A brief submitted in connection with your request cites two Texas appellate court cases for the proposition that the power to regulate an activity includes the power to impose a fee to cover the cost of regulation. Producers Ass'n of San Antonio v. City of San Antonio, 326 S.W.2d 222 (Tex.Civ.App.-San Antonio 1959, writ ref'd n.r.e.); Doeppenschmidt v. City of New Braunfels, 289 S.W. 425 (Tex.Civ.App.-Austin 1926, writ ref'd). Producers Association of San Antonio dealt with the authority of a home-rule city to impose a fee by ordinance and, as such, is distinguishable from the situation addressed in your request.
Taylor v. Dunn, 80 Tex. 652; Nelson Co. v. Stephenson, 168 S.W. 61; Greene v. City of San Antonio, 178 S.W. 6. Other authorities are numerous. We pretermit extended discussion of the proposition that the decision in Doepenschmidt v. The City of New Braunfels, 289 S.W. 425, supports relator's contention. We do not think so, but any expression from us that said opinion incorrectly interprets the legislative denial in article 6698, Texas Civ. Statute, of a grant of authority in that particular act, — into a general denial of such power and authority claimed to be derived from other sources, — would be dicta, and this usually leads only to confusion.
Under the rules of pleading and practice in mandamus actions where defendants stand solely on an unverified general denial, plaintiff is entitled to summary judgment if his pleadings state facts entitling him to the relief sued for. See 28 Tex.Jur., page 641, "Mandamus," Sec. 67; Doeppenschmidt v. City of New Braunfels, Tex.Civ.App. Austin, 1927, 289 S.W. 425, writ refused; and Marr v. Reynolds, Eastland, Tex.Civ.App. 1941, 151 S.W.2d 263, 264. We quote from Marr v. Reynolds, supra:
In fact, it has been held, with the approval of this Court, that where the attorneys and the judge repair to the judge's chambers by common consent for the purpose of discussing and deciding a case, the judgment so rendered under such circumstances is valid. Doeppenschmidt v. City of New Braunfels (Civ. App.), 289 S.W. 425 (writ refused). See also Bridgman v. Moore, supra.
Greene v. City of San Antonio, 178 S.W. 6, writ refused; Booth v. City of Dallas, 179 S.W. 301, writ refused. However, since the passage of Article 6698 the courts in numerous decisions have held that although a municipality may require a permit to operate motor vehicles on its streets, it cannot collect a fee or tax for the license or privilege of operating the same within a city or town. A B C Storage Moving Co. v. City of Houston, 269 S.W. 882, writ refused; Ball v. City of McKinney, 286 S.W. 341, writ refused; City of Waco v. Grimes, 288 S.W. 1113, writ refused; Doeppenchschmidt v. City of New Braunfels, 289 S.W. 425, writ refused; City of El Paso v. Look, 288 S.W. 560, writ refused; City of Corpus Christi v. Texas Driverless Co. 144 Tex. 288, 190 S.W.2d 484; Mahany on Texas Taxes, Section 28.07. The taxicabs of petitioner are subject to and required to pay the state license or registration fee for the privilege of using the public highways of the state, which privilege, under our law, carries with it the right to use the streets of the City of Houston under such restrictions as the municipality may reasonably and lawfully impose.
This article has been authoritatively construed to have that effect. A B C Storage Moving Co. v. City of Houston (Tex. Civ. App.), 269 S.W. 882 (writ refused); Ball v. City of McKinney (Tex. Civ. App.), 286 S.W. 341 (writ refused); City of Waco v. Grimes (Tex. Civ. App.), 288 S.W. 1113 (writ refused); and Doeppenschmidt v. City of New Braunfels (Tex. Civ. App.), 289 S.W. 425 (writ refused). The Court of Civil Appeals correctly concluded that the attempted levy by the city of a license and inspection fee on the "driverless automobile" business was invalid.
However, we are of the opinion that a court's action in this respect may be such a substantial compliance with these rules that it may not be questioned in a collateral attack. In Doeppenschmidt v. City of New Braunfels, 289 S.W. 425, writ refused, it was held, even in a direct attack, that in the absence of an objection it was immaterial whether the court performed the act of rendering judgment in his private office or in the courtroom. In Townsley v. State, 103 Tex.Crim. Rep., 281 S.W. 1054, in another direct attack, the Court of Criminal Appeals held that the drawing of a special venire in the clerk's office was not invalid under a statute requiring it to be drawn by the clerk in the presence of the judge "in open court."
Under the following decisions, the plaintiff could maintain a suit to compel the defendant city to reinstate its permit if the defendant city forfeited said permit for breach of the void 4% milk fat requirement. See City of Greenville v. Cabell's, Inc., Tex.Civ.App., 207 S.W.2d 898; City of El Paso v. Russell Glenn Distributing Co., Tex.Civ.App., 237 S.W.2d 818; City of Electra v. Carnation Co., Tex.Civ.App., 207 S.W.2d 192; City of Port Arthur v. Carnation Co., Tex.Civ.App., 238 S.W.2d 559; Falfurrias Creamery Co. v. City of Laredo, Tex.Civ.App., 276 S.W.2d 351. See, also, Doeppenschmidt v. City of New Braunfels, Tex.Civ.App., 289 S.W. 425. We have said several times that the plaintiff has no remedy in the criminal courts to procure this reinstatement, but neither does success in a criminal prosecution prevent a forfeiture of permit, and it does seem a strange rule of law which would deny the plaintiff a civil remedy to prevent the very forfeiture which, after it occurs, he is granted a civil remedy to revoke.
Said section 9 of the ordinance, requiring the payment of an annual fee of $20 per automobile, is clearly in conflict with the provisions of this article, which says: "and no such registration fees or other like burdens shall be required of any owner of any motor vehicle or motorcycle by any county, municipality or other sub-division of the State." A. B. C. Storage Moving Company v. City of Houston, Tex.Civ.App. 269 S.W. 882; Doeppenschmidt v. City of New Braunfels, Tex.Civ.App. 289 S.W. 425; Genusa v. City of Houston, Tex.Civ.App. 10 S.W.2d 772. Appellant's second point is: "The court erred in holding that the Ordinance regulating the business of renting driverless automobiles was invalid on the grounds that defendant City is without authority to exact the insurance policy (or cash securities in lieu thereof) provided by Section 10 of the Ordinance."
The validity of the statute in question has been fully established by judicial decisions. Glenn v. Milam, 114 Tex. 160, 263 S.W. 900, 901; Doeppenschmidt v. New Braunfels (Tex.Civ.App.) 289 S.W. 425; Montague County v. White (Tex.Civ.App.) 250 S.W. 736. So far as our investigation has shown, however, the jurisdiction thus sustained is as reasonably referable to the district court as to the district judge.