El Paso herald. (El Paso, Tex.) 1901-1931, 1915-03-15
LAWYERS VIEW.

March 18Th. 1918.
Editor Fl Paso Herald
The proposed ordinance % regulate the
jitne cars designated as motor busses,7
which is now before the city council. is enc
Of much public interest for there are many
who would do away with the Jilnes. whine
others favor them.
A short while ago 7 had occasion to
investigate the power Of the city council TO
inhibit or materially hamper the operation
OF cars engaged in the jitne service. and
my Investigation justifIes me IN saying that
the council cannot legally adopt the pro-
posed ordinance IN the absence Of express
legislative authority. or in the absence o.
power necessarily to be implied from the
express powers granted.
The purpose Of the proposed ordnance.
insofar as it is intended TO protect the pub
lie and afford redress against the carrier.
is to be commended, hut the method by
which such redress is designed TO be
youchsafed WILL % the ordinance be
adopted. prove futile and harmful in that
the public will be led TO believe that in
patronizlng the motor bus they will be
secured in the recovery Of damages by the
bond sought 10 be eEacted by the orul-
nance. whereas should such bond be given,
IL would be non-enforceabIe. for that. be-
ing exacted colore offici or as a condition
20 some act to which the party would be
entitled without giving bond. IL would be
void for duress. See Leon VS.. Roberts. 81
Tex bL-- ElclOtr LlQnal. Oh Tex 40.
The general law provides that the council
may tax and license automobiles. and eI-
elusive Of the exercise OF the police power.
this is about as far as the council may 60
in the absence Of statutory law or charter
provision simplifying the power, for il will
be presumed that the provisions OF the
general law and the charter granted by the
state does in clear and uumistakable terms
grant all the power. and no more, which
the stale intended TO grant Pye vs. Peter
son. 45 Tex. SIS, and in the famous Bren-
rom 9
the law was stated 10 be. that IL there
existed a fair doubt as TO the existence OF
a power in q municipality, the power would
some Of the Defects.
Specifically. the following may be pointed
out as a Few Of the many vices in the pro-
posed ordinance
The ordinance provides that no license
shall be issued until the applicant therefor
shall have passed qualifying examination
before the chief Of police or some one
which does not exist or its existence doubt
ful, in the council attempted by IL 20 be
delegated first 70 the chief OF police, and
then by him 10 some one else and so on
al tnfinitum. and il viii be observed that
the duty TO examine and pass upon the
applicants qualification IS not merely min
isterial, but involves the exercise OF discre-
tion. but assuming though not concedins
the council Itself has the power 10 institute
examination into the qualifications Of
the applicant. the power could not be dele
gated
The ordinance also provides that the ap-
plicatiOn for license shall be accompanied
by a bond in the sum Of $4,000. 10 De con-
ditioued, that the obliEor will pay. or re-
turn 10 the city all sums due Tor license
tthe ordinance provides the license shall
be paid for in advance tax or other LA
bllity. including all fines and fOrfeitures
assessed against the ohlgor by any court
Further that the obliEor will satisfy and
discharge all final judgments recovered
against the obliEor or any Of his servants
by any person whosoever. that the bond
shall inure TO the benefit OF all persons
injured. who may have the right 10 re-
cover for any breach OF the same, or for
the violation Of any ordinance Of the city
by the obligor OF any one In his employ
Unique Feature.
An unique feature OF the proposed ordi-
nance is that It provides that II a suit or
suits be instituted against the principal and
sureties on the bond. the city council shall
then preadjudic1te the probable merits Of
the suit or suits (but how and in what way,
the ordinance docs not dLsclosel and leter-