Flower Cab Co. v. Petitte

685 F.2d 192
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 4, 1982
DocketNo. 82-2208
StatusPublished
Cited by44 cases

This text of 685 F.2d 192 (Flower Cab Co. v. Petitte) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flower Cab Co. v. Petitte, 685 F.2d 192 (7th Cir. 1982).

Opinions

POSNER, Circuit Judge.

Chapter 28, section 28-9.1, of the Municipal Code of the City of Chicago provides that taxicab licenses “shall be assignable,” with certain qualifications not pertinent to this case. On July 16, 1982, the Commissioner of Consumer Services, who is responsible for administering Chapter 28 (see Munic.Code, ch. 16, § 16-4(2)), announced that she would not act on any pending applications to assign taxicab licenses because a proposed ordinance prohibiting such assignment had been introduced in the City Council the day before. A few days earlier Checker Taxi Company had agreed to sell Flower Cab Company 13 taxicab licenses, and on the day before the announcement Flower had filed its application for approval of the assignments under section 28-9.1. The Commissioner refused to act on it and Checker and Flower thereupon brought suit under 42 U.S.C. § 1983 against her and the [193]*193city, seeking an injunction to compel her to act. The district court granted a preliminary injunction and the defendants, having failed to obtain from the district judge a stay pending appeal, have asked us for a stay.

The district court concluded that the plaintiffs would be able to prove at the trial of this case that the Commissioner’s refusal to consider Flower’s application violated the Fourteenth Amendment by depriving the plaintiffs of a property right without due process of law, because she acted arbitrarily, without justification, in violation of the ordinance, and without giving the plaintiffs notice or an opportunity for a hearing. The plaintiffs do not, as we understand it, complain that the city has taken their property without just compensation; they argue that the city violated their constitutional rights by taking it at all, in violation of the ordinance and without according them any procedural safeguards.

For purposes of acting on the defendants’ motion for a stay pending appeal we shall assume without deciding both that a taxicab license in Chicago is “property” within the meaning of the due process clause of the Fourteenth Amendment and that a refusal to allow the assignment of a property right made assignable by state or municipal law is a sufficient deprivation of property to activate the clause, even though the refusal was temporary (i.e., until the City Council acted on the proposed ordinance). It remains to consider whether there was a denial of due process of law. We think there probably was not. Although cast in familiar terms of denial of procedural rights, the complaint in this case does not seek notice or a hearing; it seeks compliance with an ordinance that imposes a duty on the Commissioner of Consumer Services to approve the assignment of taxicab licenses upon conditions that the plaintiffs claim (without contradiction) to satisfy. We think it a doubtful proposition that every failure — even every deliberate refusal — of state or city officials to comply with ministerial duties in transferring property gives rise to a claim under the Constitution: that if a clerk refuses to record a deed, the property owner is entitled to a mandatory injunction against him from a federal court. This is not to suggest that a federal court cannot issue a mandatory injunction in an appropriate case brought under section 1983; of course it can. Carter v. Hardy, 526 F.2d 314 (5th Cir. 1976). But this does not strike us as an appropriate case.

The federal courts are an odd place to litigate compliance with municipal law, and section 1983 an inapt vehicle for bringing mandamus actions against municipal officials. Of course this suit could not have been brought under the federal mandamus statute, 28 U.S.C. § 1361, which authorizes actions only against federal officers. If a state refused to provide its own, reasonable remedies in the nature of mandamus to control its officers whose duties are to protect property rights, then a serious constitutional issue would arise; but there is no suggestion of that here, and in fact mandamus is available under Illinois law to compel local officers to perform their ministerial duties. See Ill.Rev.Stat.1981, ch. 110, art. XIV; Saline Branch Drainage Dist. v. Urbana-Champaign Sanitary Dist., 395 Ill. 26, 69 N.E.2d 251 (1946); People ex rel. Metropolitan Nursing Home Ass’n v. Walker, 31 Ill.App.3d 38, 332 N.E.2d 750 (1975).

We think in short that this case probably comes within the principle of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), that not every act of a state officer that deprives a person of his property rights violates the due process clause, at least where there are adequate postdeprivation remedies under state law, such as mandamus, as there appear to be here. As in Parratt, “the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur.” Id. at 541, 101 S.Ct. at 1915. Cf. Ellis v. Hamilton, 669 F.2d 510, 515 (7th Cir. 1982); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1352 (9th Cir. 1981); Sheppard v. Moore, 514 F.Supp. 1372, 1376 (M.D.N.C.1981). If this complaint is found to state a claim under the due process clause, the scope of section 1983 will be dramatically broadened to embrace every deliberate failure by a state or local officer [194]*194to perform a ministerial duty necessary to the full enjoyment of a property right.

It is significant that the plaintiffs’ counsel has cited no precedent for this expansion in the reach of the Fourteenth Amendment. Nor have we discovered any. Flood v. Margis, 461 F.2d 253 (7th Cir. 1972), holds only (so far as is relevant to this case) that the federal courts have jurisdiction to consider a claim of denial of due process based on an arbitrary refusal to renew a license — a proposition not at issue in this case. Sternaman v. County of McHenry, 454 F.Supp. 240 (N.D.Ill.1978), involved the arbitrary denial of a building permit by a county zoning board; and although the court found a denial of due process, the emphasis in the opinion is on unequal treatment constituting a denial of equal protection. See id. at 245, 250. In the present case there is no suggestion of unequal treatment: so far as appears, all applications for assignment of taxicab licenses have been frozen. A single sentence in Madyun v. Thompson, 657 F.2d 868, 873 (7th Cir. 1981), relying on a pre-Parratt decision, Kimbrough v. O’Neil, 545 F.2d 1059 (7th Cir. 1976) (en banc),

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Bluebook (online)
685 F.2d 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flower-cab-co-v-petitte-ca7-1982.