Memphis St. Ry. Co. v. Rapid Transit Co.

• Decision Date: 23 October 1915
• Parties: MEMPHIS ST. RY. CO. v. RAPID TRANSIT CO. ET AL.
• Court: Tennessee Supreme Court

179 S.W. 635

133 Tenn. 99

MEMPHIS ST. RY. CO. v. RAPID TRANSIT CO. ET AL.

Supreme Court of Tennessee.

October 23, 1915

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Action by the Memphis Street Railway Company against the Rapid Transit Company and others. From an order dismissing the bill on defendants' demurrer, complainant appeals. Reversed.

Charles T. Cates, Jr., of Knoxville, and Wright, Miles, Waring & Walker, of Memphis, for appellant.

Caruthers Ewing, of Memphis, for appellees.

GREEN J.

This bill was filed by the Memphis Street Railway Company to enjoin the Rapid Transit Company and other defendants from operating jitneys on the streets of Memphis in competition with the complainant's street cars. A demurrer was interposed by defendants, and sustained by the chancellor and the complainant has appealed to this court.

Complainant alleged that it was organized under the laws of Tennessee and had a franchise from the city of Memphis to operate a street railway system in that city; that it had expended in excess of $10,000,000 in constructing and equipping its street railway lines; that it operated about 129 miles of track, extending over all parts of the city; and that it had complied with all the laws of Tennessee and all the terms of its franchise from the city of Memphis.

The bill further averred that the defendants were engaged in operating jitneys or jitney busses upon the streets of Memphis in competition with the complainant, and that defendants were conducting this business without having made any attempt to comply with the statute of Tennessee regulating said business; that said defendants were operating their automobiles on the same streets upon which complainant ran its cars; that the jitneys were running at high rates of speed, cutting in front of complainant's cars, and racing by the cars in their efforts to reach the stopping places first, in order to pick up passengers; that they frequently ran in front of complainant's cars, thus forcing the cars to be stopped in order to prevent accident; that they often ran dangerously close to and by complainant's cars while the cars were standing for the purpose of taking off and discharging passengers, thereby causing many very serious accidents and even deaths. It was said that such operation of the said jitneys was hindering and impeding complainant from giving first-class service; that such illegal and unauthorized competition was depriving complainant of a large amount of revenue, by unlawfully diverting from it intended passengers upon its cars. The bill contains other charges upon which it is not necessary to dwell.

The General Assembly of Tennessee, in 1915, by chapter 60, Acts of that year, undertook to regulate the jitney business in the cities and towns of this state. This act declared those operating such vehicles to be common carriers, and provided that the operation of these conveyances should be unlawful in the incorporated cities or towns of this state without first obtaining a permit or license under ordinance from said city or town, and it was further provided that no such license should be issued unless the owner or operator filed with the clerk of the county court in the county in which the business was proposed to be done, a bond of not less than $5,000 to cover loss of life or injury to person or property inflicted by such carrier or caused by his negligence. It was further enacted that said license should embody such routes, terms, and conditions as the city or town might elect to impose, provided that no such permit or license should be granted which did not require the execution and filing of the bond mentioned above. Said act is set out in the margin of this opinion. ^[1]

The demurrer of defendants challenges the constitutionality of the act referred to and relied on by complainant. It does not distinctly appear whether the chancellor passed on the constitutionality of the statute or based his decision on other grounds of the demurrer. It is said by counsel for defendants that the result below was reached without consideration of the validity of the act in question, and it is urged that the case can be determined in this court without reference to the said act. Defendants therefore insist that this court is without jurisdiction, and the case is properly one for the Court of Civil Appeals; that no constitutional question is involved.

We are referred to cases in which it is said that the constitutionality of a statute will not be considered or adjudged if the case can be otherwise decided. We do not think, however, such a rule should control here. We have formerly said that, when any question involving the constitutionality of an act of the Legislature is bona fide made and relied on in a case, this court should take appellate jurisdiction of such a case under chapter 82, of the Acts of 1907. Campbell County v. Wright, 127 Tenn. 1, 151 S.W. 411.

The chief contention of complainant in this case is that defendants are outlaws on the streets of Memphis, with no right to pursue their business, by reason of the fact that the city has passed no ordinance giving them permission to operate, and because they have made no bonds, according to the provisions of chapter 60, Acts of 1915. Defendants, as we have said, challenge the constitutionality of this act. We think, therefore, the constitutional question in this case is bona fide, and that constitutional rights are relied on.

Although we appreciate the delicacy of passing on the validity of an act of the Legislature, such a duty is often imposed upon us, and we must not dodge our jurisdiction. Where an act of the Legislature undertakes to regulate a particular subject, and the application of such an act is invoked by one party in a suit involving that subject, and the validity of the act is questioned by the other party, we think it proper that the statute should be tested. Statutes are enacted to make the law plain and rights distinct. They are intended to be administered, and it is not incumbent upon the courts to enter upon a difficult and doubtful investigation of the rights of the parties under the common law--such rights being defined by a statute--merely to avoid passing on the constitutionality of such a statute.

So we think that there is a constitutional question in this case properly made, and that this court has appellate jurisdiction.

Chapter 60, Acts of 1915, has been considered, and the act adjudged valid and constitutional, in the case of City of Memphis et al. v. State of Tennessee ex rel. S. B. Ryals, 179 S.W. 631, opinion in which has just been filed by Mr. Justice Williams. It is not, therefore, necessary to further discuss this question in this opinion.

The act being valid, there is little trouble as to its proper construction. We have heretofore intimated our conception of its meaning. Under it, no jitney may be operated in any city or town of the state of Tennessee, except under a license or permit from said city or town, issuing under an ordinance passed in conformity with the said statute, nor shall such permit or license be issued until the statutory bond has been executed and filed with the county court clerk. In other words, jitneys have no right to operate on the streets of any incorporated city or town in Tennessee until an ordinance has been passed providing for licenses or permits, and such permits or licenses have been secured, and they have no right then to operate until they have made bond as required by the statute.

In the case before us the city of Memphis has passed no ordinance authorizing the issuance of licenses or permits to engage in this business, nor have the defendants undertaken to procure any such licenses, nor have they executed any bonds.

It is very clear, then, that defendants have no right whatever to do business on the streets of Memphis. They are lawbreakers, subject to criminal prosecution, operating in direct violation of the statute of this state.

These conclusions upon the statute being reached, many of the questions presented by the demurrer of defendants as to their common-law rights are eliminated from further consideration. The status of defendants is fixed by the act. There remains, however, the question as to the right of the complainant to an injunction against defendants under the circumstances above detailed.

The complainant does not seek an injunction here on the theory that it is possessed of an exclusive franchise to conduct the business of common carrier of passengers on the streets of Memphis. The contention of complainant is that, having been granted a franchise as such common carrier, it has a property right that will entitle it to restrain any person or corporation from attempting to engage in the business of common carrier of passengers on the streets of Memphis, in competition with complainant, without legislative or municipal authority. Complainant concedes that its franchise is not exclusive, in the sense that a similar franchise might not be granted to another to be exercised and enjoyed in the city of Memphis; but it maintains that its franchise is exclusive against all persons upon whom similar rights have not been conferred by legislative sanction.

We think this contention is well founded and supported by the great body of authority. In Pomeroy's Equity Jurisprudence it is said:

"An injunction is the appropriate remedy to protect a party in the enjoyment of an exclusive franchise against continuous encroachments. Such continuous encroachments constitute a private nuisance, which courts of equity will abate by injunction. The jurisdiction rests on the firm and satisfactory ground of its necessity to avoid a ruinous multiplicity of suits, and to give adequate

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