Schlesinger v. City of Atlanta

129 S.E. 861, 161 Ga. 148, 1925 Ga. LEXIS 318

• Court: Supreme Court of Georgia
• Decided: September 23, 1925
• Docket: No. 4864
• Status: Published

Opinion

Hines, J.

The use of streets and highways is not absolute and unrestricted. Such use is subject to reasonable regulation by the public. So the operators of jitneys or busses on streets have been subjected to more or less stringent regulations. They can be required to give bonds to indemnify persons for injuries to their persons or property growing out of the negligent operation of these vehicles, and to pay larger license fees than those imposed upon operators of taxicabs, and graded according to,the seating capacity of the vehicles employed. Hazleton v. Atlanta, 144 Ga. 775 (87 S. E. 1043); Donella v. Enright, 195 N. Y. S. 217. They may be required to select the routes on which they will operate, and to maintain regular schedules. Greene v. San Antonio (Tex. Civ. App.), 178 S. W. 6; Ex parte Lee, 28 Cal. App. 719 (153 Pac. 992). The State may declare jitney busses operating in cities to be common carriers, and require operators to secure from the Public Service Commission certificates of public convenience and necessity. Public Service Commission v. Booth, 170 App. Div. 590 (156 N. Y. Supp. 140); Public Service Commission v. Hurtgan, 91 Misc. 432 (154 N. Y. Supp. 897); Thielke v. Albee, 79 Ore. 48 (153 Pac. 793). So many other regulations of the use of streets and highways are permissible. Hendrick v. Maryland, 235 U. S. 610 (35 Sup. Ct. 140, 59 L. ed. 385).

-But can the City of Atlanta absolutely prohibit the operation of jitneys and motor busses, as common carriers, within its fire limits, and upon all streets in which street-railway tracks are laid and upon which street ears are operated ? The contention of counsel for plaintiffs is that the business of so conducting jitneys and motor busses on the streets of the City of Atlanta is a lawful one, and that their inherent right as common carriers to transport passengers for hire in such vehicles can not be absolutely denied. Hndoubtedly the right of individuals to engage in the ordinary occupations of life can not be prohibited by the State or municipality. All men are by nature equally free and independent. They have certain inherent rights, such as the enjoyment of life and liberty, the pursuit of happiness, the means of acquiring and possessing property, and of engaging in lawful occupations in lawful ways for the purpose of making a livelihood, of which, when they enter into a state of society, they can not be deprived. The right to nse one’s own property as he sees fit, so long as he does not thereby injure others, and to engage in lawful occupations in proper places and at proper times, is a right which not even the legislative power of the State can take from the individual. The right to make a living is among the greatest óf human rights, and when, lawfully pursued can not be denied. Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. 1064, 30 L. ed. 220); Gulf &c. R. v. Ellis, 165 U. S. 150 (17 Sup. Ct. 255, 41 L. ed. 666); Eubanks v. Richmond, 226 U. S. 137 (33 Sup. Ct. 76, 57 L. ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 1123); Myer v. Nebraska, 262 U. S. 390, 399 (43 Sup. Ct. 625, 67 L. ed. 1042, 29 A. L. R. 1446). But this principle has no application to the inhibition of that which the individual has no natural or inherent right to do. If the individual has no such inherent right to conduct the business of a common carrier by jitneys or busses upon the streets of the city, his case does not fall within this principle. In such a case the conduct of such business can be inhibited.

This brings us to determine the'serious question in this case, which is, whether or not individuals doing business as common carriers have the inherent or natural right to use the streets of the city for transportation for hire of passengers, in motor vehicles or otherwise. “A highway is a way open to all the people.” Southern Ry. Co. v. Combs, 124 Ga. 1004 (53 S. E. 508). This court has adopted this definition of the term: “A highway is a public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle.” A. & W. P. R. Co. v. A., B. & A. R. Co., 125 Ga. 529, 545 (54 S. E. 736). “A street is .a highway in a city or town, used by the public for the purpose of travel, either by means of vehicles, or on foot.” Id. Streets and public places belong to the general as well as the local public. Simon v. City of Atlanta, 67 Ga. 618 (44 Am. R. 739). From the premise that streets belong to the public the conclusion is drawn that individuals have the right to use the streets of a city for the purpose of transporting passengers for hire. This conclusion does not properly follow from this premise. The fact that the streets belong to the public does not authorize individuals to use them for all purposes. Without express legislative authority a city can not grant to any person the right to erect or maintain a structure or obstruction in a public street. Civil Code (1910), § 894. So this court has held that the City of Augusta could not grant to an individual the right to hold a fair or carnival on the streets of that city. City Council of Augusta v. Reynolds, 122 Ga. 754 (50 S. E. 998, 69 L. R. A. 564, 106 Am. St. R. 147). The primary purpose of streets is for passage and travel, and they are primarily intended for the use of travelers. Simon v. City of Atlanta, and City Council of Augusta v. Reynolds, supra. Streets and highways are not intended to furnish places of business to individual members of the public. An individual can not maintain a place of business on a public road, and a permanent structure thereon for such purposes, which materially interferes with travel thereon, is a nuisance per se, which a court of equity will enjoin. Rider v. Porter, 147 Ga. 760 (95 S. E. 284). In Cottle v. Wilkes, 141 Ga. 499 (81 S. E. 201), this court affirmed a judgment enjoining the hauling of large sawmill logs on two-wheel carts over public roads and bridges, whereby the roads were cut into ditches and gullies and the bridges broken. It will be noted that the use, and not the abuse, of the roads and bridges was restrained. In Commonwealth v. Stodder, 2 Cush. 562 (48 Am. D. 679), the Supreme Court of Massachusetts upheld an ordinance of the City of Boston, which prescribed the streets upon which omnibuses might be operated, and which excluded them from the use of other streets. In Commonwealth v. Kingsbury, 199 Mass. 542 (85 N E. 848, L. R. A. 1915E, 264, 127 Am. St. R. 513), the same court held that “The legislature has the right, acting under the police power, to prescribe that automobiles shall not pass over certain streets . . in a city or a town.” The Supreme Court of Maine, in Maine v. Mayo, 106 Me. 62 (75 Atl. 295, 26 L. R. A. (N S.) 502, 20 Ann. Cas. 512), held that an ordinance passed under express legislative authority, closing to the use of automobiles certain public streets in a town, and the legislative act authorizing the town to close such streets for such purposes, were not repugnant to any constitutional provision. In Fifth Ave. Coach Co. v. New York, 221 U. S. 468 (31 Sup. Ct. 709, 55 L. ed. 815), the Supreme Court of the United States held that an ordinance of the City of New York, prohibiting advertising vehicles on the streets of the borough of Manhattan, was not unconstitutional as denying equal protection to the owners of such vehicles, either because under the ordinance signs of the owners of business wagons may be displayed thereon, or because another transportation company may display advertising signs on its structure. That court said: “There is a purpose to be achieved as well as a distinction which justifies the classification.”

The streets of a city belong to the public and are primarily for the use of the public in the ordinary way. The ordinary use of the streets, as we have seen above, is for travel; and to this may be added transportation of goods by their owners to and from their residences or places of business. Transportation of travelers or goods by common carriers for hire does not fall within the ordinary way in which streets are used. Their use for the purpose of gain is special and extraordinary, and may be prohibited or conditioned as the legislature or municipality deems proper. The conduct of the business of a carrier of passengers for hire over the streets of a city is a mere privilege, and not a natural or inherent right of the individual conducting such business. Being a privilege, it can be given or withheld; and may be given to members of one class and denied to those of another class. If the State or city determines that the use of the streets for private purposes in the usual and ordinary manner shall be preferred over their use by common carriers for hire, there is nothing in the constitution of the United States or this State which prohibits such action. This principle seems bottomed on sound reasoning, and is well settled by a great majority of the courts of last resort in this country. Packard v. Banton, 264 U. S. 140 (44 Sup. Ct. 257, 68 L. ed. 596); Huston v. Des Moines, 176 Iowa, 455 (156 N. W. 883); Greene v. San Antonio, supra; Hadfield v. Lundin, 98 Wash. 657 (168 Pac. 516); Ex parte Dickey, 76 W. Va. 576 (L. R. A. 1915F, 840, 85 S. E. 781); Lutz v. New Orleans, 235 Fed. 978 (4); Curtrona v. Wilmington (Del. Ch.), 124 Atl. 658, 661; Taylor v. Smith (Va.), 124 S. E. 259; People v. Martin, 203 App. Div. 423 (197 N. Y. Supp. 28); Memphis v. State, 133 Tenn. 83 (179 S. W. 631, L. R. A. 1916B, 1151, Ann. Cas. 1917C, 1056); Melconian v. Grand Rapids, 218 Mich. 397 (188 N. W. 521); People v. Rosenheimer, 209 N. Y. 115, 120 (102 N. E. 530, 46 L. R. A. (N. S.) 977, Ann. Cas. 1915A, 161); Pub. Service Com. v. Booth, 170 App. Div. 590 (156 N. Y. Supp. 140); Lane v. Whitaker, 275 Fed. 476, 480; Huddy on Automobiles (7th ed.), § 765; Cutsinger v. Atlanta, 142 Ga. 555, 556 (83 S. E. 263, L. R. A. 1915B, 1097, Ann. Cas. 19160, 280); Carson v. Woodram, 95 W. Va. 197 (120 S. E. 512); Burgess v. Brockton, 235 Mass. 95 (126 N. E. 456); City of New Orleans v. Calamari, 150 La. 737 (91 So. 172, 22 A. L. R. 106); Babbit on Automobiles (3d ed.), § 211; Desser v. Wichita, 96 Kan. 820 (153 Pac. 1194, L. R. A. 1916D, 246); Star Trans. Co. v. Mason City, 195 Iowa, 930 (6) (192 N. W. 873); McGlothern v. Seattle, 116 Wash. 331 (6) (199 Pac. 457); Peters v. San Antonio (Tex. Civ. App.), 195 S. W. 989; Decker v. Wichita, 109 Kan. 796 (202 Pac. 89). There are some decisions to the contrary. Curry v. Osborne, 76 Fla. 39 (79 So. 293, 6 A. L. R. 108); State v. Dillon, 82 Fla. 276 (89 So. 558, 22 A. L. R. 227); City of Columbia v. Alexander, 125 S. C. 530 (119 S. E. 241, 32 A. L. R. 746); Jitney Bus Asso. v. Wilkes-Barre, 256 Pa. 462 (100 Atl. 954).

The due-process and equal-protection clauses of our Federal and State constitution are applicable to rights alone, and have no reference to mere privileges which may be bestowed or withheld by the State or municipality. The individual can not complain of discrimination in the grant of favors. But it is contended by counsel for plaintiffs that there is a public demand for the service rendered the public by jitney busses. Conceding such demand, the remedy of the public is not judicial but legislative. The public have been deprived of such service by themselves, acting through their representatives, the mayor and general council of the City of Atlanta. The remedy of the public is to appeal to that body for the repeal of this ordinance, if they wish this service restored; and, in the event that their appeal is denied by that body, then they can elect a mayor and general council who will grant them the relief which they seek. The restoration of such service is within the power of the people of Atlanta, if they desire it. The courts are without authority to act in this matter, if we are right in the position that plaintiffs have no right to conduct their business of common carriers in the streets of the city.

By an amendment of the general tax act of 1923 (Acts Ex. Sess. 1923, p. 20), the legislature imposed a tax on jitneys employed in transportation for hire, of $15 per annum for a five passenger car, and $25 per annum for every car of greater seating capacity. Acts 1924, p. 22. Each operator of such jitney is required to register with the ordinary and to pay to the tax-collector the amount of this tax, before he is authorized to operate such vehicle; and the operation thereof without compliance with these conditions is made a penal offense. The plaintiffs registered and paid this tax. They insist that the imposition of this tax and its payment by them conferred upon them the right to operate, their jitneys on the streets of the city, and that the latter can not prohibit their operation. In support of this position counsel for plaintiffs rely upon Miller v. Shropshire, 124 Ga. 829 (53 S. E. 335, 4 Ann. Cas. 574). In that case this court held that where the General Assembly permitted one paying a license tax to engage in the business of buying and selling futures, such person should not be subjected to the penalty imposed by § 3671 of the Code of 1895, (§ 4256 of the present Code). The decision in that case was reviewed and explained in Trammell v. Rome, 142 Ga. 602 (83 S. E. 221). In explanation of their former decision this court said: “The court decided that inasmuch as the General Assembly had recognized the business of dealing in futures as legitimate by reason of the imposition of an occupation tax thereon, it could not be included in the category of gaming made criminal by the statute.” The court expressly declined to extend the doctrine of the former ease so as to support the contention now made by counsel for plaintiffs. On the contrary, the court held that the imposition of a tax upon an occupation subject to a regulation or prohibition under the police power would not prevent the legislature from thereafter authorizing a particular municipality to prohibit the carrying on of such occupation. We do not think that the imposition of such tax and its payment would prevent a municipality from exercising authority previously granted to regulate or prohibit a business so taxed. ' There is no such repugnance between such authority previously conferred by the legislature upon a municipality, and the passage of an act thereafter imposing such tax, as would have the effect of repealing the authority so conferred upon the municipality.

It is insisted that this ordinance offends that portion of paragraph 2 of section 2 of article 4 of the constitution of this State which declares that “The exercise of the police power of the State shall never be abridged, nor so construed as to permit corpo ■ rations to conduct their business in such a manner as to infringe the equal rights of individuals or the general well-being of the State.” The first clause of this provision preserves in full force and vigor the police' power of the State, which has been declared to be “the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government.” District of Columbia v. Brooke, 214 U. S. 138, 140 (29 Sup. Ct. 560, 53 L. ed. 941). The second clause of this provision declares that the police power shall not be so construed as to permit corporations to conduct their business in such a manner as to infringe the equal rights of individuals. The plaintiffs insist that this ordinance was passed for the benefit of the street-railway company, and for the purpose of giving to it a partial monopoly of the business of transporting passengers within the city limits, and that the effect of the ordinance is to infringe the equal rights which they possess with this company of engaging in such business. If we are right in holding that the business of transporting passengers for hire on the streets of the city is not a right but a mere privilege, then this contention is without merit. If the plaintiffs have no right to engage in this business on the streets of the city, then the fact that the street-railway company is permitted to engage therein does not infringe any right of the plaintiffs. The last clause of this provision of the constitution declares that the police power shall not be so construed as to infringe “the general well-being of the State.” Does the inhibition of the operation of jitneys and motor busses within the fire limits of Atlanta, and upon streets upon which street-railway tracks are laid and on which street cars are operated, infringe the general welfare of the State? Is the determination of what is for the general welfare of the State a legislative or judicial question ? The legislative power of the State is vested in the General Assembly. Civil Code (1910), § 6410. Our State constitution declares that “The General Assembly shall have power to make all laws and ordinances consistent with this constitution, and not repugnant to the constitution of the United States, which they shall deem necessary and proper for the welfare of the State.” Civil Code (1910), § 6450. So it would seem that the power to determine what laws will promote the general welfare, when they do not conflict with the constitution of the United States or the constitution of this State, is lodged in the legislature and not in the courts. Otherwise the courts would declare unconstitutional legislative enactments which they do not think conducive to the general welfare, and thus usurp the province of the legislature. Then of what force and effect is this constitutional provision ? It is binding upon the members of the legislature. By their oaths they are sworn to support the constitution of this State, and this binds them to observe the injunction of this provision of the constitution. The courts can only interfere with legislation which conflicts with constitutional provisions. With the wisdom of legislation within constitutional limits the courts have nothing to do. So we can not say that this ordinance violates this provision of the constitution.

We think that the other attacks upon the constitutionality of this ordinance are without merit.

This ordinance is of a dual character. It is prohibitive in part and regulatory in part. Having held that the prohibitive part is valid and not unconstitutional, we now have to decide whether the regulatory features thereof are valid. Undoubtedly municipal ordinances which are intended to regulate lawful occupations and businesses must be reasonable. Otherwise they are void. But this principle is not applicable to the transportation of passengers for hire by the owners of jitneys and busses on the streets of a city. Such operators having no right to transact such business in the streets of a city, and as the cities can wholly prohibit the conduct of such business, if they see fit to grant permission for the conduct of such business on their streets, they can fix the terms and conditions upon which such business can be transacted; and permission to transact such business being a mere privilege or favor, the cities can name any terms and conditions which they may see fit, and the courts can not hold such terms and conditions unreasonable. The power to prohibit entirely such business upon the streets includes the authority to fix conditions upon which such business can be done.

The ruling in the seventh headnote requires no elucidation.

This ordinance has the force and effect of law. Being a law providing for the issuing of permits to the operators'of jitneys and busses upon the terms and conditions therein specified, to this extent making the business of transportation by such vehicles upon the streets of the city lawful, all persons who are willing to comply with such terms and conditions are entitled to permits or licenses to engage in such business. To deny permits to those who are willing to comply with its terms and conditions would be an unconstitutional administration of this ordinance. Such refusal would amount to a denial of the equal protection of the law. If the right of any applicant to a license or permit under said ordinance, who is willing to comply with the terms and conditions thereof, is denied by the city or its officials, such right can be enforced by mandamus.

Applying the above rulings, we affirm the judgment of the trial court refusing to grant an interlocutory injunction.

Judgment affirmed.

All the Justices concur, except Russell, 0. J., dissenting.