106 So. 418 | Fla. | 1925
The petitioner was convicted in the municipal court of the City of Tampa of violating Section 46 of said city "by having a stand for taxicab for hire on the street within two blocks of Franklin Street, within the city limits of the City of Tampa," and sued out a writ of habeas corpus in the Circuit Court of Hillsborough County, addressed to the Chief of Police, York, alleging in his petition *627 that the said ordinance was invalid. Return was duly made, and on hearing, the petition was dismissed, the petitioner remanded to custody, and petitioner was allowed and took a writ of error.
The ordinance attacked provides, inter alia, that "no taxicab, hack, bus or other vehicle will be permitted to have a stand within two blocks of Franklin Street. Such stands may be located at other places, provided the written consent of abutting property owners is obtained, after which the limits of said stand will be designated by the Chief of Police so as not to interfere with or obstruct traffic," also prohibiting abutting owners from receiving rents or compensation for the use of the public streets in front of their property, and prohibiting taxi drivers from verbally soliciting business on streets other than at stands.
Petitioner's counsel contends that this ordinance prohibits the use of taxicabs on certain streets, or within a certain area, whereas the city only has the charter power toregulate such use. We do not so understand the language of the ordinance. While inartificially drawn, it clearly intends only to prevent the establishment of taxicab stands within the designated area, and the solicitation of business on the streets at places other than such regular stands as may be established outside such designated area. It is contended that the city has all power necessary to regulate vehicles of all kinds on the streets of the city under Section 1871 of the Revised General Statutes of 1920, and also under chapter 9925 of the Laws of 1923, and other acts conferring corporate powers. This ordinance does not prohibit the use of taxicabs on any of the city streets. The prohibition of taxicab stands, or the solicitation of business, on the streets within certain crowded areas, or areas of heavy and constant traffic, but allowing their free movement and use therein, is in the nature of a regulation, rather than a prohibition, of the use of such vehicles, and hence within *628
the corporate powers of regulation. State v. Barbelais,
It is further alleged in the petition that this section of said ordinance is void because under other sections of the ordinance, automobiles other than taxicabs are permitted to park on streets within said area, and, further, that the city has marked off spaces on the pavement and curbing in certain business blocks where automobiles and other vehicles carrying freight and express for hire may, in the language of the petition, "park and do business on said streets," (though the language of the ordinance, which is made a part of the petition, was that such space was reserved "for the loading and unloading of merchandise from the respective places of business in" such blocks,) and that this constitutes an unjust discrimination against petitioner and denies him the equal protection of the laws. These allegations alone are not sufficient to show an unjust discrimination against petitioner and denies him the equal protection of the laws. These allegations alone are not sufficient to show an unjust discrimination in the exercise of the conceded municipal power of regulation. It is a matter of common knowledge that the general public, or that portion of same using automobiles as a private means of transport, are quite generally permitted to park their vehicles along *630
the sides or in the center of city streets, though in many cases for a limited time only, and in some cases no parking is permitted on certain portions of streets where there is great density of traffic. There is a distinction between allowing the parking of ordinary vehicles by the general public along streets and allowing owners or operators of taxicabs operated for hire to appropriate a certain portion of a busy street as a location for the conduct of their private business, where their vehicles are kept in the intervals when they are not employed in the carriage of persons or property, and while awaiting, or soliciting, such employment. This distinction was long ago made, as to standing places of more primitive vehicles, to-wit, stage coaches, by Lord Ellenborough in Rex v. Cross, 3 Campb. 224, who characterized it as "making a stable-yard of the King's highway." Nor would any unjust discrimination against the petitioner necessarily appear if the city allowed a certain reasonable space in each business block where freight-carrying vehicles could park to load and unload freight going to or from stores abutting the street. It is a matter of common knowledge again, that cities usually allow abutting owners or their tenants engaged in the mercantile business reasonable means of ingress and egress between their stores and places of business and the public street for the unloading and the carrying of freight thereto and therefrom. Indeed, this is a right which, though subject to reasonable regulation, cannot ordinarily be entirely denied. Dillon's Municipal Corporations, Secs. 1016 and 1123; Donovan v. Pennsylvania Co.,
The views hereinabove expressed are not in conflict with the principles announced in Malone v. City of Quincy,
It is finally contended that the court below erred in not permitting the petitioner to introduce evidence in support of his petition. If there was error in this, it was error without injury, as from what we have said above it appears that if every fact alleged in the petition be admitted as true, the invalidity of section 46 of the ordinance is not shown. However, there is nothing in the record indicating a refusal to hear evidence excepting a recital in the order dismissing the petition to the effect that as the petition, writ and return only presented questions of law, it was not necessary that any evidence be submitted in connection with same. Furthermore, it is not the province of a writ of habeas corpus to take the place of a writ of error, and to bring in review any irregularity or mere error of procedure committed by a judicial tribunal having jurisdiction of the cause and the person and under whose judgment a party claiming to be unlawfully restrained of his liberty may be held. Ex parte Bowen,
Final order affirmed.
WHITFIELD, ELLIS, TERRELL AND STRUM, J. J., concur.