Ex Parte Dickey.

• Decision Date: 22 June 1915
• Citation: 85 S.E. 781,76 W.Va. 576
• Court: West Virginia Supreme Court
• Parties: Ex parte DICKEY.

85 S.E. 781

76 W.Va. 576

Ex parte DICKEY.

Supreme Court of Appeals of West Virginia.

June 22, 1915.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Original proceedings for habeas corpus by M. T. Dickey against Sam Davis, Chief of Police. Writ refused.

Daugherty & Riggs, of Huntington, for petitioner.

F. M. Livezey, of Huntington, for respondent.

POFFENBARGER, J. Charging illegality of an ordinance for violation of which he is held in restraint of his liberty, the relator seeks his discharge on a writ of habeas corpus.

The ordinance in question is one made by the commissioners of the city of Huntington, for the regulation, licensing, and taxing of certain vehicles commonly known as "jitneybusses, " designated in the ordinance as motor busses and therein defined as vehicles "propelled by either gasoline or electricity, operated over any of the streets in the city of Huntington, for the purpose of carrying passengers for hire, at a rate of fare of 15 cents or less for each passenger, and which receives and discharges passengers along the route traversed by such vehicles." It makes it unlawful for any person, firm, or corporation to use or occupy any public street in the city of Huntington with a motor bus, without a permit or license therefor and compliance with the terms of the ordinance. It imposes an annual license tax of $50 for such of them as have capacities of four passengers or less and $70 for such as have capacities of five passengers or more, but allows an apportionment of the tax when the license is taken out for the unexpired portion of a year. It also requires the licensee to enter into a bond in the penalty of $5,000, with a condition for compliance with the provisions of the ordinance and payment of any and all lawful claims for damages for injury to persons or property sustained by passengers in them or by other persons that may be killed or injured or suffer damage to property in the city of Huntington in the operation thereof. A condition precedent to the issuance of the license is the filing of an application showing: (1) The name, residence, and business address of the person, firm, or corporation owning and operating the bus; (2) the type of motor bus to be used; (3) the number of such vehicles to be operated by the applicant and the state license number of each; (4) the seating and weight capacity of each; and (5) the terminals and the routes over which it is to be operated, and the hours of its operation. The commission reserves to itself the right to refuse or grant such permit or license as applied for, or to change the route or the hours set forth in the application and then grant the license upon such changed route or hours or both.

As regards legislative power or control,, the business or interest regulated by the ordinance is clearly distinguishable from vocations, the pursuit of which does not involve the use of public porperty. The right of a citizen to pursue any of the ordinary vocations, on his own property and with his own means, can neither be denied nor unduly abridged by the Legislature, for the preservation of such right is the principal purpose of the Constitution itself. In such cases, the limit of legislative power is regulation, and that power must be cautiously and sparingly exercised, unless the business is of such character as places it within the category of social and economic evils, such as gaming, the liquor traffic, and numerous others. To this list may be added such useful occupations as may, under certain circumstances, become public or private nuisances, because offensive or dangerous to health. All of these fall within the broad power of prohibition or suppression, some wholly and absolutely and others conditionally. Such pursuits as agriculture, merchandising, manufacturing, and industrial trades cannot be dealt with at will by the Legislature. As to them, the power of regulation is comparatively slight, when they are conducted and carried on upon private property and with private means. But when a citizen claims a private right in public property, such as a street or park, a different situation is presented. Such properties are devoted primarily to general and public, not special or private, uses, and they fall within almost plenary legislative power and control. In them, all citizens have the usual and ordinary rights in an equal degree and to an equal extent. In the regulation thereof, the Legislature cannot discriminate. But, as regards unusual and extraordinary rights respecting public properties, its power of control and regulation is much more extensive. Such rights are in the nature of concessions by the public, wherefore the Legislature may give or withhold them at its pleasure. It may give them for some purposes and withhold them for others, and, in the case of those given, it may, upon considerations of character, quality, and circumstances, discriminate, permitting some things of a general class or nature to be done and refusing to permit others of the same general class to be done, or extending the privilege to some persons and denying it to others because of differences of character or capacity.

The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus. The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual, and extraordinary. As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader. The right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature. This distinction, elementary and fundamental in character, is recognized by all the authorities:

"A distinction must be made between the general use, which all of the public are permitted to make of the street for ordinary purposes, and the special and peculiar use, which is made by classes of persons in the pursuit of their occupation or business, such as hackmen, drivers of express wagons, omnibusses, etc. Tiedeman on Municipal Corporations, § 209.

"The rule must be considered settled that no person can acquire the right to make a special or exceptional use of a public highway, not common to all citizens of the state, except by grant from the sovereign power." Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242; McQuillen, Municipal Corporations, 1620.

An ordinance of the city of Boston provided that no person should make an address in or upon or near the public grounds of the city, without a permit from the mayor. Having been denied such a permit, one Davis did make a public address on public grounds known as "Boston Commons." Under this ordinance, he was convicted of an offense, and the Supreme Judicial Court of Massachusetts affirmed the judgment, holding the Legislature had conferred upon the city of Boston the power to pass and enforce such an ordinance. On an appeal to the Supreme Court of the United States, the judgment of the state court was affirmed, and Mr. Justice White, delivering the opinion of the court, said:

"The fourteenth amendment to the Constitution of the United States does not destroy the power of the states to enact police regulations as to the subjects within their control, * * * and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the Constitution and laws of the state." Davis v. Massachusetts, 167 U. S. 43, 47, 17 Sup. Ct. 731, 733 (42 L. Ed. 71).

Plainly, therefore, the result of this inquiry depends, not upon the power of the Legislature over the subject-matter of relator's alleged right, but upon the action of the Legislature respecting the same. That he has no natural or indefeasible right to maintain upon a public highway a vehicle for the carriage of passengers for hire is unquestionable. Though, in point of theory, special rights in highways are vested in individuals only by legislative grant, it is matter of common knowledge and judicial cognizance that, without express legislative permission to do so, citizens use them in special ways consistent with their nature. They naturally enter upon them and carry on business, not inconsistent with their use for ordinary purposes, or rather not obstructive of such use, until prohibited by a statute or an ordinance. In the early history of this country, before the establishment of railroads, the public roads were used by stage lines. Indeed, passenger transportation through the country, other than that by navigable waters, was carried on by means of stage lines, and the Legislatures exercised little, if any, authority over them, beyond the establishment of such regulations as were applicable to other vehicles on the public roads. How their rights were acquired, and just what regulations were imposed, would be matter of historic interest, but its importance or relevancy upon this inquiry would hardly justify the examination of the early statutes, requisite to the ascertainment of the creation, recognition, or regulation of the right. At this late day, they are not readily to be found in the text-books. City cabs and omnibuses are of the same general nature and are permitted to use the streets of all cities and villages throughout the country, without any special grant from the Legislature, Proceeding upon the as sumption of the right of owners of vehicles to use highways for the purposes of common carriage, the Legislatures deal with them in much the same manner as that in which they deal with ordinary vocations, confining themselves to measures of regulation. While it does...