City of Montgomery v. Orpheum Taxi Co.

82 So. 117, 203 Ala. 103, 1919 Ala. LEXIS 151

• Court: Supreme Court of Alabama
• Decided: February 6, 1919
• Docket: 3 Div. 374.
• Status: Published

Opinions

McGLELLAN, J.

The appellee filed this bill against the city of Montgomery and its officials to enjoin the enforcement of a penal ordinance wherein the use and regulation of automobiles (“taxicabs”) upon the streets of the city for hire only is prescribed. The report of the appeal will reproduce the ordinance. The court below overruled the demurrer questioning the equity of the bill, and after hearing granted the injunction prayed in the bill restraining the municipal authorities from enforcing the ordinance in any respect, and so on the theory that the ordinance was wholly void because primarily it was inconsistent with the laws enacted by the Legislature.

It is insisted for appellant that the bill is without equity, on grounds discussed in Brown v. Birmingham, 140 Ala. 500, 37 South. 173, and Board of Commissioners v. Orr, 181 Ala. 308, 61 South. 920, 45 L. R. A. (N. S.) 575. The view prevailing in this court permits pretermission of the consideration of that question; and it is not, therefore, considered or decided.

The state law with which the ordinance is thought to be in conflict is the enactment entitled:

'“An act providing for the registration, licensing, identification and regulation of motor vehicles operated upon the public highways of this state; and fixing liability for persons riding therein, and providing penalties and punishments for violations of the provisions of said act.”' Gen. Acts 1911, pp. 634-650.

So far as presently pertinent, section 32 of the state law provides:

“Local Ordinances Prohibited. — Except as herein otherwise provided, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner or chauffeur or other authorized driver to whom this act is applicable, any additional license or permit for the use of the public highways, or excluding any such owner, chauffeur or other authorized driver from the free use of such highways, nor to pass, enforce or maintain any ordinance, rule or regulation regulating motor vehicles or their speed contrary to the provisions of this act, nor shall any such law now in force or hereafter enacted have any effect; provided, however, that the powers given to local authorities to regulate vehicles offered to the public for hire and processions, assemblages, or parades in the streets or public places and all ordinances, rules and regulations which may have been or which may be enacted in pursuance of such powers shall remain in full force and effect.”

[1] When this section is read in connection with a proviso contained in the last part of section 23 of the state law — a section that makes prescriptions for the licensing of “chauffeurs” — the effect of the provisions of the state law for the licensing of chauffeurs affirmatively restricts the requirements for the licensing of such drivers to those only who drive automobiles for hire for public use, excluding from the exaction “chauffeurs” who drive automobiles devote'd to private use. The particular provision for a “chauffeur’s” license through state authorities (section 23), along with the broad prohibition (in section 32) against the exaction by “local authorities” of “any additional license or permit” which would interfere with the “free use of the public highways” by persons so licensed, discloses -the legislative purpose to have specifically forbid the imposition or exaction of any other license or permit from or of a chauffeur who operates an automobile for hire, or for public use, thus restricting, necessarily, the effect of the first proviso in section 32 to a sphere of regulation by “local authorities” that excludes the right of the local authorities to prescribe a chauffeur’s license or permit to drive a public service car as a condition to the “free use” of streets of a city, town, or village in this state.

[2] Such being the effect of the provisions of sections 32 and 23 of the act, the question is whether the provision of section 32 forbidding the prescription of “any additional license or permit” by local authorities violates the protective provisions of section 220 of the Constitution of 1901. That section reads:

“No person, firm, association or corporation shall be authorized or permitted to use the streets, avenues, alleys or public places of any city, town or village for the construction or operation of any public utility or private enterprise, without first obtaining the consent of the proper authorities of such city, town or village.”

Section 24, art. 12, of the Constitution of 1875, the predecessor in partial purpose of section 220 of the present organic law, provides that “no street passenger railway shall [should] be constructed within the limits of any city or town, without the consent of the local authorities.” It will be noted that the quoted section of the previous Constitution interposed its prohibition against the construction of a street passenger railway anywhere within the limits of the municipality, not confining the inhibition to public ways and places as in the present organic law, unless the local authorities consented thereto. The motive inspiring the limited prohibition set forth in the previous Constitution was to preserve against legislative action a measure of local self-government, a character of self-determination, through “local authorities,” with respect to the construction of a street passenger railway within the limits of any town or city in this state. This was the fundamental idea illustrated in section 24. The makers of the succeeding Constitution of 1901, through the committee on municipal corporations, accepted the idea thus originally expressed in the earlier organic law, and greatly amplified its application and effect, with respect to streets, etc., in the provisions of section 220. The motive was the same, viz. to restrict the power of the Legislature to the extent that it could not enact laws affecting or governing the use of local public ways that did not recognize or respect the thus permanently preserved rights of the local authorities to determine, according to their judgments, whether or not the ways and places mentioned in section 220 should be used for the purposes prescribed in section 220. There is no room for doubt or debate as to the motive inspiring the makers of the organic law, or the general purpose they entertained and undertook to effect. When read in the light of this motive and this purpose, what does section 220 mean? Recourse to the procedural development in the constitutional convention of 1901 of what became section 220 may be had with advantage in the sound interpretation of this section.

The report of the committee on municipal corporations to the convention framing the Constitution of 1901 included this, as section 5 thereof:

“No street railway, gas, water, steam or hot water heating, telephone, telegraph, electric light, or power company within a city, town or village shall be permitted or authorized to construct its tracks or mains or erect its poles, posts, or other apparatus or string its wires upon the same, along, over, under, or across the streets, avenues, alleys, or public grounds of such city, town, or village, without the consent of the proper authorities of such city, town, or village being first had and obtained.”

On the sixty-fifth day of the convention’s session (Journal, p. 1164) the matter now constituting section 220 (above quoted) was substituted, at the instance of the committee, for section 5, supra, as set forth in the report of the committee on municipal corporations; the chairman stating (see Debates Const. Conv. p. 211, Afternoon Session, 65th Day):

“That the substitute offered conveys the same idea contained in section 5 of the printed report, but the verbiage, I think, is slightly different, and, as the gentleman from Lee suggested, I think it is an improvement. It simply provides that no person, firm, or corporation can use the streets of a city for the purpose of carrying on any business without first obtaining the consent of the proper municipal authorities.” (Italics supplied.)

It is to be especially observed that the original report of the municipal corporations committee (section 5, Journal, p. 409, quoted above) enumerated the subjects of the prohibition therein declared, and also that the inhibition was directed alone against the construction of tracks, mains, the erection of poles, posts, or other apparatus, or the stringing of wires upon, along, over, under, or across the public was or places mentioned in the committee’s section 5, quoted above; whereas section 220, written in far broader terms, contemplated the permanent preservation of the municipal right to control, by withholding consent, the use of the streets, etc., not only for the construction, but also, alternatively, for the operation of any public utility or private enterprise, and in the process of prescribing the subjects of the inhibition employed terms that comprehended, as the chairman stated, any business, “any public utility or private enterprise,” that could use the public ways and places in the municipality. The thing over which the municipality may exercise the control contemplated is the use of the public ways and places therein; and that use is not confined to an agency that must have a superimposed or inlaid structure to avail of the use, but includes as well a use that can be enjoyed without any stable structure or construction in or upon the public ways or places in the municipality. To affirm, as is suggested, that the prohibition expressed in section 220 applies only to those agencies that require a structure in or upon these public ways or places would involve the denial of the deserved effect to the alternative introduced in the substitute for section 5 of the committee report that the operation of a public utility or private enterprise, cannot be authorized or permitted, and the denial of appropriate effect to the further circumstances that the substitute for section 5 of the committee report departed from the method of enumeration of the prohibited uses and accepted the broader statement which, as the chairman stated, comprehended “any business,” not simply those enumerated in the original draft for which section 220 became the substitute.

Under the provisions of sections 23 and 32 of the Automobile Law of 1911, cited ante, the state, through secretary of state, exacts of and grants to chauffeurs licenses to operate automobiles for hire. This exacting of a license is unquestionably valid to the extent that such chauffeurs are authorized to operate automobiles for hire over highways not within the restrictions of section 220 with respect to streets in cities, towns, and villages, where consent of the proper municipal authority is fixed by section 220 as a condition to the use of such public ways and places by such chauffeurs, notwithstanding such chauffeurs are licensed by the state. It therefore results that the provision in section 32 of the Acts of 1911, cited ante, wherein municipal authorities are forbidden to require “any additional license or permit” as a condition to the use of the streets, etc., in cities, towns, or villages, is in conflict with section 220 of the Constitution of 1901, and is invalid for the reason that the effect of the provision was, if valid, to clothe chauffeurs operating automobiles for hire with the licensed right to use the streets, etc., of cities, towns, and villages “without first obtaining the consent of the proper authorities of such city, town, or village.”

[3] Since the use of the streets, etc., of cities, towns, and villages for carrying on any business, for the conduct of any public utility or private enterprise, is made dependent upon the consent of the local municipal authorities, such authorities may prescribe the conditions within municipal powers under which the use of the streets, etc., may be enjoyed.

Section 1340 of the Code of 1907 confers on municipalities specified authority to license the use therein of any vehicle kept for hire. That section reads:

“To regulate and license the use of carts, drays, wagons, coaches, omnibuses, and every description of carriages and vehicles kept for hire and to license and regulate the use of the streets of the town or city by persons who use vehicles or solicit or transact business thereon.”

[4] While the title of the Automobile Act of 1911 makes no particular reference to the licensing of chauffeurs (as required in sections 23 and 32 thereof), the Legislature undoubtedly assumed, and quite correctly, that under the feature of the title referring to the regulation of automobiles provision might be made for the licensing of chauffeurs to operate such vehicles. The statute (section 1340) specifically authorizes the municipal licensing of both vehicles and persons using them. Where there is an express legislative grant to a municipality of power to ordain to a particular effect or to do a particular tiling, the municipal ordinance expressive of that power cannot be inquired into with respect to its policy or reasonableness. Lindsay v. Mayor, etc., 104 Ala. 257, 16 South. 545, 27 L. R. A. 436, 53 Am. St. Rep. 44.

But, even if the provisions of this ordinance creating conditions to the issuance of a chauffeur’s license (viz. a nominal charge of $1, the qualifications, attested and physical, of the particular applicant to engage in the public business of driving taxicabs fox-hire over the streets of the city of Montgomery, and the execution and maintenance of a bond in the sum of $500, “payable to the city for the use and benefit of any person or persons injured or damaged by a taxicab which said driver may be operating,” see § 20 of the ordinance) are considered with a view to determining their reasonableness vel non, they cannot be declared unreasonable exactions in the interest of the safety and welfare of the public in the use of the streets of the city, and of the protection of those members of the public who may suffer injury or damage by the taxicab driven by the applicant.

The features of the ordinance prescribing regulations for the driving, parking (standing), and stopping of such automobiles upon the street of the city are well within the expressly granted powers conferred by Code 1907, § 1452, which reads:

“Towns or cities have the power to regulate the running of railroad trains, or engines, or automobiles, and electric motors, within the corporate boundai-ies, and to prohibit the standing thereof on or across the streets or highways within the corporate boundaries.”

It appears from the bill that the complainant is a corporation chartered to conduct in the city and county of Montgomery a taxicab business, and that the business it is doing is that of a common carrier of passengers for hire. It further appears that the prosecution of complainant’s business is entirely dependent upon the use of the thoroughfares of Montgomery. It is manifest that, if the complainant’s business is not a public utility — an assumption that is by no means certainly correct — it is undoubtedly a “pi-ivate entei-prise” within the meaning of section 220 of the Constitution. It is hardly necessary to add that the complainant’s corporate authority to conduct its taxicab business was and is subject to the provisions of section 220 of the Constitution, as well as the effect of the statutes conferring -on the municipality the power to exact licenses of those using the streets in the prosecution of their enterprises and to regulate in the interest of the public safety and welfare the use of the streets .by persons and vehicles.

[5] The ordinance is not invalid. The restraint of its enforcement by the injunction issued by the court below was ill-advised, and the decree to that end is reversed. Since the ordinance is valid,-the bill is without equity; and a decree will be here entered dismissing the bill.

Reversed and rendered.

All the Justices concur, except