Schlesinger v. City of Atlanta

Docket Number4864.
Decision Date22 September 1925
Citation129 S.E. 861,161 Ga. 148
PartiesSCHLESINGER ET AL. v. CITY OF ATLANTA.
CourtGeorgia Supreme Court

Syllabus by the Court.

The use of streets and highways is not absolute and unrestricted, but is subject to reasonable regulation.

Individuals do not have the inherent right to conduct their private businesses in the streets of a city, and the state or city can prohibit the owners or operators of jitneys and busses from transporting passengers for hire in such vehicles upon the streets of a city.

(a) The transportation of passengers for hire in such vehicles or otherwise is a privilege which the state or the municipality can give or withhold.

(b) The due process and equal protection clauses of the Federal and State constitutions protect rights alone, and have no reference to mere concessions or mere privileges which may be bestowed or withheld by the state or municipality at will. Discrimination in the grant of favors is not a denial of the equal protection of the law to those not favored.

(c) If there is a demand for the service rendered by jitneys and busses, the remedy for the prohibition of such service by the mayor and general council of the city of Atlanta is political and not judicial.

The imposition by the Legislature of a tax upon an occupation subject to prohibition under the police power, and the payment thereof, will not prevent a city from prohibiting the conduct of such business in its streets, where individuals have no right to carry on such business in the streets.

This ordinance does not violate paragraph 2 of section 1 of article 4 of the Constitution of this state.

The other attacks upon its constitutionality are without merit.

As individuals have no right to transport passengers for hire in jitneys or busses on the streets of a city, and as a city can prohibit wholly or partially the conduct of such business in its streets, if the city sees fit to grant permission to individuals to conduct such business in its streets, it can prescribe such terms and conditions as it may see fit, and individuals desiring to avail themselves of such permission must comply with such terms and conditions whether they are reasonable or unreasonable.

Whether section 1 of this ordinance is unreasonable and void is not decided, because it is now moot, as under the undisputed evidence the licenses revoked by this section of this ordinance had all expired prior to the hearing of the application for injunction.

All persons who are willing to comply with the terms and conditions of this ordinance are entitled to permits or licenses to engage in the business of transporting passengers in jitneys or busses for hire, and denial of such permits or licenses to such persons would amount to a denial of the equal protection of the law. Any such applicant can enforce his right to such permit or license by mandamus.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by S. F. Schlesinger and others against the City of Atlanta. Judgment for defendant, and plaintiffs bring error. Affirmed.

Question whether ordinance unreasonable and void held moot.

On February 6, 1925, the mayor and general council of the city of Atlanta adopted an ordinance governing motor busses and jitney busses. The first section of this ordinance abolished and revoked all existing rights and permits for the operation on the streets of Atlanta, of any motor busses, jitneys, or jitney busses, as defined in the ordinance of the city adopted by the mayor and general council on April 13, 1919 and approved by the mayor on April 23, 1919, for the "licensing and regulating of motor busses" in the City of Atlanta, said abolition and revocation to take effect from and after 30 days from the approval of the ordinance. The second section of this ordinance provides that--

"No permit shall be granted or issued for the operation of, and it shall be unlawful to operate, any 'motor bus,' 'jitney,' or 'jitney bus,' as defined in said ordinance, upon any street, public place, or part thereof, in Atlanta, the route or routes of which shall include, in whole or in part, any street or streets upon which the tracks of any street railway are laid, and upon which cars are operated."

The third section declares that--

"No permit shall be granted or issued for the operation of, and it shall be unlawful to operate, any 'motor bus,' 'jitney,' or 'jitney bus,' as defined in said ordinance of 1919, upon any street or public place or part thereof, the route or routes or proposed route or routes of which shall include, in whole or in part, any street or streets for a distance of more than five blocks in its round trip, parallel to and within two blocks of any street upon which the tracks of any street railway are laid and upon which street cars are operated."

Section 4 provides that--

"It shall be unlawful to operate any 'motor bus,' 'jitney,' or 'jitney bus,' as defined in said ordinance of 1919 on or over any street or part thereof not included in the permit therefor, and no change, except temporarily for the purpose of avoiding obstructions, shall be made in the route designated in the permit."

Section 5 provides:

"That no permit or license shall hereafter be granted or issued for the operation as a 'motor bus,' 'jitney,' or 'jitney bus,' as defined in said ordinance of 1919, along or upon any of the streets of this city, of any automobile, motor bus, truck or other trackless vehicle, with a seating capacity of less than seventeen (17) passengers."

Section 6 makes it unlawful, from and after 30 days from the approval of this ordinance, for any person to drive or operate, or cause to be driven or operated, as a "motor bus," "jitney," or "jitney bus," as defined in said ordinance of 1919, upon or along any of the streets of the city, any automobile, motor bus, truck, or other trackless vehicle of a seating capacity of less than 17 passengers. Section 7 requires that each person, firm, or corporation, or association of persons operating any "motor bus," or "jitney," or "jitney bus," as defined in this ordinance, or in such ordinance of 1919 and the amendments thereof, shall, before the same are placed in operation, and before the issuing of the license therefor, file with the city clerk of Atlanta, for each "motor bus," "jitney," or "jitney bus," a liability insurance policy for injury to persons or property, as follows: For any person injured in the operation of said car, for loss or damage, up to the amount of $10,000; for injury or damage to any person caused in any one collision or accident up to an amount not exceeding $50,000; for injury or damage to property of any kind in any accident or collision up to and not exceeding $1,000.

Section 8 provides:

"All licenses, certificates, permits, and approval of routes, at any time issued or granted by and on behalf of the city of Atlanta, shall be subject to the right, on the part of the mayor and council, from time to time to make or adopt any ordinances, resolutions, or regulations further controlling, regulating, and governing the operation of 'motor busses,' 'jitneys,' and 'jitney busses,' or prescribing additional and other terms, conditions, license fees, of other and similar kinds and character for such business or the operation thereof, or changing, modifying, or withdrawing, in whole or in part, the approval of any right or rights for the operation of 'such vehicles' as may in the judgment of the mayor and general council be consistent with the requirements of the public welfare and within their power."

Section 9 makes it unlawful after 30 days from the approval of the ordinance, for any person to drive or operate, or cause to be driven or operated, any "motor bus," "jitney" or "jitney bus," as defined in said ordinance of 1919, within the congested area of the city, which is defined to be the fire limits as set out in section 3 of the Building Code. From and after 30 days from the approval of the ordinance it is made unlawful for any person to drive or operate, or cause to be driven or operated, any of said vehicles upon Peachtree street. Whitehall street, Marietta street, Decatur street, North Pryor street, South Pryor street, Edgewood avenue, Luckie street, Ivy street, Lucile avenue, Highland avenue, Stewart avenue, and Georgia avenue; and said section revokes all permits theretofore issued authorizing the operation of said vehicles within said limits or upon said streets or any portion of said limits of said streets.

By section 10 the mayor and general council reserve the right when, and if the needs of the public necessity and convenience require it, to authorize, within the limits and upon the streets defined in section 9, the operation of any of said vehicles, provided the application for such permits, showing the size, character, number of proposed vehicles to be operated, and the routes desired, are such as meet with the approval of said body, and provided further that the persons applying for the same shall comply with the provisions of sections 5 and 7 of this ordinance.

Section 11 imposes a fine not exceeding $200, or work upon the public works of the city not exceeding 30 days, either or both, in the discretion of the recorder, for any person, firm, or corporation violating any of the provisions of this ordinance.

Section 12 repeals conflicting ordinances, and provides that, if any section, part, or clause of this ordinance shall for any reason be held invalid, the same is declared to be severable, and the remainder thereof shall be deemed to be valid and given such effect and construction as if the invalid portion had not been included in the ordinance.

On March 6, 1925, plaintiffs filed their equitable petition against the city of Atlanta to enjoin...

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