43 S.E.2d 247 | Ga. | 1947
1. The transportation of passengers for hire in a taxicab upon the streets of a city is not an inherent right, but a privilege which the municipality, in the exercise of its discretion, may grant or refuse. Schlesinger v. Atlanta,
2. Where a city stipulates by ordinance, as here, the "conditions, regulations and restrictions" for the operation of a taxicab within the city, naming the requirements that must be met, and providing that it "shall be unlawful to operate or cause to be operated in said city any taxicabs unless a permit for the operation thereof shall have been first issued by the city council," the city by such ordinance, instead of providing for the issuance of a permit, subject to the discretion of the governing authorities to be exercised at the time of the consideration of the application for a permit, thereby exercises and fixes its discretion as to licensing such transportation by making lawful the operation of a taxicab for hire upon the streets of the city by all persons who comply with the requirements of the ordinance, and entitles them to engage in such business. A denial of such a permit would amount to a denial of the equal protection of the law, and an applicant for such a permit can under the circumstances enforce his right thereto by mandamus. Schlesinger v. Atlanta, supra.
3. The petition — alleging compliance with all the requirements of the ordinance of the City of Athens for the operation of taxicabs for hire in that city, that the application of the petitioner for a permit was denied at a regular monthly meeting of the defendants, though no objection was made by anyone that he had not complied with the requirements of the ordinance, that such denial was without legal justification or excuse, was arbitrary, illegal and capricious and an abuse of discretion, depriving him of the equal protection of the law in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States and of the impartial and complete protection of the law in violation of article 1, section 1, paragraph 2 of the Constitution of the State of Georgia, Code, § 2-102, and of due process of law in violation of article 1, section 1, paragraph 3 of the Constitution of the State of Georgia, Code, § 2-103, and that because of the denial of the said permit the petitioner is deprived of the right to pursue his chosen livelihood and suffers pecuniary loss for which he can not be compensated in damages — stated a cause of action for mandamus. Accordingly, the court did not err in overruling the general grounds of demurrer.
4. The special grounds of demurrer to certain allegations of the petition as being mere conclusions of the pleader are without merit, since such allegations are supported by the facts set out in the petition.
5. The answer of the defendants raised no issue of facts, and the judge was, therefore, authorized to apply the law to the facts instead of submitting the case to the jury. Harris v. Arnold,
6. Under the law and the facts the court did not err in granting a mandamus absolute.
Judgment affirmed. All the Justicesconcur.
The defendants demurred generally to the original petition and to the petition as amended on the following grounds: 1. The petition does not set forth a cause of action against the defendants. *338 2. The facts alleged do not entitle the petitioner to the relief sought. 3. The facts set forth do not show directly or indirectly any duty requiring the defendants to perform the acts sought to be enforced against them, nor do they show any right in the petitioner to require the performance of the said acts by the defendants. 4. The defendants demur specially to the allegation that the defendants denied the petitioner a permit without legal justification or excuse, on the ground that the allegation is a mere conclusion of the pleader. 5. The defendants demur specially to the allegation that the action of the defendants in denying the petitioner a permit was arbitrary, illegal, and capricious, on the ground that it is a mere conclusion of the pleader. 6. The defendants demur specially to the allegation that the defendants' denial of the petitioner's application for a permit constitutes a gross abuse of discretion, on the ground that it is a mere conclusion of the pleader.
The defendants filed an answer, admitting in substance the allegations as to the petitioner's compliance with the requirements of the ordinance for the issuance of a permit, but denying the allegations that they acted without legal justification or excuse, that their action in denying a permit was arbitrary, illegal and capricious, constituted a gross abuse of discretion, and that because of their denial of a permit the petitioner has been denied his right to pursue his chosen livelihood and suffers pecuniary loss for which he can not be compensated in damages. They set up: that the ordinance does not take away their discretion in the issuance of permits to operate taxicabs upon the streets of the City of Athens and does not authorize an applicant to begin operation, as a matter of right, without a permit, the granting of which is always in the discretion of the defendants; that, at the meeting at which a permit was denied the petitioner, no objections were expressed vocally, but that in denying the permit the defendants acted within their lawful power in exercising their discretion as they did, and it was their legal duty to do so; that the grant of a permit by the defendants in their discretion is required before the deposit of a liability-insurance policy; that, while admitting that the petitioner has a chauffeur's license, the issuance of such has no bearing whatsoever upon the question of granting the petitioner a permit to operate a taxicab, the grant of which is purely a matter *339 within their discretion; that, until a permit has been granted him, the Clerk of the Mayor and Council could not accept a license fee from the applicant for a permit; that the grant of a permit to operate a taxicab upon the streets of the city is a matter which rests solely in the discretion of the defendants; that the petitioner has no legal right to have a permit issued to him save in their discretion; and that in the exercise of their discretion the defendants have denied the petitioner a permit to operate a taxicab upon the streets of the City of Athens.
The exception here is to the judgment overruling all grounds of demurrer and to the judgment granting a mandamus absolute and reciting that no issue of fact was raised by the pleadings, the plaintiffs in error complaining that the case should have been submitted to a jury.