The opinion
Relator by his attorney has filed herein a very lengthy motion for a rehearing. There is but one assertion therein which we deem it either necessary or proper to mention. We quote that assertion: "In the majority opinion the court says: `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.'
"It is true that relator asserts that the ordinance involves class legislation in the most objectionable form and of the `purest ray serene'; but he makes no such contention as is stated in the latter part of the quoted portion of the opinion. He does not claim to be a `peddler' and there can not be found a scintilla of evidence in the record to show him to be such; and as the whole fabric of the opinion is shot through with this thread of error, and as the judgment appears, fundamentally, to rest upon an assumption not only dehors the record but flatly contradictory thereof, we deem it appropriate, then, to discuss relator's status in the purview of the ordinance."
In the record before us the following is specifically agreed to by both parties as facts, — not that evidence was introduced showing or tending to show it — but as facts, towit:
"On the 12th day of December, 1912, a warrant was duly issued out of the City Corporation Court of the city, being based upon a complaint in due form made and filed charging the defendant with vending and displaying goods, wares, and produce upon the streets of the City of Hillsboro embraced within the fire limits, and of peddling goods, wares, and produce upon such streets, when he was not then offering for sale products raised or grown upon property owned or rented by him or upon property under his control.
"Upon this warrant B.D. Hooks, the city marshal, arrested the defendant, and still holds him by reason of the authority of said complaint and warrant.
"The defendant on the 12th day of December, 1912, in the City of Hillsboro, Texas, and before the making of said complaint, did offer for sale and vend and peddle goods, wares, and produce upon the streets of the city embraced within the fire limits, towit: on Elm Street on the public square, and that such goods, wares, and produce were not products grown or raised upon property owned or rented by him or under his control, — towit: apples."
It occurs to us that this shows not only "a scintilla of evidence," but it goes a little bit further, and, we think, is amply sufficient to show that not only did relator use the streets within the fire limits of the *Page 180
City of Hillsboro for the purpose of vending or displaying goods, wares, merchandise and produce, but that he did offer for sale and vend and peddle goods, wares and produce upon such streets not grown or raised on property owned by him, or under his control, and that this shows he was a peddler.
Other than the very lengthy motion for a rehearing, in the opinion of the writer hereof, there is no other noticeable feature of it, except an uncalled for and an unnecessary exhibition of ill-temper. The motion is overruled.
Overruled.