Cummins v. Jones

155 P. 171, 79 Or. 276, 1916 Ore. LEXIS 182

• Court: Oregon Supreme Court
• Decided: February 15, 1916
• Status: Published

Opinion

Mr: Justice Benson

delivered the opinion of the court.

1. It is obvious from the mere reading of the “resolution” above set out that it is not a resolution or authoritative act of the council, but merely a recommendation of a committee, and the record does not disclose that the council ever acted thereon. We therefore dismiss it from our consideration and turn to our investigation of the ordinance. In Section 1 we find the definition of a “public utility vehicle” to mean:

“Any auto car, auto bus, jitney, omnibus, automobile, taxicab, or other vehicles propelled, operated, driven or drawn by any motive power whatever (including vehicles drawn by horses or other animals), which is run or operated on the streets of Oregon City to or from a point within or without Oregon City, or between particular points in Oregon City, or to a particular point in Oregon City, to or from a particular point outside of Oregon City, or over any particular route or routes for the purpose of affording a means of local transportation of passengers or persons for hire or fares as may offer themselves for transportation along the way or course or route on which it is used or operated or may be running: Provided, that railroad cars, street railway cars and hotel buses and also automobiles and taxicabs used exclusively as sight-seeing cars, and also carriages, automobiles and taxicabs which do not operate or run over a particular route or to or from a particular point or between particular points [or] not used for hire or fares, shall not be considered public utility vehicles within the meaning thereof. ’ ’

It has already been held by this court that such a classification does not render an ordinance invalid by reason of discrimination: Thielke v. Albee, 76 Or. 449 (150 Pac. 854); Id., ante, p. 48 (153 Pac. 793).

2. A careful examination discloses the fact that the ordinance in question does not undertake to regulate the operation of “utility vehicles,” but simply to prohibit all of them from operating until further ordinances shall be passed which shall license and regulate. There is, then, but one question for us to consider, and that is: Has the city the power to prohibit the owners of jitney cars from carrying on their business upon its streets? In the case of Greene v. City of San Antonio (Tex. Civ. App.), 178 S. W. 6, Mr. Chief Justice Fly, in passing upon a “jitney” ordinance, says:

“No man has the right to use a street for the prosecution of his private business, and his use for that purpose -may be prohibited or regulated as the state or municipality may deem best for the public good. * * In the case of Fifth Avenue Coach Co. v. City of New York, 194 N. Y. 19 (86 N. E. 824, 16 Ann. Cas. 695, 21 L. R. A. (N. S.) 744), it was held * * that the city had the authority to grant or withhold the right to run coaches on the streets. ’ ’

Again quoting from the same opinion:

“So in this case appellant has never had any vested right to use the streets of San Antonio to engage in the business of a common carrier of passengers for hire, and no right of his is infringed or invaded by the ordinance requiring certain things to be done in order to enter into business on the streets, which have, at the expenditure of large sums, been placed by the city in prime condition for automobile travel. The streets belong to the public, the city being its trustee, and no private individual or corporation has a right to use such streets for the prosecution of a business without the consent of the trustee and a compliance with the conditions upon which the permission to so use them is given. ’ ’

This case is cited with approval in Le Blanc v. City of New Orleans, 138 La. 000 (70 South. 212). The same doctrine is announced in the case of Dickey v. Davis (W. Va.), 85 S. E. 781 (L. R. A. 1915F, 840), from which we quote as follows:

“The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage-coach or omnibus. The former is the usual'"' and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual and extraordinary. As to the former the extent of legislative power is that of regulation; but as to the latter its power is broader. The right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature. This distinction, elementary and fundamental in character, is recognized by all the authorities”: Citing Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242; McQuillin, Mun. Corp. 1620.

Our attention has not been called to any authorities to the contrary. We conclude, therefore, that since the ordinance in question is purely prohibitory, and cities have the undoubted right to prohibit such use of their streets, the demurrer should have been sustained. A decree will be entered here sustaining the demurrer and dismissing the suit.

Reversed. Suit Dismissed.

Me. Justice Eakin not sitting.