Ex Parte Wilchar

Relator C. M. Wilchar was convicted in County Court-at-Law of El Paso County, for violating the city ordinance of the City of El Paso, and his punishment assessed at $1.00 and costs. He applied for and was granted a writ of habeas corpus in this court wherein he attacked the validity of said ordinance. The ordinance complained of shows the city designated certain streets as right-of-way streets and made it a violation thereof to drive any vehicle therein from a cross street without coming to a full stop.

It was agreed that relator drove into one of said right-of-way streets without stopping as the ordinance required; that El Paso was a city of about eighty-five thousand people and covers a large area; that from eleven o'clock at night to seven o'clock in the morning there is very little traffic on said right-of-way streets. Boiled down to the final analysis as we understand the record, the relator contends that said ordinance in question though under the guise of traffic regulations is a speed ordinance in fact and in violation of the Speed Statute of this State and especially Article 820r, Vernon's P. C.; and is unreasonable and void. Upon the other hand, the respondent, City of El Paso, contends said ordinance is a traffic ordinance, which the city had the right to pass and enforce. Art. 820r states limitations as to rate of speed fixed by this Act shall be exclusive of all other limitations fixed by any law of this State or any political subdivision and cities and towns shall have no power to pass, enforce or maintain any ordinance in conflict with said provisions of said Act, excepting however such powers as are now or may hereafter be vested in local authorities to enact ordinances or regulations applicable equally *Page 551 or generally to all vehicles and other users of highways and providing for traffic or crossing officers or semaphores to bring about the order by passage of vehicles and other users of the public highways or certain portions thereof where the traffic is heavy and continuous. It will be readily seen from the above Statute and as we understand from the relator's brief, it is so conceded that if the ordinance in question came under that portion applicable to the traffic regulations it would be valid, but he contends that it properly falls within the speed regulations. From the record before us in this case, we are unable to agree with relator's contentions. The ordinance on its face shows that it was intended to and did apply to traffic regulation and not to speed regulations and the record tends to show as above stated that the traffic on the streets mentioned as right-of-way streets, was heavy except from eleven o'clock at night until seven o'clock in the morning. The fact that it was not heavy all the time in our opinion would not preclude the city from passing the ordinance in question. Neither do we think it is unreasonable. In case of Ex Parte Parr, 82 Tex.Crim. Rep., this court held in passing upon an ordinance involving license fees, in the City of San Antonio, "the presumption that they are reasonable is not rebutted upon the face of the ordinance nor the evidence attacking it." We think this record fails to show the ordinance unreasonable. Appellant cites us to Elie v. Adams Ex. Co.,133 N.E. 244, 21 L. R. A. 1208, from the Supreme Court of Illinois. We are of the opinion that this case is not exactly in point, but if it were under the Statutes of this State, and decisions of our court construing ordinances, we would not be inclined to follow it, under the facts of this particular case. After a careful examination of the able briefs filed by both sides, we are of the opinion that the ordinance in question is valid and relator should be remanded to the custody of the sheriff of El Paso County, and it is accordingly so ordered.

Relator remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.