14 Del. Ch. 208 | New York Court of Chancery | 1924
This case is to be treated as one where the directors of the Street and Sewer Department have refused to issue a permit in the first instance. The only questions agitated in the cause concern the validity of the resolution adopted by the Board of Directors of the Street and Sewer Department of the City of Wilmington. The complainant assails that resolution upon two grounds. These are:
(1) The resolution in question is beyond the charter power of the City of Wilmington, is wholly unreasonable, and is therefore void. (2) It is unconstitutional as attempting to confer unrestrained and arbitrary power upon the Street and Sewer Department.
First. Is the city possessed with corporate power to legislate upon the subject matter of the resolution? The answer to this question, of course, turns upon the extent of power which the legislative authority of the State has seen fit to confer upon the city, for a municipal corporation has no power except such as is expressly conferred by the Legislature, or is necessarily or fairly implied as incident to or essential for the attainment of the purposes expressly declared. This principle is elementary. It is laid down in innumerable cases and has received recognition in this State in Coyle v. Mclntire, 7 Houst. 44, 30 Atl. 728, 40 Am. St. Rep. 109, and Gray v. Wilmington, 2 Marv. 257, 43 Atl. 94.
Turning to the statutory charter of the City of Wilmington, it appears that the act of 1883 (Laws of Delaware, vol. 17, c. 207) confers on the Council power to enact ordinances for many enumerated purposes and among these is found the power to enact ordinances “generally to prescribe and regulate the use of the highways, streets, squares, lanes and alleys of the city, and to have and exercise control over the same.” Section 31. The act of April 20, 1887 (Laws of Delaware, vol. 18, c. 188), created the Board of Directors of the Street and Sewer Department, upon which was conferred “entire jurisdiction and control within the limits of said city of the streets, squares, lanes, roads or alleys thereof, said jurisdiction and control to extend from building line to building line.” Section 1. This act further provides that the said board shall “have the same rights and powers, and be vested with the same authority over the said streets, squares, lanes, roads,” etc., “ * * * as are now held and exercised by ‘the Council’ of the * * * city * * * under the charter, laws, ordinances and regulations appertaining to or in any manner made for the government of said city.” Id.
In referring to the act just mentioned, the Supreme Court of this State in Bullock’s Adm’r. v. Wilmington City Railway, 5 Pennewill, 209, 64 Atl. 242, said:
“The purpose and object of the Street and Sewer Act was manifestly to take the whole subject-matter of the construction, and also the regulation of the use of the streets,” etc., “from‘the Council,’ * * * and at the same*213 time to give the street and sewer commissioners [directors] the power to see that the streets of Wilmington should be so constructed and used, so far as it lay within the power of the municipality, in a manner which would make them both fit and safe for the uses of a public highway.”
It appears from the foregoing, therefore, that the legislative authority to the Street and Sewer Department respecting the streets of the city is generally to prescribe and regulate their use and to exercise entire jurisdiction and control over the same. If the resolution in question has any warrant in legislative grant, it must rest for its support on the statutory provisions just adverted to.
The complainant contends that the language referred to is not sufficiently broad to justify the passage of a resolution such as the one complained against which, he argues, must be regarded solely as undertaking to regulate the business of operating motor busses within the city limits. It is argued that the charter of Wilmington confers authority on the Council to regulate certain named business, among which the operation of bus vehicles is not mentioned, and that such being the case the business of operating busses must be regarded as never having been intended by the Legislature to be embraced within the regulatory powers of the municipality, on the principle that where an enumeration of businesses that may be regulated is contained in the statute, the enumeration is to be taken as exclusive. Dillon, Municipal Corporations, vol. 2, § 667.
If this principle is conceded, it can be of no avail here. This is for the reason that the right to regulate the use of the'streets and the right to exercise entire jurisdiction and control over the same is among the enumerated powers of the municipality through its proper agencies. As I view the point now under consideration, it is not to be regarded as a question of whether a specific power is to be recognized when not precisely designated in an enumerated list; it is rather a question of whether a clearly granted power has been exercised in an unwarranted manner. In other words, is the attempt to regulate the business of operating busses fairly to be implied as incident to the power to regulate the use of the streets and to exercise entire control and jurisdiction over the same? If it be, then there is no occasion to resort to the principle
Very many cases have been cited in the course of the argument. Generally speaking, they are of little assistance in considering the point now under discussion, because they arise under legislative charters whose language is quite dissimiliar to the language of the Wilmington charter, and in many of them express legislative power has been conveyed to the municipality to deal with the subject of motor bus transportation.
The right conveyed to the City of Wilmington to exercise entire jurisdiction and control over the streets and generally to regulate the use of the same is couched in language of very broad import. In St. Louis v. Western Union Telegraph Co., 149 U. S. 465, 13 Sup. Ct. 990, 37 L. Ed. 810, Mr. Justice Brewer speaking of the power given to a city to regulate the use of streets said:
“The word ‘regulate’ is one of broad import. It is the word used in the Federal Constitution to define the power of Congress over foreign and interstate commerce, and he who reads the many opinions of this court will perceive how broad and comprehensive it has been held to be. If the city gives a right to the use of the streets or public grounds, as it did by Ordinance No. 11604, it simply regulates the use when it prescribes the terms and conditions upon which they shall be used. If it should see fit to construct an expensive boulevard in the city, and then limit the use to vehicles of a certain kind or exact a toll from all who use it, would that be other than a regulation of the use?”
As stated by the Supreme Court of this State in Bullock’s Adm’r. v. Wilmington City Railway Co., supra, it is a power designed to secure to the inhabitants of the city protection against such a manner of using the streets as would render them unfit and unsafe as public highways. That motor busses may be used in such manner would seem to be clear. The evidence shows that the busses in question were large vehicles having a seating capacity of eighteen persons and that on one occasion, according to the inspector, as many as thirty passengers were observed therein, some of them crowded about the driver in such way as to interfere with his vision. At present nineteen busses are operating in the city. Considering their size, the amount of traffic on the city streets, the
No man has the right to use the public streets as a place wherein to carry on his private business. The streets are not constructed and maintained by the public for the purpose of supplying sites and facilities for carrying on private occupations. If it were otherwise, vendors of goods might with justice protest against all attempts to exclude them from the streets in the prosecution of their various businesses, notwithstanding the rights of the traveling public were being interfered with and traffic thereby obstructed. This complainant in the operation of his busses was engaged in using the streets of the city for the prosecution of a private business conducted thereon. So far as I have been able to discover the authorities are overwhelming to the effect that he has no inherent, no constitutional, right to carry on such a business. Houston v. Des Moines, 176 Iowa, 455, 156 N. W. 883; Greene v. San Antonio, (Tex. Civ. App.) 178 5. W. 6; Schoenfeld v. City of Seattle, (D. C.) 265 Fed. 726; Cummins, et al., v. Jones, 79 Or. 276, 155 Pac. 171; Frick v. City of Gary, (Ind.) 135 N. E. 346; Dent v. Oregon City, 106 Or. 122, 211 Pac. 909; Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781, L. R. A. 1915F, 840; Ex parte Parr, 82 Tex. Cr. R. 525, 200 S. W. 404; Harris v. Atlantic City, 73 N. J. Law, 251, 62 Atl. 995.
If this be so, I am unable to escape the conclusion that the power to regulate the use and exercise entire jurisdiction and control over the streets carries with it as a necessary implication the power to completely interdict a use which the streets were never intended to serve. The power existing to prohibit absolutely, and there being no requirement that it shall be exercised, it follows as a corollary that power also exists to permit the use. When this is said, terms and conditions upon which permission will be granted may be imposed, and those terms and conditions may very reason
In Greene v. San Antonio, supra, it appears that the authority of the city to regulate the jitney business was based on a grant of authority from the Legislature to exercise “exclusive control and power” over the streets. In sustaining the right of the city to pass the regulating ordinance there in question the court said:
“When the charter gave the exclusive control of the streets to the city of San Antonio, it necessarily gave it the authority to require reasonable conditions upon which the use of the streets should be granted. By the grant of exclusive control of the streets, there was necessarily given, by implication, power to require of any one who desired to operate a dangerous agency upon the streets the giving of some guaranty for the protection of the lives and limbs of citizens. If the city has the right to the performance of certain conditions before a license to use the streets would be given, it could require any reasonable condition.”
On a motion for a rehearing the court in that case further said:
“Appellant desired to use the streets for private purposes of gain, and the city has the absolute right to prohibit the use of the streets for his private business, and in case it gave permission for such use had the right to compel the payment of a license fee.”
In West, et al., v. City of Asbury Park, 89 N. J. Law, 402, 99 Atl. 190, the validity of an ordinance regulating the operation of auto busses, etc., was questioned on the ground of a lack of legislative authority to the city. In.answer to this contention the court said:
“We think all the provisions [of the ordinance] we have recited are well within the express powers given to the council or within the powers necessarily inferred from the general clause. That like powers may be implied from the general control of streets has long been settled. We need refer only to the leading case of Commonwealth v. Stodder, 2 Cush. 562.”
I am referred by the solicitors for the complainant to numerous cases which they cite in support of their contention under the
Thus far we have arrived at the conclusion that the City of Wilmington, by virtue of its power generally to regulate the use of its streets and to exercise entire jurisdiction and control over the same, has the power to regulate or even prohibit the use of the streets by operators of motor busses. But if this be so, yet it is urged by the complainant that this power can extend only to the limits of the city, it cannot reach beyond the city boundaries and lay its hands on busses which are operated in an interurban traffic, and that inasmuch as the bus line of the complainant is engaged in such a traffic it is therefore not within the power of the city to touch it.
In this connection complainant cites Argenta v. Keath, 130 Ark. 354, 197 5. W. 686, L. R. A. 1918B, 888. In the report of that case in L. R. A. 1918B, 888, will be found an annotation of cases dealing with the power of cities over interurban transportation by vehicles used for hire. The Argenta Case is however clearly distinguishable from the instant one. It holds that where the
Furthermore, the Argenta Case is to be regarded as a case dealing with the subject of licenses imposed upon the right to transact business, which is not the case here. There'is no attempt made by the ordinances of Wilmington to impose a license tax on a business done partly in Wilmington and partly outside. The question therefore of whether a city, under a power to exact license fees and taxes from those doing business within the city, can so use its power as to give it an extra-territorial application is not here involved. The distinction between imposing a license or tax upon a transportation business conducted partly, if not almost entirely, outside the- city limits and imposing conditions for the privilege of using the city streets in the course of such business is very clear. The result reached by the court in Commonwealth v. Stodder, 2 Cush. 562, 48 Am. Dec. 679, is a practical recognition of this distinction, and the cases of In re Smith, 33 Cal. 161, 164 Pac. 618, Carterville v. Blystone, 160 Mo. App. 191,141S. W. 701, and Joplin, etc., Co. v. Carterville, 160 Mo. App. 186, 141 S. W. 705, expressly recognize it.
Dent v. Orgeon City, supra, is another case cited by the complainant involving interurban transportation. In that case the city undertook by ordinance to prohibit any interurban public utility vehicle to operate over the streets without a franchise granted by ordinance. The court held the ordinance void because it appeared manifest that the design of the ordinance was to impose the requirement of permission to operate over its streets
The bus line operated by the complainant has its termini in Wilmington and New Castle. His busses come up into the city, stop to take on and discharge passengers, and make free use of that portion of the city streets necessary for him in conducting the Wilmington end of his business. His is not the case of one who merely passes through a city which is intermediate between two removed termini. I am cited to no authority which holds that the regulation of a business of the kind he conducts on the streets of Wilmington is exempt from the city’s regulatory power on the ground of its interurban nature.
The point first made by the complainant is not only that the resolution in question is beyond the charter power of Wilmington and therefore void (a contention which for the foregoing reasons I am unable to accept), but also that it is void because wholly unreasonable. Inasmuch as the only particular in which the resolution is said to be" unreasonable is in this, viz., that the right to issue permits is left to the unrestrained and arbitrary will of the Street and Sewer Department, and as this aspect of the case is embraced in the second and last contention, it will be disposed of under that head which will now be considered.
Second. Is the resolution unconstitutional as attempting to confer unrestrained and arbitrary power upon the directors of the Street and Sewer Department? A reading of the resolution discloses that the matter of issuing permits is left in the discretion of the directors. No rules are laid down upon compliance with which the directors are bound to issue permits. Is the resolution invalid for that reason?
Before answering this question, it is proper to observe that many cases which at first blush might appear to assist the complainant in this connection are upon further consideration in no wise applicable. As before observed, the conducting of a busines upon the streets of a city is not a thing to which any one can assert
In Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, the decision was that the right of a person to use his building for the purpose of carrying on a laundry business in the city of San Francisco could not be made to depend on the unrestrained will of the city’s board of supervisors. The laundry business being of such character as calls for no special treatment similar to that, for instance, which the business of selling intoxicating liquors renders necessary, it was held that regulation was the limit of legitimate power and that such regulation must be equal and impartial in its application. Right to conduct the business could not be left to be granted ex gratia. Though Fisher v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 Ed. 1018, appears to be in conflict with at least the language of Yick Wo v. Hopkins, yet the doctrine of the latter case is sustained by an overwhelming weight of authority both in the Federal and State courts. Many of the cases in, the states are cited in a note to Section 118 of the Article on Municipal Corporations in 19 R. C. L. It is unnecessary to refer to these cases in detail. The doctrine referred to is applied to all businesses which are legitimate in character and of such nature as to indicate that the right to pursue them is inherent in the individual. Ac
In the instant case, however, no such situation is presented. This is for the reason, as already pointed out, that no person has any proprietary interest in the city streets. He has no inherent right to make of the streets a place for the transaction of his private business. Accordingly the case of Vick Wo v. Hopkins, supra, and all cases following its doctrine have no application here. Nor have those cases any application which deny to a city the power to commit to the unrestrained will of officials the right of private citizens to parade over the streets. In re Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310; State ex rel. Garrabad v. Dering, 84 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948; Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719, 2 L. R. A. 110, 100 Am. St. Rep. 17. Whether cases of this class be correct in principle or not, I need not pause to consider. Conceding their correctness, they are inapplicable here for
This case comes down to the proposition of whether it is competent for the City of Wilmington to intrust to an unregulated discretion the right of an individual to use its streets as a place for the carrying on of his private business. After giving to the question the fullest consideration I can, I am of the opinion that it is. Whenever the city authorities have power to prohibit a thing, they may as a condition for its enjoyment require that the consent of its properly designated officials shall first be obtained. This is the rationale of the decision in Quincy v. Kennard, et al., 151 Mass. 563, 24 N. E. 860, and is the principle that underlies the class of cases within which the licensing of whiskey saloons falls. In the Quincy-Kennard Case the suit was for an injunction to restrain the defendant from exercising the employment of keeping swine within the limits of the town without first having obtained a permit from the board of health. To the objection that the prohibition in the order passed by the board of health was qualified by the words “without a permit in writing first obtained from the board of health,” the court replied:
“We are at a loss to see how it affects the validity of the order, that the board expressly reserved to themselves a power to do what they could have done even if the prohibition had been absolute, or how the defendants are put in a worse position by the order contemplating the possibility that the board of health may grant them a written permit, than if it had excluded that possibility.” -
“Furthermore,” said the same court in Commonwealth v. Parks, 155 Mass. 531, 30 N. E. 174, “what the municipal body may forbid altogether, it may forbid conditionally, unless its written permission is obtained beforehand. We see nothing in Newton v. Belger, 143 Mass. 598, or in Yick Wo v. Hopkins, 118 U. S. 356, and Baltimore v. Radecke, 49 Md. 217, to make us doubt the correctness of the decision in Quincy v. Kennard, 151 Mass. 563.”
In a later Massachusetts case, Commonwealth v. Davis, 162 Mass. 510, 39 N. E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389, affirmed in Davis v. Mass., 167 U. S. 43, an appeal was taken from a conviction for violating an ordinance which forbade the making
“When no proprietary right interferes, the Legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain purposes. * * * It is settled also that the prohibition in such an ordinance, which would be binding if absolute, is not made invalid by the fact that it may be removed in a particular case by a license from a city officer, or a less numerous body than the one which enacts the prohibition. Commonwealth v. Ellis, 158 Mass. 555, 557.”
In the case of Commonwealth v. Ellis, 158 Mass. 555, 33 N. E. 651, cited in the foregoing excerpt, a conviction was sustained for violation of an ordinance forbidding any person except in accordance with a permit from the superintendent of streets from selling any goods or articles in any street of Boston. The court held .that the city council had power to forbid selling on the streets, and—
“This being so, the ordinance is none the worse for the exception in case of a permit from the superintendent of streets” (citing inter alla Quincy v. Kennard, supra).
The Court of Criminal Appeals of Texas has held in Ex parte Sullivan, 77 Tex. Cr. R. 72, 178 S. W. 537, and Ex parte Bogle, 7 Tex. Cr. R. 1, 179 S. W. 1193, that the discretionary right to grant or refuse a license to operate a jitney does not invalidate an ordinance prohibiting the operation of jitneys without a license.
If the conclusion heretofore reached, viz., that the citizen has no inherent or proprietary right to use the streets for the prosecution of his private business is correct, then the fact that the municipality chooses to provide for exceptions to a general prohibition in favor of those to whom it grants consent, is not, under the principle of the foregoing cases, open to objection. It is true that such a situation is exposed to the danger of favoritism and prejudice. The evidence in this case, however, fails to indicate that these factors have operated to the prejudice of the complainant. He was permitted to run his busses for nearly two years before the consent was withheld. The board justifies its refusal to issue new permits by the fact that the complainant notwithstanding repeated warnings refused or neglected to observe the regula
It would hardly be reasonable to hold that granting the right to establish a system of permits, one must be granted to every applicant regardless of his fitness. The resolution under which the complainant obtained his 1923 permits provided for a revocation of the same in case of a conviction in the Municipal Court for the offense of violating any of the regulation. In Quigg v. State, 84 Fla. 164, 93 South. 139, where it was held by a divided court that under the language of the charter of the city of Miami there was no power in the municipality to totally forbid the operation of jitneys on certain named streets, the majority opinion concedes that it would be an allowable regulation to exclude from the use of the streets jitney drivers who had violated permissible regulations. If so, ought this court in the face of the complainant’s
The complainant has cited several cases which he relies upon as sustaining his objection to the resolution as being invalid because of its arbitrary and discriminatory provision with respect to the issuance of permits. A review of these cases will not be undertaken. It will suffice to say with respect to them that some are distinguishable on the facts, and in others the pertinent language of the opinion is obiter or in the reasoning of the court too little weight is accorded the principle that the right to transact private business on the streets is permissive and not inherent in its nature.
The bill must be dismissed with costs on the complainant, and a decree will be entered accordingly.
Note. — An appeal to the Supreme Court was taken by the complainant, and thereafter a motion was made in this court to stay an order for dissolution of the preliminary injunction pending determination of the appeal. At the hearing of this motion a question was raised as to the proper judicial officer to approve the appeal bond. The opinion of the Chancellor in disposing of the motion and approval of the appeal bond is reported post p. 262 and the opinion of the Supreme Court affirming the decree of the Chancellor is reported post. p. 434.