this particular. What we said in the Sullivan Case On that Subject specially applies to this case. We think there can be no question but that the jitney, as defined in the Ordinance herein and as Operated by Mr. Bogle, is a class within itself, Separate and distinct from both the street car system and other automobiles or vehicles Which have stands as described above. In addition to the Sullivan Case and authorities therein cited, we cite Ex parte nance all jitneys are treated exactly alike, and neither Within that class is treated in any way whatever different from another. [3] He next attacks sections 9, 10, and 11 Of Said jitney ordinance, requiring a bond, claiming that it is beyond the power of the city, and its charter confers no right, either express or implied, to create a cause of action in behalf of individuals strangers to the licensee or licensor or to provide a remedy for such, or to insure or indemnify the city for damage or loss, unless the same is of Such a nature as to render the city liable either by statutory or common law; and by the terms of the ordinance and conditions of the required bond it affirmatively appears that the damage or loss sought to be guarded against is not of this character. These sections of the ordinance, in effect, as a prerequisite for a license to operate a jitney, require that for each jitney the owner, etc., shall procure and file With the city an indemnity bond or policy of insurance in the sum of $5,000, conditioned that the licensee shall pay any judgment of court finally rendered against him, etc., to the extent of $2,500 on account of injuries to Or death of any person or injury to the property of another and to the extent of $5,000 for like injuries occurring in One accident to more than One person caused by the negligence of such licensee, etc., and further conditioned to hold the city harmless from any and all claims, etc., resulting to it from the granting of such license. This bond can be made by either a surety company authorized to do business in this state or by personal security. Neither these sections nor the ordinance as a whole, as We understand it, in any Way creates, or attempts to Create, in behalf of any perSon, any liability against the licensee or his bondsmen, but it merely provides as one of the reasonable regulations of the licensee that he shall provide by such bond or indemnity a means to satisfy the loss to such one as may be damaged by him finally rendered by a court. It in no Way prescribes any contingency under which the licensee should be liable to any person for any negligence whatever committed by him or other act by him. The city would have no right to create that kind of cause of action, and, as stated, it does not Attempt to do SO. It is agreed herein that the city of San Antonio, Tex., had an ordinance regulating jitneys, wherein it required as a prerequisite to a license that the jitney OWner Should execute a bond in the sum of $10,000, With the conditions thereof somewhat like the conditions of the bond Of the Ordinance herein attacked, and that also the city of Ft. Worth, Tex., had a like ordinance requiring a bond in the sum of $2,500, with somewhat of the same conditions; that in the city of San Antonio, under the ordinance of that city, 91 such bonds as there required had been given, and under the Ordinance of the city of Ft. Worth 89 bonds as there required had been given.

In the Sullivan Case, supra, we held that the bond required therein Was a proper regulation. We likewise hold in this case that the bond required herein is a reasonable regulation, not Void nor unconstitutional on any ground, and is a proper regulation, as ShoWn in this case is the city of Austin. In addition to the authorities cited on this point in the Sullivan Case, we now cite case Ex parte Bell, 24 Tex. App. 428, 6 S. W. 197; Greene V. San Antonio (Civ. App.) 178 S. W. 6; Ex parte Cardinal, Supra. In this connection, and others as well, it was further agreed herein: That prior to the passage of the jitney ordinance attacked there were about 60 jitneys running in the city. Some of them had inexperienced or reckless drivers, and few of them had any financial responsibility, except Some owned the Ford car operated. These jitneys traversed the most traveled streets of the city, and largely confined their traffic to the paved or best graded or graveled streets, and practically paralleled all the street railway lines, and in going their usual route all, or about all, Of them traversed certain mentioned Streets, Which are the principal streets of the city and in the most congested centers of Ordinary traffic, and tended to greatly congest the traffic of said streets. That during the 60 days prior to the passage of Said ordinance there Were a number of accidents due to the jitneys. That the city council, in view of the traffic conditions brought about by the advent of the jitney and of the accidents due to their presence and their menace to the general Safety of the public, deemed that there was an imperative and urgent necessity for the passage of Said jitney Ordinance. It is further agreed herein that the jitney traffic in the city is a business done, carried on, and operated solely upon the public streets and thoroughfares of the city, and is largely confined to the paved streets and best graded and graveled streets, and that the jitney is a new and hazardous kind of passenger traffic, and the danger to individual accident and injury is greater, and that the number of accidents in proportion to the number Of passengerS Carried and injuries has, in fact, been greater in this line of pasSenger traffic than in any other commonly uSed. It was further agreed that, by reason of the new and hazardous nature of the jitney service, very few surety or indemnity companies Would undertake Such Security until the class, character, and nature of the Service have been reduced to a System (that it was not meant thereby that thereafter either of Said bonds could or could not be given under said jitney ordinance), and that a perSonal bond could Ordinarily be given only by a Careful driver known to his Sureties to be temperate, cautious, and reliable; that the said bonds given in the cities of San Antonio and Ft. Worth were made by an indemnity company. It Was further agreed that application Was made in behalf of the Austin jitneys to certain named indemnity companies without success, and that a certain other company would write a policy on autos carrying passengers for hire, but would not write a policy under the ordinance attacked. [4,5] The next ground of attack is of section 7 of said ordinance, which prescribes a license fee of $50 per annum for each jitney With a seating capacity of five or leSS, including the driver, and of $75 for a seating capacity of not more than seven, but more than five, including the driver, and of $100 for a seating capacity of more than Seven persons, including the driver, claiming that these fees are not license fees, but an evaSion of the law, and, in fact, a tax for revenue for city purposes, and not as a police regulation. So far as the relator is concerned, he is in no position to attack said section of the Ordinance for the amount of the latter two fees, because it is conclusively shown that he comes Within the $50 class Only, and We do not pass upon those features of that section prescribing the $75 and $100 amount of license fees. On this point, in addition to the agreed facts above recited, is this further agreement: That the carrying out of Said jitney ordinance will require the printing of blanks and stationery for licenses, applications, bonds, and such other matters as are named in the Ordinance, and Will require more clerical labor, all at an expense to the city that cannot now be estimated, and that the policing of the ordinance will require two, or possibly three, extra policemen at a salary of $90 each per month, including a motorcycle man and cost of the motorcycle, all at an additional eXpense Of probably $2,500 a year, if the same number of jitneys were in operation, and that in fixing the amount Of Said license fees the Council did not expect the Sum realized therefrom to more than pay the expenses of policing and enforcing said ordinance, and did not expect to Or Contemplate the realizing Of any revenue to the city over and above the additional expense caused by the proper enforcement of Said Ordinance. We think that this demonStrates that the Said $50 license fee Was, in truth and in fact, a license fee only, and not a tax to provide an extra revenue, and that this Section of the Ordinance is unquestionably valid. Ex parte Sullivan, supra, and authorities there cited. [6,7] In the Inext attack. On the Ordinance he claims that, as a Whole, it is unreasonable, and clothes the city with arbitrary power to grant or refuse a license though the fees are paid, and all the requirements thereof complied With by an applicant for a license. This question was also discussed and passed upon in the Sullivan Case, Supra. We see no necessity of further discussing it here. The attacked ordinance herein is in no essential particular different from the Ft. Worth Ordinance passed upon in the Sullivan Case.

ordinance on that ground, anyway; for it is conclusively shown that he has in no way attempted to procure a license and been refused on any ground. However, we might say that, if even he was in a position to attack the ordinance on this ground, We see nothing in it but a reasonable and proper regulation, and we see nothing in it which would authorize or justify this court to hold the ordinance, or any provision of it, Void on that ground. [8] His next attack On the Ordinance is his claim that the difficulty of complying with its requirements practically amounts to a prohibition, and that the amount of the fees required to be complied with before the bond can be given and the terms and amount of the bond are requirements which cannot be complied with. The relator's contention on this point cannot be sustained. The Whole agreed facts indicate that, if he is a proper person to operate a jitney under Said ordinance, he may reasonably comply therewith, and that its provisions do not almount to a prohibition. The burden is on him to show what he claims, and not on the state or city to show otherwise. In the agreed facts as a Whole, We think it is shown that he can reaSonably comply therewith, and hence the ordinance is not void on this ground. His last contention is that, the arbitrary power preceding the issuance of license and the power reserved by the city to cancel it and throw him out of business at any time discourages the investment necessary to go into business, and tends to, and does, prevent competition and results in building up a monopoly in behalf of the Street car company. We think it unnecessary to discuss this general attack of the Ordinance. We see nothing in it that would sustain the relator's contention. On the contrary, We See from it Only the proper and reasonable regulation of the business and the proper requisites of persons Only Who should be authorized by the City to Operate jitneys On its streets. It may be that Some persons Would experience Some difficulty in complying with the ordinance, but no more SO than any other like hazardous and dangerous business. We have carefully investigated this ordinance and the relator’s attack of it and the questions raised by him, and reviewed the Sullivan Case, Supra, and the authorities therein cited, and have reached the conclusion that there is nothing in the Ordinance herein attacked that would in any way legally permit Or authorize this court to hold it in Valid. On the contrary, it is Our Opinion that the Said Ordinance, in the particular attacked wherein relator is in position to attack it, is valid and constitutional, under the agreed Statement of facts On file. It is therefore Ordered that the relator be remanded to the custody of the city marshal.

DAVIDSON, J. I cannot concur. I wrote fairly fully in the Sullivan Case my views of disagreement. I may write in this case BENITO v. STATE. (No. 3800.) (Court of Criminal Appeals of Texas. Nov. 3, 1915;) Appeal from Ellis County Court; W. M. Tidwell, Judge. Benito, a Mexican, was convicted of gaming, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State.

MEMORANDUM DECISIONS

HARPER, J. Appellant was convicted of gaming, and his punishment assessed at a fine of $10. Neither a statement of facts nor any bills of exception accompany the record. The information charges the offense of which appellant was convicted. No ground is stated in the motion for a new trial we can review in the £ of the testimony. The judgment is af

rmed.

CASE v. STATE. (No. 3597.) (Court of Criminal Appeals of Texas. June 16, 1915. Rehearing Denied Oct. 13, 1915.) Appeal from District Court, Rains County; William Pierson, Judge. Buck Case was convicted of rape, and he appeals. Affirmed. W. W. Berzett, of Emory, and Campbell & Mansell, of Alba, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. Appellant was convicted of rape, and assessed the lowest punishment. There is no bill of exceptions nor statement of facts. In the absence of these there is no question which can be reviewed. The judgment is affirmed.

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MIKE v. STATE. (No. 3796.) (Court of Criminal Appeals of Texas. Nov. 3, 1915.) Appeal from Ellis County Court; W. M. Tidwell, Judge. Mike, a Mexican, was convicted of gaming, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. The appellant in this case was fined $10 for gaming, the lowest penalty prescribed by law. There is neither a statement of facts nor a bill of exceptions in this case. No question is raised which can be reviewed in the absence of these. The judgment therefore is affirmed.

PELATA v. STATE. (No. 3798.) ... (Court of Criminal Appeals of Texas. Nov. 3, 1915.) Appeal from Ellis County Court; W. M. Tidwell, Judge. Pelata, a Mexican, was convicted of gaming, and he appeals. Affirmed. McDonald, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was convicted of gaming, and his punishment assessed at a fine of $10. Neither a statement of facts nor any bills of exception accompany the record. The information charges the offense of which appellant was convicted. No ground is stated in the motion for a new trial we can review in the absence of the testimony. The judgment is affirmed.

E.

RODREGUEZ v. STATE. (No. 3801.) (Court of Criminal Appeals of Texas. Nov. 3, 1915.) Appeal from Ellis County Court; W. M. Tid. well, Judge. Jose Rodreguez was convicted of gaming, and he appeals. Affirmed. . C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was convicted of gaming, and his punishment assessed at a fine of $10. No statement of facts or bill of exceptions accompany the record. The information charges the offense of which appellant was convicted. No ground is stated in the motion for a new trial we can review in the ab£" any testimony. The judgment is affirmed.

SEGUIN v. STATE. (No. 3694.) (Court of Criminal Appeals of Texas. Oct. 13, 1915.) Appeal from Bexar County Court; Nelson Lytle, Judge. Mariano Seguin was convicted of unlawfully carrying a pistol, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. From a conviction for unlawfully carrying a pistol, with the lowest penalty assessed, this appeal is prosecuted. There is no statement of facts or bill of exceptions, and nothing is raised in the record which we can review. The judgment is therefore affirmed.

SLOAN v. STATE. (No. 3678.) (Court of Criminal Appeals of Texas. Oct. 13, 1915.) Appeal from Johnson County Court; B. Jay Jackson, Judge. Henry Sloan was convicted of making a sale of intoxicating liquors in prohibition territory, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was convicted of making a sale of intoxicating liquors in prohibition territory. The record contains neither a statement of facts nor any bills of excep

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TREUBINE v. STATE. (No. 3799). (Court of Criminal Appeals of Texas. Nov. 3, 1913.) Appeal from Ellis County Court; W. M. Tidwell, Judge. Joe Treubine was convicted of gaming, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of gaming, and his punishment assessed at a fine of $10. Neither a statement of facts nor any bills of exception accompany the record. The information charges the offense of which appellant was convicted. No ground is stated in the motion for a new trial we can review in the ab£" the testimony. The judgment is afI'med.

WILLIS v. STATE. (No. 3702.) (Court of Criminal Appeals of Texas. Oct. 20, 1915.) Appeal from District Court, El Paso County; W. D. Howe, Special Judge. C. E. Willis was convicted of burglary, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. Appellant was convicted of burglary, and assessed the lowest punishment. There is no statement of facts, nor any bills of exceptions. Nothing is presented which can be reviewed by this court. The judgment is therefore affirmed.

CHICAGO, R. I. & P. R. CO. v. JONES. (Supreme Court of Arkansas. Sept. 21, 1914.) Appeal from Circuit Court, Prairie County, Southern District; Eugene Lankford, Judge.

PER CURIAM. Appeal dismissed on appellant's motion.

HURST V. STATE. (Supreme Court of Arkansas. Oct. 5, 1914.) Appeal from Circuit Court, Pulaski County, First Division; Robert J. Lea, Judge.

PER CURLAM. Appeal dismissed, on appellant's motion.

KIGER. v. STATE. (Supreme Court of Arkansas. Sept. 28, 1914.) Appeal from Circuit Court, Sebastian County, Greenwood District;

PER CURIAM. Appeal dismissed on appellee's motion for failure of appellant to comply with the condition prescribed by the statute in misdemeanor cases.

RALPH v. STATE. (Supreme Court of Arkansas, Sept. 28, 1914.) Appeal from Circuit Court, Sebastian County, Greenwood District; Daniel Hon, Judge.

PER CURIAM. Appeal dismissed on appellee's motion for failure of appellant to comply with the condition prescribed by the statute in misdemeanor cases.

ST. LOUIS SOUTHWESTERN RY, CO. V. HEEREN. (Supreme Court of Arkansas, Sept. 28, 1914.) Appeal from Circuit Court, Calhoun County; Charles W. Smith, Judge.

PER CURIAM. Settled, and appeal dismissed on appellant's motion.

ST. LOUIS SOUTHWESTERN RY. CO. v. TRUBY. (Supreme Court of Arkansas. Sept. 28, 1914.) Appeal from Circuit Court, Columbia County; Charles W. Smith, Judge.

PER CURIAM. ... Settled, and appeal dismissed on appellant's motion.

OGLESBY V. FT. SMITH DISTRICT OF SEBASTIAN COUNTY. (No. 38.)

(Supreme Court of Arkansas. Dec. 6, 1915.)

Dissenting opinion.
For majority opinion, see 179 S. W. 178.

McCULLOCH, C. J. (dissenting). Two of the justices who have voted to affirm this case declare the law to be that the county court has the power to employ counsel, in addition to the prosecuting attorney, to conduct litigation in which the county is interested. I agree unqualifiedly with that conclusion, and so does Mr. Justice WOOD. That makes four of the judges who are of the opinion that the county court possesses that power. The authorities cited in appellant's brief sustain that view. Those authorities relate generally to municipal corporations, but the principle is the same that where a county or municipality has authority to direct litigation in which it is interested it may employ special counsel, and the fact that an official attorney has been provided by law does not curtail that power. Our statute (Kirby’s Digest, § 1493) expressly provides that the county court shall defend cases appealed to the circuit or Supreme Court, and that all expenses incurred by reason of such defense shall be paid by the county. It is therefore necessarily implied that county courts shall provide the means for conducting litigation in which it is interested, and that includes the employment of attorneyS.

Two of the judges say that, while the county court has the power to employ counsel, it cannot exercise that power and enter into a contract of employment with another attorney without first obtaining the consent of the prosecuting attorney, or at least until after he has been consulted. If there is any authority at all for employing additional counsel to represent the county in its litigation, it is to be exercised by the county court. Certainly there is no authority conferred by statutes on the prosecuting attorney to exercise that power or to hinder its exercise by the county court. If the county court possesses the power at all, it may exercise it in disregard of the wishes of the prosecuting attorney and without consulting him. . Any other view of the matter necessarily places the

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