The City of Hillsboro, in Hill County, was duly incorporated by a special Act of the Legislature. Among other powers given by its charter, is the power "to control the streets, alleys, highways, sidewalks and public grounds and places in said city." Also "to regulate and control the use of said streets, alleys, etc:, by any person, animal or vehicle in whatever way and for whatever purpose." Also to establish, and erect markets and market houses and designate "and control, and regulate market places and privileges." Also "to license, tax, regulate, suppress and prevent hawkers, peddlers, pawnbrokers, and dealers in all kinds of junk and second-hand goods, wares and merchandise, itinerant vendors of clothing or wearing apparel, or any other business or occupation which in the opinion of the city council shall be the proper subject of police regulation."
Under this power and authority said city duly passed and put into effect an ordinance regulating traffic upon the streets and alleys of said city within the fire limits, and regulating peddling, vending and exhibiting thereon, and providing fines for violation thereof. Section 3 of *Page 174 said ordinance is: "It shall hereafter be unlawful for any person to use the streets or alleys embraced within the fire limits of the City of Hillsboro, for the purpose of vending or displaying goods, wares, merchandise or produce or other articles, or for the purpose of peddling goods, wares, merchandise, produce or other articles; provided, however, that this section shall not apply to any person who himself offers for sale any products raised or grown upon the property owned or rented by him or under his control."
Section 7 of said ordinance makes the violation thereof a misdemeanor punishable by fine not exceeding $25.
On December 12, 1912, proper complaint was filed against relator Bradshaw, a proper warrant issued for his arrest, and he was arrested by the city marshal and properly held thereunder. He thereupon sued out a writ of habeas corpus before the county judge of Hill County, claiming that he was illegally restrained of his liberty because the City of Hillsboro had no authority to pass such ordinance and it is void. The county judge heard the evidence and argument, and remanded the relator to the custody of the marshal, from which this appeal is prosecuted.
The further facts show that on December 12, 1912, relator was a peddler selling apples which he had in his two-horse wagon; that he made a sale therefrom while he was on the public square in what was shown to be a part of the public street, or square, of said city. The fee to this particular portion of the square, or street, was in Hill County. Its courthouse, it seems, was located in the center of this square. This part of the square, or street, where relator was had been paved and was then and for many years prior thereto had been used by the public generally for road or street purposes. The city swept the whole of this paved street, or square, and exercised control over it as one of the public streets, or thoroughfares, of the city. It appears that the relator offered for sale apples upon the square, or streets, of said city, embraced within the fire limits thereof and that such articles offered for sale and sold by him were not products grown or raised upon his property or property rented by him or under his control.
The main contention by relator is that said ordinance is void because it is class legislation; that it prohibits peddlers from selling on its streets and authorizes other persons to sell on its streets within said fire limits, any products raised or grown upon their property, rented by them or under their control, claiming that said ordinance violates that clause of our Constitution, section 3, article 1, which is: "All free men, when they form a social compact, have equal rights; and no man or set of men is entitled to exclusive separate public emoluments or privileges, but in consideration of public services." It is undoubtedly the law of this State, as held by the Court of Civil Appeals in Wade v. Nunnelly, 19 Texas Civ. App. 256[19 Tex. Civ. App. 256], 46 S.W. Rep., 668, that persons have no vested right to make marts of the streets, alleys and other public places in any incorporated town. It is also unquestionably the *Page 175 law of this State that the Legislature may classify persons according to their business and may apply different rules to those which belong to different classes, and that municipal corporations, when authorized by their charters, can also do this. Supreme Lodge v. Johnson, 98 Tex. 1; Campbell, Receiver, v. Cook, 86 Tex. 630; Ins. Co. v. Chowning,86 Tex. 654; Marchant v. Ry. Co., 153 U.S. 380; Green v. State, 49 Tex.Crim. Rep.; Smith v. State,54 Tex. Crim. 298; Beaumont Traction Co. v. State, 57 Texas Civ. App. 605[57 Tex. Civ. App. 605], 12 S.W. Rep., 615; Douthit v. State, 36 Texas Civ. App. 396[36 Tex. Civ. App. 396], 82 S.W. Rep., 352, and 98 Tex. 344 [98 Tex. 344]; Ins. Co. v. Gooding, 49 S.W. Rep., 123; Ins. Co. v. Mettler, 185 U.S. 308; Nash Hardware Co. v. Morris, 146 S.W. Rep., 874; R.R. v. Taylor, 134 S.W. Rep., 819; R.R. v. Grenig, 142 S.W. Rep., 135; De Grazier v. Stephens, 101 Tex. 194 [101 Tex. 194].
This court, in Ex parte Henson, 49 Tex.Crim. Rep., expressly held that the City of Greenville in Hunt County, had the power to prohibit the use of certain streets and the public square of that city for the purpose of peddling. The City of Greenville, as shown by the opinion in that case, was incorporated under the general incorporation laws of this State, and that it was given the same power and authority over its streets that the City of Hillsboro was substantially given over its streets, square, etc. In that case, as is shown by the report of it, the City of Greenville made it an offense "for any person to peddle or in any other manner sell any kind of merchandise, patent medicine, or nostrum on the public square and certain streets," naming them. Henson contended that the ordinance was unreasonable and, therefore, void. He also contended that the ordinance was inseparable and that it applied to others as well as peddlers. This court held that the rule of ejusdem generis applied and that the "ordinance evidently had in view as its primary object, to prohibit peddling in the public streets and on the public square of Greenville, and what follows as to other sales relates to this character of sales — that is, sales by peddling." The opinion then proceeds to hold that even if wrong in applying the rule of ejusdem generis that then in the latter part of the ordinance, indicating that others than peddlers were prohibited from using the said streets and square for peddling purposes, that it was severable, and held the ordinance constitutional and within the powers of the corporation to prohibit peddling on said streets and public square. The opinion also holds: "We have no doubt that it is within the power of the Legislature to confer on towns and cities the power to regulate peddling within the jurisdiction of such towns and cities, especially on the public streets and squares of such cities, the same being peculiarly within the jurisdiction of towns and cities. Wade v. Nunnelly, 19 Texas Civ. App. 256[19 Tex. Civ. App. 256], 46 S.W. Rep., 668. Nor does the fact that the State, as is the case here, may license peddlers, exclude the idea of municipal supervision, where the power for such supervision is given in the charter."
It is true that this court has uniformly held that ordinances levying *Page 176 any occupation tax on peddlers which exempts from its operation other persons as peddlers, were invalid. Ex parte Jones,38 Tex. Crim. 482; Rainey v. State, 41 Tex.Crim. Rep., and other cases. And that ordinances which exempted certain persons within any given class is uniformly held invalid. But those cases do not apply to this question. As shown by these decisions and on like questions the very reason that they were held invalid and violative of said provision of our Constitution was because they excepted from the operation of the act other persons within thatclass, not because the Legislature or the municipal corporation did not have the right or power to make classes which were founded upon some just basis, and tax, regulate or prohibit one class and not the other.
The question raised in this case has many times been decided adversely to relator's contention by the courts of different States. State v. Montgomery (Me.), 43 Atl. Rep., 13; People v. Sawyer (Mich.), 64 N.W. Rep., 333; In re Nightingale, 11 Pick., 167; 2 Dillon on Municipal Corporations, sec. 706 (5 ed.); Commonwealth v. Rice, 9 Met. (Mass.), 253; Wartman v. Phila., 33 Pa. St., 202; Dutton v. Mayor, 121 Tenn. 25; People v. De Blaay,137 Mich. 402; see also note in vol. 16, p. 1030, Am. Eng. Ann. Cases, where many cases to this effect are cited.
In the case of People v. Sawyer, 64 N.W. Rep. (Mich.), 333, the Supreme Court of Michigan said: "The discrimination in favor of mechanics and farmers in the sale of their products is within the power conferred by the charter upon the common council. These immunities have been recognized for many years. By the statute of 50 Geo. III, c. 41, sec. 23, real workers and makers of goods within Great Britain were exempt from the payment of the license which was imposed upon hawkers and peddlers. 1 Barn. Adol., 279; 10 Barn. C., 66. In many if not in most of the American States, these immunities are granted to mechanics and farmers selling their own products, and the power is not questioned."
In the case of State v. Montgomery, 43 Atl. Rep. (Me.), 13, the Supreme Court of Maine said: "And the argument is that the Legislature may not properly say that acts which, if committed by one person, are a crime, if committed by another are not a crime. It is undoubtedly true that police regulations of this kind, to be valid, must be uniform, and must not discriminate against one class, and in favor of another. In other words, in an act to regulate peddlers, all peddlers of the same kind, under the same circumstances, must be regulated alike. It is a `natural, inherent, and inalienable right' of every man that he shall be subject only to the same burdens, limited only by the same restraints, regulated only by the same laws, as is his neighbor, situated under the same conditions as he is. Is this right abridged by this statute? It is contended that the exception which permits one to peddle without license `the products of his own labor, or the labor of his family, any patent of his own invention, or in which he has become interested by being a member of any firm, or stockholder in any corporation which *Page 177 has purchased the patent,' is a discrimination in favor of some and against others. We do not think so. If one may peddle freely the products of his own labor, so may all. The products may be unlike, but the freedom to prosecute one's own business and to peddle his own products is free alike to all. So of the other exceptions. While it may happen that various producers may peddle each the product of his own labor without license, but not of the labor of another, still we think this fairly answers the requirements of uniformity. The Legislature is the sole judge of the extent to which the business of peddling should be regulated, and its conclusions are final, so long as the burdens imposed do not bear unevenly upon citizens. Ex parte Thornton, 12 Fed. Rep., 538."
In the case of Wade v. Nunnelly, 19 Texas Civ. App. 256[19 Tex. Civ. App. 256], 46 S.W. Rep., 668, cited above, our third Court of Civil Appeals, in discussing the power and right of a municipal corporation of our State to prohibit the use of its public streets for market places, speaking through Judge Key, 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 privileges 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 appellees 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. It may result in inconvenience, and even additional expense to them; but there are many laws, and especially police regulations, that have this effect, and are, nevertheless, valid."
Many reasons, all of which are very reasonable, could be given why the municipalities should have and do have the right to make just such classifications as was made by this ordinance. It is noticed that the ordinance prohibits peddling on those streets which are included within the fire limits. This, it occurs to us, in the larger towns and cities of this State, is necessary to be done. We know, as common knowledge, that fire limits in towns and cities include only that part of the thickly settled and business portion. In case a fire breaks out within this territory it is necessary that the streets be kept open so that the proper fire department with its apparatus will not be obstructed in reaching the fire as quickly as possible. If peddlers were not prohibited from occupying the streets within such localities they could take possession of the streets and obstruct the fire department in such a way as to be a menace to the whole business, and thickly settled portions of towns and cities. As aptly suggested by Hon. Tarlton Morrow, city attorney *Page 178 of Hillsboro, and who has filed a brief herein in behalf of the city and respondent, that the city is charged with the duty of looking after the health of the citizens, and it is a known fact that products usually peddled are not so fresh, nor wholesome as those offered by the farmer who raises them and himself offers them for sale on the streets. The farmer or other producer who brings his own raised products to town only comes occasionally and does not remain long; whereas, the peddler takes his stand in the public street, or on the public square, in the early morning and remains throughout the whole day; that the filth that accumulates from the standing of teams and throwing of the peel of fruits and other refuse matter into the street, makes more or less a nuisance and a burden which must be removed, and is, daily by the city authorities. If, therefore, the city did not have authority to make such classification and prohibit the peddler from occupying the streets for his business, they could practically take charge of the whole street every day and from day to day throughout the year, and thus maintain their places of business in the public streets which were never intended for any such purpose. Whereas, the other merchants have to buy their own lots, erect their own buildings, or rent them and stay on their own property for the purpose of conducting their business when their competitor, the peddler, could, if not prohibited, monopolize the whole streets, pay no rent or other revenue to the city, create a nuisance and an obstruction continuously in various ways. So that we hold the classification made by this ordinance is reasonable and proper and that the ordinance, for no purpose is invalid, but on the contrary it is valid. State v. Barbelais, 101 Me. 512; Louisville v. Raupe, 6 Mon. (Ky.), 591; Com. v. Rice, 9 Met. (Mass.), 253; Atty. Gen'l v. Tongue, 12 Price, 51; Com. v. Roenisk, 10 Pa. Dist., 51; 21 Cyc., 372, and cases cited in note 49; 3 Dil. Mun. Corps., sec. 1166, and notes.
Appellant's contention that he was on that part of the public square, the fee and title to which was in the county, and that the county gave him authority to establish and maintain his peddling business there, can not be maintained. Where he located and kept his wagon and horses in his peddling business, as shown, was in the public street or square. Hill County could no more give him power or authority to obstruct the streets or public square than any other corporation or person could do. Clearly this location was within the city limits and on the public streets or square, paved and used for public uses and the city, and not the county, had jurisdiction, power and authority over it, at least, for street purposes and for a public square for the public. The judgment of the county judge will be affirmed and the relator remanded to the custody of the marshal.
Remanded to custody.
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