Bush v. City of Jasper

• Decision Date: 06 December 1945
• Docket Number: 6 Div. 411.
• Citation: 247 Ala. 359,24 So.2d 543
• Parties: BUSH v. CITY OF JASPER.
• Court: Alabama Supreme Court

24 So.2d 543

247 Ala. 359

BUSH v. CITY OF JASPER.

6 Div. 411.

Supreme Court of Alabama

December 6, 1945

As Modified on Denial of Rehearing Jan. 24, 1946.

Chas. W. Greer, of Birmingham, and R. L. Newton, of Jasper, for appellant.

Curtis & Maddox, Pennington & Tweedy, and Carl Elliott, all of Jasper, for appellee.

GARDNER Chief Justice.

The bill was filed by the City of Jasper seeking injunctive relief against the operation by defendant, Costen Bush, of a taxicab business within the corporate limits of said city without a permit therefor. The temporary writ was granted and a motion to dissolve overruled. Defendant's demurrer to the bill was likewise overruled. But reduced to the last analysis, the only matter here argued both orally and by brief relates to the single question as to whether or not the bill was equity.

That injunction is an 'appropriate, effective, and orderly procedure by the city' in such a case appears not to be questioned. Farrell v. City of Mobile, 229 Ala. 294 156 So. 635, 636.

Confessedly, both by the pleadings and argument of counsel, defendant has no permit from the city for the operation of a taxicab business therein. Of course, one engaged in a taxicab business is a common carrier of passengers and has no inherent or natural right to operate motor vehicles as a common carrier of passengers on the streets of the city. Birmingham Interurban Taxi Serv. Corp. v. McLendon, 210 Ala. 525, 98 So. 578; City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117.

The Constitution of Alabama of 1901, in Sec. 220 reads as follows:

'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.'

And Sec. 72, Title 10, Code 1940, containing language of like import, is as follows:

'No person, firm, association, or corporation shall be authorized to use the streets, avenues, alleys, and other public places of cities, towns, or villages for the construction or operation of any public utility or private enterprise, without first obtaining the consent of the proper authorities of said city, town, or village.'

The statute appropriately reinforces the provisions of Section 220 of the Constitution. Our authorities have often stressed the emphatic and mandatory provisions of Section 220, supra. It grants to the cities certain constitutional rights which are not to be invaded. As observed in Birmingham Interurban Taxi Serv. Corp. v. McLendon, supra [210 Ala. 525, 98 So. 580]:

'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.'

The same authority also recognizes that the privilege of operating a taxi business as a common carrier of passengers for hire upon the streets of a city is in the nature of a franchise or easement, and that under our Constitution it can not be acquired without the consent of the city authorities. To consent or not to consent to a taxi business on the streets of a city is a power guaranteed by the Constitution, a power that the legislature and the courts must alike respect.

And in McLendon v. Boyles Transit Co., 210 Ala. 529, 98 So. 581, a case considered with that last above cited, the Court observed:

'And this consent has been denied, or, rather, has not been obtained by complainant from the duly constituted authorities of that municipality. The exercise of this discretion to grant or to refuse said use of the streets and public highways in such municipality has (by the Constitution) been invested in such duly constituted authorities.'

And in City of Mobile v. Farrell, supra, the opinion, citing these last two cases, expressly held that the city could, without the enactment of any ordinance, make a specific grant of franchise rights to one taxicab company and withhold it from another for no reason other than its own discretion; and that it is wholly within the province of the city authorities, under Section 220 of the Constitution, to grant its consent or withhold it from any person or corporation. It is within the irrevisable discretion of the city authorities to determine whether, and to what extent, the service is needed and to fix and determine the streets and to name the grantee of the right. Like thought was expressed in City of Decatur v. Meadors, 235 Ala. 544, 180 So. 550, 553, where the Court observed:

'Section 220 of the Constitution vests in cities and towns an irrevisable discretion to refuse or grant to such carriers the right to use their streets and ways in the conduct of such business, not controllable by injunction.'

Like principle was recognized in McCraney v. City of Leeds, 241 Ala. 198, 1 So.2d 894, where it was pointed out that our Constitution is a recognition of inherent power in towns and cities to withhold consent and to inhibit the use of a public street in any private enterprise.

So far as we have been able to follow the brief of counsel for the defendant, the foregoing authorities interpreting Section 220 of our Constitution have not been sufficiently answered. But as we gather from the argument of counsel, they rest their defense largely, if not wholly, upon what they conceive to be an invalid provision of the ordinance of the City of Jasper concerning the use of the streets for a taxicab business. ...