Capitol Taxicab Co. v. Cermak

• Citation: 60 F.2d 608
• Decision Date: 19 August 1932
• Docket Number: No. 11786.,11786.
• Parties: CAPITOL TAXICAB CO. v. CERMAK, Mayor of City of Chicago, et al.
• Court: U.S. District Court — Northern District of Illinois

60 F.2d 608 (1932)

CAPITOL TAXICAB CO. v. CERMAK, Mayor of City of Chicago, et al.

No. 11786.

District Court, N. D. Illinois, E. D.

August 19, 1932.

Walter J. Miller and Walter L. Wenger, both of Chicago, Ill., for plaintiff.

William H. Sexton, Corporation Counsel, of Chicago, Ill. (Carl J. Appell and Benjamin J. Kanne, Asst. Corporation Counsel, both of Chicago, Ill., of counsel), for defendants.

Before PAGE, Circuit Judge, and LINDLEY and WOODWARD, District Judges.

LINDLEY, District Judge.

Plaintiff is a corporation seeking to be allowed to transact the business of transporting passengers for hire in taxicabs in the city of Chicago. It prays in its bill of complaint an injunction against the municipal authorities from enforcing a certain ordinance governing the licensing of such public vehicles.

The ordinance creates a public vehicle license commission and provides that no taxicab license shall issue unless the commission shall, after hearing, declare that "public convenience and necessity require the proposed service." However, it is further provided that such requirement shall not apply to the licensing of the same number of taxicabs as were licensed and operated by the applicant on the 16th day of September, 1929, or to the renewal of same annually thereafter or to the renewal of licenses for the same number of taxicabs of the applicant, as to which the commission shall, at any time prior to the application, have made a declaration as aforesaid. These exceptions, plaintiff contends, produce discrimination against it in violation of the Fourteenth Amendment of the United States Constitution.

The ordinance further provides that, in arriving at its decision as to public convenience and necessity, the commission shall take into consideration (a) the public demands and traffic conditions; (b) the financial condition of the applicant; (c) the number, kind, type of equipment, rates, and color schemes proposed; (d) increased traffic congestion and available parking space; (e) the safe use of the streets and such other "relevant facts as the commission may deem advisable or necessary." The burden is placed upon the applicant to prove beyond reasonable doubt that public convenience and necessity require the proposed additional operation of vehicles. These provisions, the plaintiff insists, amount to a delegation of arbitrary power to executive officers, whereby they may unreasonably adopt different rules for different parties.

Defendants move to dismiss the bill for want of equity, insisting that the ordinance is valid under the laws and Constitution of Illinois and in no way violative of the Fourteenth Amendment to the Federal Constitution.

The Legislature of Illinois has by the Cities and Village Act, chapt. 24, art. 5 of the Illinois Revised Statutes, delegated certain of its legislative power to control local affairs to the city council. Clause 7 of section 1 of said act (Smith-Hurd Rev. St. 1927, c. 24, § 65) grants to the last-named body power "to lay out, to establish, open, alter, widen, extend, grade, pave or otherwise improve streets * * * and public grounds"; clause 9, "to regulate the use of the same" and the 66th clause "to regulate the police of the city * * * and pass and enforce all necessary police ordinances." While, as the Supreme Court of Illinois states, in City of Chicago v. Kluever, 257 Ill. 317, at page 320, 100 N. E. 917, this is not a delegation of all the police power of the state, it is a grant of sweeping power of control over the streets, and sufficient, as held in the case cited, to sustain an ordinance requiring examination and license of all taxicab operators. "Necessary" police power does not mean indispensable police power, but is power conferred to pass all reasonable ordinances "conducive to the promotion of the health, safety and welfare of its inhabitants." To such extent the city may exercise restraint and control over the citizen and his occupation. Spiegler v. City of Chicago, 216 Ill. 114, 74 N. E. 718; Price v. People, 193 Ill. 114, 61 N. E. 844, 55 L. R. A. 588, 86 Am. St. Rep. 306; City of Chicago v. Kluever, supra. Any grant of use of the streets by any quasi public corporation may be made conditional upon performance by it of reasonable specified duties. People v. Suburban R. R. Co., 178 Ill. 594, 53 N. E. 349, 49 L. R. A. 650.

So the Supreme Court of Illinois, in People ex rel. v. Thompson, 341 Ill. 166, 173 N. E. 137, 138, after remarking that the sole limitation upon a city council in the passage of local laws is that the same shall be reasonable, in passing upon the ordinance now before this court, held the same valid under the Constitution and laws of Illinois. The court said:

"The Public Utilities Act does not take from cities and villages the previously conferred power to regulate taxicabs. The taxicab business, as a general rule, does not include the operation of a conveyance or vehicle over specified routes, under a regular schedule as to time or between definite points, and hence, within the meaning of the Public Utilities Act, a taxicab is not ordinarily a public utility. Newcomb v. Yellow Cab Co., P. U. R. 1916B, 983; Southern Illinois Light & Power Co. v. Norton, P. U. R. 1916B, 987 note; Austin Bros. Transfer Co. v. Bloom, 316 Ill. 435, 147 N. E. 387. The right to regulate includes the right to impose reasonable conditions and restrictions. Westgate v. Adrian Township, 161 Mich. 333, 126 N. W. 422; McWethy v. Aurora Electric Light & Power Co., 202 Ill. 218, 67 N. E. 9. The power to regulate the use of streets by vehicles includes the power to promote the general welfare and prevent accidents, and the reasonableness of police regulation is not necessarily what is best, but what is fairly appropriate under all circumstances. Weksler v. Collins, 317 Ill. 132, 147 N. E. 797; Sligh v. Kirkwood, 237 U. S. 52, 35 S. Ct. 501, 59 L. Ed. 835. An ordinance will be presumed reasonable until the contrary is proved. City of Chicago v. Washingtonian Home, 289 Ill. 206, 124 N. E. 416 6 A. L. R. 1584; People v. Village of Oak Park, 266 Ill. 365, 107 N. E. 636. The legislative branch of the state or city may delegate to an administrative board duties involving the exercise of administrative discretion. City of Chicago v. Marriotto, 332 Ill. 44, 163 N. E. 369, 60 A. L. R. 501; People v. Roth, 249 Ill. 532, 94 N. E. 953, Ann. Cas. 1912A, 100; Block v. City of Chicago, 239 Ill. 251, 87 N. E. 1011, 130 Am. St. Rep. 219; Arms v. Ayer, 192 Ill. 601, 61 N. E. 851, 58 L. R. A. 277, 85 Am. St. Rep. 357."

Passing to the specific provisions of the ordinance the court used this language:

"The ordinance in question does not delegate unregulated discretion to the public vehicle license commission. City of Chicago v. Washingtonian Home, supra; Arms v. Ayer, supra; Milstead v. Boone, 301 Ill. 213, 133 N. E. 679. The foregoing authorities sustain the proposition that a city council may authorize others to do things which it might properly but cannot understandingly or advantageously do.

"The ordinance is not discriminatory on the ground that it singles out taxicabs for regulation and does not apply to private vehicles or other public vehicles drawn by horses. No one has any inherent right to use the streets or highways as a place of business. Where one seeks a special or extraordinary use of the streets or public highways for his private gain, as by the operation of an omnibus, truck, motorbus, or the like, the state may regulate such use of the vehicle thereon or may even prohibit such use. Chicago Motor Coach Co. v. City of Chicago, 337 Ill. 200, 169 N. E. 22, 66 A. L. R. 834; Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596; Davis v. Massachusetts, 167 U. S. 43, 17 S. Ct. 731, 42 L. Ed. 71."

This language effectually disposes of the contention that the erection of the commission and placing within it the power hereinbefore mentioned is an unconstitutional delegation of authority to the commission. Of the same import is Milstead v. Boone, 301 Ill. 213, 133 N. E. 679.

Nor can it be successfully asserted that a requirement of investigation of the financial condition of the applicant is unreasonable. The financial responsibility of a taxicab operator is a pertinent and justifiable element to be considered by the city, acting in pursuance of its police powers, in determining whether the safety of the public is being properly protected. Weksler v. Collins, 317 Ill. 132, 147 N. E. 797, and many cases there cited. See, also, Roy v. Ill. Com. Com., 322 Ill. 452, 153 N. E. 648; Egyptian Transp. System v. L. & N. R. R., 321 Ill. 580, 583, 152 N. E. 510; Wilcox Transp. Co. v. Com. Com., 328 Ill. 455, 159 N. E. 788; Chicago Rys. Co. v. Com. Com., 336 Ill. 51, 167 N. E. 840, 67 A. L. R. 938.

In view of the language of the statute and of the decisions noted, it follows that the ordinance is a valid exercise of power, unless there is something therein contained violative of the Federal Constitution. In this connection, it is contended that the ordinance places upon new applicants requirements not exacted of taxicab proprietors operating at the time of passage thereof. In People v. Evans, 247 Ill. 547, 93 N. E. 388, 392, the court had for decision a question as to the constitutionality of a law providing for the licensing of miners and requiring all applicants to take an examination as to their qualifications, unless they had been for two years and were at the time of the passage of the act actually engaged in mining. This exception, it was contended, worked an unconstitutional injury by discrimination, preventing equal protection of the laws. The court said: "As we view the provision of the statute which exempts the miner from an examination if he was employed in mining in this state at the time the statute went into effect, as a prerequisite to issuing him a certificate, it does not confer upon such miner any privilege, right, or immunity, and does not...