76 W. Va. 576 | W. Va. | 1915
Charging illegality of an ordinance for violation of which he is held in restraint of his liberty, the relator seeks his discharge on a writ of habeas corpus.
The ordinance in question is one made by the commissioners of the city of Huntington, for the regulation, licensing and taxing of certain vehicles commonly known as “Jitney Busses,” designated in the ordinance as motor busses and therein defined as vehicles “propelled by either gasoline or electricity, operated over any of the streets in the city of Pluntington, for the purpose of carrying passengers for hire, at a rate of fare of fifteen cents or less for each passenger, and which receives and discharges passengers along the route traversed by such vehicles.” It makes it unlawful for any person, firm or corporation to use or occupy any public street
As regards legislative power or control, the business or interest regulated by the ordinance is clearly distinguishable from vocations the pursuit of which does not involve the use of public property. The right of a citizen to pursue any of the ordinary vocations, on his own property and with his own means, can neither be denied nor unduly abridged by the legislature; for the preservation of such right is the principal purpose of the constitution itself. In such cases, the limit of legislative power is regulation, and that power must be cautiously and sparingly exercised, unless the business is of such character as places it within the category of social and , economic evils, such as gaming, the liquor traffic and numerous others. To this list may be added such useful occupations as may, under certain circumstances, become public or private
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
Plainly, therefore, the result of this inquiry depends not upon the power of the legislature over the subject matter of relator’s alleged right, but upon the action of the legislature respecting the same. That he has no natural or indefeasible right to maintain upon a public highway a vehicle for the carriage of passengers for hire is unquestionable. Though, in point of theory, special rights in highways are vested in individuals only by legislative grant, it is matter of common knowledge and judicial cognizance that, without express legislative permission to do so, citizens use them in special ways-
A similar method of dealing with them in other states is disclosed by the statutes and decisions thereof. Everywhere, such enterprises are regarded and treated as of rightful existence and subjected to regulations and control in the same manner as ordinary vocations not in any sense involving the use of public property. Generally the authority and power of regulation in cities and towns is treated as having been delegated to them by the legislature. Frommer v. City of Richmond, 31 Gratt. 646. In Commonwealth v. Dodder, 2 Cushing 562, the authority of the mayor and aldermen of .the city of Boston to require licenses from citizens of other towns and cities for the maintenance of hackney coaches and omnibuses, for the carrying of passengers from neighboring towns into the city and out of the city to such neighboring towns, without legislative authority therefor, was denied, as was also their authority to impose any tax upon such carriers.
However, it may be regarded as having been acquired, the right claimed by the relator, in the absence of legislative prohibition, seems to be considered in all jurisdiction, as one common to all citizens who care to exercise it. Public highways are treated as navigable waters, in the sense that any citizen, desiring to use them as a common carrier thereon, may acquire the necessary equipment, select the portion of the highway or river he desires to use and enter upon the business in common with all other persons engaged in it. It is equally clear, however, that the legislature has full and complete power for drastic regulation of such business and to
It would be inconsistent with this theory, to say the legis lature, in committing to county courts, villages, towns and cities, the control of such portions of the highways as happen to be within their limits, intended to make them absolute owners and proprietors of the same, with power to do as they please with them. Such municipalities own such portions of the highways for such public uses and purposes as the legislature by express declaration or implication recognizes as lawful. They hold them as agencies of the state for such public uses and, therefore, they can limit, restrict or regulate such uses in such manner and to such extent only as the legislature has authorized.- Por the promotion of local comfort, convenience and prosperity, the legislature has empowered them
In the light of these general principles and conclusions, the provisions of the charter of the city of Huntington, applicable to the subject, must be read and interpreted. The most comprehensive one of these, and the only one it is deemed necessary to consider, is found in sec. 68 of ch. 3 of the Acts, 1909. After having authorized the commissioners to require a city license for anything for which a state license is required and to impose a tax thereon for the use in the city, it proceeds as follows: “And the board of commissioners shall have the power to grant, refuse or revoke any such license of owners or keepers of hotels, carts or wagons, drays, and every other description of wheeled carriages kept or used for hire in said city, and to levy and collect tax thereon and to subject the same to.such regulations as the interest and convenience of the inhabitants of said city, in the opinion of the board of commissioners, may require.”
Power in the city to subject all kinds of wheeled carriages kept for hire to such regulations as the interest and convenience of the inhabitants thereof may require, in the opinion of the board of commissioners, and to refuse them license is as broad as the power of the legislature itself over them. They with the owners and keepers of hotels, are segregated from all other subjects of license and taxation, by the terms of the statute, and put into a separate and distinct class over which the city is accorded full and complete power. In all other cases, it is authorized merely to require licenses and impose taxes and nothing is said about regulation. In these, there is an explicit grant of power to grant, refuse or revoke licenses and to regulate in a manner and to an extent left in the discretion of the commissioners. It is wholly unlike the
Por the grant of such power, reason is found in the nature of the subjects. Whether a hotel or tavern should be permitted in a given place depends upon its character and how it is conducted, for the privilege is peculiarly liable to abuse, 'and the comfort of the traveling public demands the maintenance of suitable accommodations, just as in the case of a ferry or other provision for public necessities and conveniences. Conveyances on the streets, for the use of the general, public, are of the same character, and, in addition to this, cabs, hackney coaches, omnibuses, taxi-cabs and hacks, when unnecessarily numerous, interfere with ordinary traffic and travel and obstruct them. Prescription of routes or places of business for them is a fair, reasonable and efficacious means of preventing such results. Nor is it unreasonable to require them to maintain the service during prescribed hours. They are engaged in a public service which the legislature may always regulate. Nor is there any constitutional inhibition of legislative requirement of indemnity from persons so engaged, against injury to persons or property. State ex rel. Case v. Howell 147 Pac. Rep. 1159; City of Portland v. Western Union Telegraph Co., 146 Pac. Rep. 148; Springfield Water Co. v. Darby, 199 Pa. St. 400.
While this ordinance is said to be discriminatory in favor of omnibuses, taxi-cabs, hacks and other vehicles kept for hire, not of the class described in the ordinance, and against that class, there is no suggestion in the petition for the writ or in the argument, of the existence of “Jitney Busses” in the city not included by the description. The price charged is made an element of the description and, if there were “Jitney Busses” charging more than fifteen cents, this.might operate as' a classification with reference to the price charged for service and render the ordinance unreasonable. In the opinion of a majority of the members of this court, it would. But there is no pretense of the existence of such vehicles and, if there are such, we have no judicial knowledge of them. The popular name of the vehicle ’signifies the contrary. A
The ordinance is not obnoxious to the provisions of ch. 43B of the Code, of 1913, regulating motor vehicles generally, nor within the scope thereof, except in so far as it imposes the duty of state regulation and a state tax and prescribes the law of the road. These vehicles are more than mere automobiles incidentally used by the citizens for purposes of business and pleasure. They include an additional element; common carriage, bringing them within the municipal power of control, just as horse-drawn carriages and other vehicles fall within it, by reason of the peculiar uses made of them.
Our conclusion is that the ordinance is free from constitutional and other defects and, therfore, .valid. It may be burdensome and, in the opinion of many people, oppressive and unwise, just as many other valid laws are regarded.' But the question submitted here is one of municipal power, not policy. With the latter the courts have nothing to do, nor can they overthrow laws, ordinances or regulations made bjr competent authority, merely because, in the opinion of the judges, they might or should have been made more liberal or less rigorous. Spedden v. Board of Education, 74 W. Va. 181, 81 S. E. 724; Charleston v. Littlepage, 73 W. Va. 156.
For the reasons stated, the discharge prayed for is refused and the relator remanded to the custody of the authorities of the city of Huntington.
Writ refused.