Birmingham Interurban Taxicab Service Corporation v. McLendon

• Citation: 98 So. 578,210 Ala. 525
• Decision Date: 22 December 1923
• Docket Number: 6 Div. 46.
• Parties: BIRMINGHAM INTERURBAN TAXICAB SERVICE CORPORATION v. MCLENDON ET AL., COMMISSIONERS.
• Court: Alabama Supreme Court

98 So. 578

210 Ala. 525

BIRMINGHAM INTERURBAN TAXICAB SERVICE CORPORATION v. MCLENDON ET AL., COMMISSIONERS.

6 Div. 46.

Supreme Court of Alabama

December 22, 1923

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill for injunction by the Birmingham Interurban Taxicab Service Corporation against D. E. McLendon and others, as commissioners of the city of Birmingham. From a decree dissolving temporary injunction and dismissing the bill complainant appeals. Affirmed.

Ralph W. Quinn, William F. Spencer, and Thomas C. McClellan, all of Birmingham, for appellant.

W. J Wynn and W. A. Jenkins, both of Birmingham, for appellees.

BOULDIN J.

Const. Ala. 1901, § 220, reads:

"No person, firm, association or corporation shall be authorized or permitted to use the streets, avenues, alleys or public places of any city, town, or village for the construction or operation of any public utility or private enterprise, without first obtaining the consent of the proper authorities of such city, town or village."

This section was construed in City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117.

We there held that its terms, "contemplated the permanent preservation of the municipal right to control, by withholding consent, the use of the streets *** for the operation of any public utility or private enterprise," mean "to preserve against legislative action a measure of local self-government," "to restrict the power of the Legislature to the extent that it could not enact laws affecting or governing the use of local public ways that did not recognize or respect the thus permanently preserved rights of the local authorities to determine, according to their judgment, whether or not such ways and places mentioned in section 220 should be used for the purposes prescribed in section 220." It was further declared: "The thing over which the municipality may exercise the control contemplated is the use of the public ways and places therein."

A taxicab company, doing the business of a common carrier of passengers for hire, was therefore held to be either a "public utility," or a "private enterprise," within the meaning of section 220 of the Constitution. This case further declared that such taxicab companies are subject to statutes conferring power to exact licenses and to regulate in the interest of the public safety and welfare the use of the streets by persons and vehicles.

In Cloe v. State ex rel. Hale, 209 Ala. 544, 96 So. 704, the pertinent provisions of ordinance 759-C, regulating the granting of such license, was set out. That was a mandamus proceeding to require the commissioner of public safety to issue a license to a jitney bus to operate on a special route.

The court said:

"The petitioner has no natural or inherent right to operate motor vehicles, as common carriers of passengers, on the streets of Birmingham"-citing City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117; Const. 1901, § 220.

This case further holds that the commissioner of public safety is vested with no power to issue licenses; that this power is in the commission; that the granting of licenses is in their discretion at least as to the number of vehicles the needs of the public require, or the character of the streets and the convenience and safety of traffic permit.

The equity of the present bill must rest upon one of two theories: First, that complainant has a natural property right to use the streets of Birmingham in the conduct of its business upon complying with the regulations applying thereto; or, second, the commission has granted such right to any and all persons who conform to these regulations. Upon such premise it is claimed that an arbitrary, capricious abuse of discretion has deprived complainant of a property right to its injury.

The clear language of section 220 of the Constitution admits of no other construction than that given in the cases above reviewed. "No" one shall be authorized or "permitted to use the streets" for the purposes named "without first obtaining the consent" of the "proper authorities" of the "city."

The framers of section 220, above, must have foreseen the increasingly acute situation on the streets of our cities. The control of the streets in conserving the public safety and convenience was deemed an essential sovereign power in the local authorities, who alone can keep an eye on conditions, and meet the needs as they arise.

It may be noted that section 220, and a new section, 221, protecting municipalities in the matter of privilege taxes, were made the first sections of the article on municipal corporations. They are in the nature of a bill of rights. They recognize certain fixed, constitutional rights which shall not be invaded.

The privilege of operating a taxicab business as a common carrier of passengers for hire upon the streets of a city is in the nature of a franchise or easement. Under our Constitution it can be acquired only from the city authorities-from the commission in Birmingham.

Whatever may be the right of complainant to obtain a permit, it must come through the commission. Taking as true all that is averred to the effect that the refusal has been arbitrary, capricious, malicious, and autocratic, and granting for argument that such abuse of discretion would warrant a mandamus to compel the issuance of license under the ordinance, it does not follow that such "consent" can be given by the indirect process of injunction.

The prayer of the bill is for an injunction to restrain and enjoin the city authorities from molesting or interfering with complainant in carrying on a taxicab business in Birmingham and vicinity. The temporary injunction is so framed. By this process complainant is "permitted" to carry on its business without the "consent" of the city authorities.

That Ordina...