192 Ind. 76 | Ind. | 1922
Appellant was the owner and the driver of a “jitney bus” in the city of Gary at the time a city ordinance was enacted which forbade the drivers of such vehicles to receive and discharge passengers on certain of the streets of that city. The only -question presented for decision is the validity of a section of that ordinance, which, as amended, forbids said acts under penalty of a fine not exceeding $300. The amended section reads (in part) as follows: “It shall be unlawful for any person, firm or corporation to operate any vehicle, except street cars and taxicabs, engaged in the carriage of passengers for hire, to stop to take on or discharge passengers upon Broadway, Washington street, Massachusetts street, Connecticut street or Adams street, public highways in the city of Gary,” etc.
Appellant denies the validity of this section of the ordinance because, as he insists, (1) The legislature has not conferred upon the city council statutory authority to enact it, and because, he says (2) the ordinance and such a statute, if there be one, are in violation of Art. 1, §§21, 23, Constitution of Indiana, which forbids the taking of private property without compensation, or the granting of privileges and immunities to any citizen or class of citizens which, upon the same terms, shall not belong to all citizens.
The complaint, to which a demurrer was sustained, asked for an injunction forbidding the city to enforce
The contention that this ordinance violates the Constitution of Indiana is based in the first place upon the fact that it excepts street cars and taxicabs from the “vehicles engaged in the carriage of passengers for hire” which are forbidden “to stop to take on or discharge passengers” at the places named. The difference between a street car operated on a railway track, under a franchise pursuant to which a large permanent investment has been made, and a Ford touring car used as a jitney bus, is obvious, and counsel for the appellant admit that they properly may be put in different classes. But it is urged that a taxicab may be and often is a Ford touring car, the same as appellant’s “jitney bus,” and that denying to appellant in the operation of his car the right, to receive and discharge
One who operates a vehicle over a fixed route along a city street, and, to the capacity of the vehicle carries, for hire any persons who may hail him from the sidewalk and ask for passage, is a common carrier of passengers. Desser v. City of Wichita (1915), 96 Kans. 820, 153 Pac. 1194, L. R. A. 1916D 246; Peters v. City of San Antonio (1917), (Tex. Civ. App.) 195 S. W. 989; Schott v. Weiss (1918), 92 N. J. Law 494, 105 Atl. 192.
A common carrier desiring to carry passengers on the highway might establish stations for receiving and discharging passengers on ground privately owned, and drive his cars between stations upon the streets and highways, notwithstanding this ordinance. But not having done so, appellant has no inherent right to select a street or streets for use for purposes of loading and unloading passengers, and forbidding him to use certain streets for that purpose does not invade his constitutional rights. Ex parte Dickey (1915), 76 W. Va. 576, 85 S. E. 781, L. R. A. 1915F 840 ; Hadfield v. Lundin (1917), 98 Wash. 657, 168 Pac. 516, L. R. A. 1918B 909, Ann. Cas. 1918C 942; Gill v. City of Dallas (1919), (Tex. Civ. App.) 209 S. W. 209; Peters v. City of San Antonio, supra; Lane v. Whitaker (1921), (D. C.) 275 Fed. 476. The ordinance is not in conflict with the constitution.
“(31) To prevent immoderate and careless riding or driving. To regulate the use of streets and alleys by vehicles, and to designate the kind of conveyances and vehicles that may not be used on certain named streets that have been improved, and designate hours for the use of such streets by certain specified classes of vehicles. To prevent the encumbering of streets * * * with * * * vehicles, horses or any substance or material whatever interfering with the free use of the same,” etc.
“38. To license, tax and regulate public hackmen, draymen, omnibus drivers, carters, cabmen, porters, ex-pressmen, bill posters and all other persons pursuing like occupations for pay or hire, and to prescribe their compensation, and revoke any license for violation of such ordinance.”
“53. To carry out the objects of the corporation not hereinbefore particularly specified.” §8655 Burns 1914, Acts 19.05 p. 219, §53. And the statute which limits the power of the city over automobiles expressly excepts “motor driven commercial vehicles” from its operation, and contains a proviso that nothing therein contained shall be construed as affecting the power of a municipal corporation to enforce ordinances, rules and regulations affecting “motor driven commercial vehicles-which are
We think the power to enact and enforce such an.ordinance, whenever necessary in the opinion of the common council, was clearly conferred by the statutes above quoted. §§8964, 8655 Burns 1914, supra; Peters v. City of San Antonio, supra. We cite below additional deci* sions of different courts upholding the power of cities to enact and enforce the ordinances therein under consideration for the control of “jitney busses” in the use of streets. Allan v. Bellingham, supra; Desser v. City of Wichita, supra; In re Cardinal, supra; Thielke v. Albee, supra; Ex parte Parr (1918), 82 Tex. Crim. App. 525, 200 S. W. 404; Gill v. City of Dallas, supra; Schoenfeld v. City of Seattle (1920), 265 Fed. 726, 731; Ex parte Bogle (1915), 78 Tex. Crim. App. 1, 179 S. W. 1193; Irwin v. Atlantic City (1917), 90 N. J. Law 99, 100 Atl. 565.
Appellant relies upon the case of Curry v. Osborn (1918), 76 Fla. 39, 79 So. 294. In that case the city had no express statutory authority in the matter, but
Those, cases are clearly distinguishable from the one at bar, and we do not consider the question whether or not they were correctly decided.
The judgment is affirmed.