149 N.E. 639 | Ind. | 1925
The common council of the city of Muncie, on December 5, 1921, adopted an ordinance, entitled, "An ordinance to regulate and license jitney busses, to provide for the revocation of licenses, and to provide penalties." This suit was brought by the appellant, a jitney bus operator, against the city of Muncie, its city attorney and chief of police, to enjoin them from attempting to enforce and from enforcing section 9 and subdivision 7 of section 3 of said ordinance. Said subdivision of section 3 is only incidental to section 9. The complaint alleged that the above mentioned sections were void and unconstitutional. The court adjudged that the ordinance, including section 9, was valid.
Appellant's assignment of errors is as follows: That the court erred in each of its conclusions of law numbered 1, 2, 3, 4 and 5 upon its special finding of facts. That the court erred in overruling appellant's motion for a new trial. And the court erred in overruling appellant's verified motion for a continuance of the temporary injunction pending appeal.
Said section 9 of the ordinance is as follows: "No *32 person, firm or corporation shall drive, run or operate any Jitney Bus upon or along any part of any street, avenue or other highway in the city of Muncie upon which there is located a street railway track or tracks upon or over which street cars are regularly operated, and no license shall be issued permitting the driving, running or operating of any Jitney Bus upon or along such part of any street, avenue or other highway; provided, that nothing herein contained shall be construed as prohibiting any jitney bus from crossing any such street, avenue or highway."
Subdivision 7 of section 3 which provides what should be shown in an application for jitney license makes it necessary to show the following: "A description of the route or routes in said city to be traversed by said jitney bus, which route or routes shall not be in conflict with Section 9 of this ordinance."
The ordinance, by its other sections, fully regulates the operation of jitney busses on the streets of the city. No objections are raised to the other parts of the ordinance.
In Section 2 of the ordinance, a jitney bus is thus defined: "For the purpose of this ordinance, the term `jitney bus' shall be taken to mean any self-propelled vehicle, other than a street car, interurban car, railroad car or railroad locomotive, traversing a public street, avenue or other highway between definite or substantially fixed points or terminals, or along a definite or substantially fixed route or routes, and carrying passengers for hire, or furnishing passenger transportation for hire, along or over public streets, avenues or other highways from, to or between definite or substantially fixed locations or districts. Provided, however, such term shall not be taken to mean any such vehicle known as `taxicab,' operated only upon call under a special contract for hire, rented from a public or private garage, *33 and the destination or route of which is under the direction of a passenger transported therein or to any such vehicle operated by a hotel company or hotel owner in the conveyance of guests between such hotel and a railroad or interurban station."
It is contended by appellant that section 9 and subdivision 7 of section 3 of the ordinance are void for the reason that the city did not have power to enact them. Municipal 1, 2. corporations possess such powers as are expressly granted by the legislature, or necessarily implied or incidental thereto, and those indispensable to the declared objects and purposes of incorporation and to the continued corporate existence. Pittsburgh, etc., R. Co. v. Town of CrownPoint (1896),
It cannot be controverted that jitney busses are common carriers. And municipal ordinances regulating the "jitney" traffic as a class apart from other common carriers have 3. been enacted in many of the principal cities of many states. In the absence of express statutory authority in the matter of municipal regulation of "jitneys," municipal ordinances in regard to same have generally been upheld when based on general statutes vesting in cities the right to control and regulate the use of their streets. Pond, Public Utilities (3d ed.) § 766. In Frick v. City of Gary (1922),
The appellant claims that the use of the streets of a city is a right and not a privilege, and because of that right he cannot be prevented from operating his jitney bus on the streets of 4. Muncie as provided in said section 9. The public streets are for the use of the public and may be used for general, ordinary use. But the use of a street to carry on a private business is a mere privilege and not a natural right. Frick v.City of Gary, supra; Greene v. City of San Antonio (1915), 178 S.W. (Tex. Civ. App.) 6; Peters v. City of San Antonio,supra; Ex parte Dickey, supra; Desser v. City of Wichita,supra; Hadfield v. Lundin (1917),
The operation of "jitney busses" on the public streets as a private business, being a matter of privilege and not of right, can be permitted by the city upon such terms as it may 5-7. prescribe or may be prohibited. Pond, Public Utilities (3d ed.) § 753; Huddy, Automobiles (7th ed.) §§ 165, 166;Schoenfeld v. City of Seattle, supra; Peters v. City of SanAntonio, supra; Hadfield v. Lundin, supra. In 32 A.L.R. 752, it is said: "Under the well-settled rule that a municipality, having the power to regulate the use of its streets, may pass any reasonable ordinance within its delegated powers governing automobile traffic on the streets, it has been generally held that a municipality has the right to pass an ordinance prohibiting or limiting the use of certain streets by motor vehicles operated for hire." We hold that the city of Muncie, under the exclusive power granted to cities by the legislature to control and care for their streets, and under the general power granted them to regulate traffic, had the right to enact the parts of the ordinance to which objection has been made. Its power of such control was not restricted to streets which had been improved. And the section of the general automobile law, heretofore mentioned, did not prevent such legislation.
Appellant says that said section 9 is in violation of Art. 1, § 21 of the Constitution of Indiana which provides that no man's property shall be taken by law without just 8-13. compensation; of Art. 1, § 23 of said Constitution which provides that the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the *37
same terms shall not equally belong to all citizens; and of the Fourteenth Amendment to the Constitution of the United States. InFrick v. City of Gary, supra, this court held that the ordinance there in question was not contrary to the parts of the state Constitution above named. As the appellant did not have any natural right to carry on his business on the streets, no property has been taken from him by the ordinance without just compensation. Appellant says that there is an unjust discrimination made by the ordinance between routed "jitneys" on the one hand and roving "jitneys," interurban "jitneys," taxicabs and other carriers of passengers on the other. "Jitneys" operating over particular routes properly form a class distinct from taxicabs and other service cars operating without any definite routes, for the purpose of legislation. Berry, The Law of Automobiles (4th ed.) § 1675; Allen v. City of Bellingham
(1917),
There is no merit in the contention that the streets are dedicated to the public, and for that reason the said sections of the ordinance are void. They are not dedicated to be used 14. for a private business for gain or profit, to the detriment of the general public.
The court did not err in stating any of the five conclusions of law upon its special finding of facts. The sixth and seventh assignments of error are not supported by argument or the 15. citations of authorities, and same will be considered as waived. The cross-errors assigned by appellees are well taken. The three demurrers to the complaint, overruled by a special judge when the cause was pending in the Delaware Circuit Court, should have been sustained. However, the correct result was reached in the trial of the cause.
The judgment is affirmed. *40