Frick v. City of Gary

• Decision Date: 12 May 1922
• Docket Number: No. 23761.,23761.
• Parties: FRICK v. CITY OF GARY.
• Court: Indiana Supreme Court

192 Ind. 76

135 N.E. 346

FRICK

v.CITY OF GARY.

No. 23761.

Supreme Court of Indiana.

May 12, 1922.

Appeal from Superior Court, Lake County; Charles E. Greenwald, Judge.

Action by Henry H. Frick against the City of Gary to restrain the enforcement of a city ordinance. Judgment for defendant after demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

McMahon & Conroy, of Hammond, and Gavit, Hall & Smith, and A. M. Stein, all of Gary, for appellant.

James A. Patterson, City Atty., Robert M. Davis, and Oliver Starr, all of Gary, for appellee.

EWBANK, C. J.

Appellant was the owner and the driver of a “jitney bus” in the city of Gary at the time a city ordinance was enacted which forbade the drivers of such vehicles to receive and discharge passengers on certain of the streets of that city. The only question presented for decision is the validity of a section of that ordinance, which, as amended, forbids said acts under penalty of a fine not exceeding $300.

The amended section reads (in part) as follows:

“It shall be unlawful for any person, firm or corporation to operate any vehicle, except street cars and taxicabs, engaged in the carriage of passengers for hire, to stop to take on or discharge passengers upon Broadway, Washington street, Massachusetts street, Connecticut street or Adams street, public highways in the city of Gary,” etc.

Appellant denies the validity of this section of the ordinance because, as he insists: (1) the Legislature has not conferred upon the city council statutory authority to enact it, and because, he says (2) the ordinance and such a statute, if there be one, are in violation of the Constitution of Indiana (article 1, §§ 21, 23 ; Burns' 1914, §§ 66, 68), which forbids the taking of private property without compensation, or the granting of privileges and immunities to any citizen or class of citizens which, upon the same terms, shall not belong to all citizens.

The complaint, to which a demurrer was sustained, asked for an injunction forbidding the city to enforce the ordinance. It alleged that the streets named extend south from the northern limits of the city of Gary, through the principal business section, a distance of four miles to the southern limits of the city, and are the only south and north streets in the business section; that Broadway is 100 feet in width, and runs south from the main entrance of a manufacturing plant, which employs 8,000 men, who must pass along Broadway south to Third avenue in order to reach any other street, as no others extend north of that avenue; that there are sidewalks 19 feet wide on either side, and a street railway with a brick pavement between the rails and tracks on Broadway; that every bank, department store, and railroad passenger station in the city of Gary, the principal hotels, and three-fourths of all the mercantile houses are located on Broadway; that the other named streets are located at distances of one and two squares, east and west of Broadway, respectively, and have many business houses and ample sidewalks, but there are no street railways thereon; that streets running east and west intersect these streets, but the five streets named are all that extend north and south through the central business section of Gary, or within three-quarters of a mile from the main entrance of said manufacturing plant; that plaintiff (appellant) paid a fee of $35, and obtained a city license under the provisions of an ordinance requiring all persons operating on the streets of said city motor vehicles having a capacity of nine passengers or less, when used for the solicitation, carriage, and transportation of passengers for hire, to have such licenses, unless such motor vehicles should be used exclusively as taxicabs, hearses, ambulances, hotel busses, railroad busses and sight-seeing busses, operated from a garage or office, expressly upon call, by telephone or otherwise; that at the time of bringing suit, plaintiff was engaged in operating, under such license, a Ford touring car with a seating capacity of five passengers, as he and many others had been doing for three years, for the solicitation and transportation for hire of passengers who desired to go along said named five streets, in either direction, but that the defendant city (appellee) threatened to arrest and punish by a fine and otherwise the plaintiff and other operators of such motor vehicles, if they should stop to take on or discharge passengers on Broadway, north of Third avenue, and near the entrance of said manufacturing plant, and would do so, and thereby destroy plaintiff's business, alleged to be worth more than $2,000, unless restrained by an injunction. It will be observed that the ordinance does not forbid jitney busses to drive upon the streets named, and appellant does not allege that he has been restrained in that matter, but only that appellees threaten to arrest him if he shall stop to receive or discharge passengers on Broadway. Appellant has assigned as error the ruling by which a demurrer was sustained to his complaint.

[1] The contention that this ordinance violates the Constitution of Indiana is based in the first place upon the fact that it excepts street cars and taxicabs from the “vehicles engaged in the carriage of passengers for hire” which are forbidden “to stop to take on or discharge passengers” at the places named. The difference between a street car operated on a railway track, under a franchise pursuant to which a large permanent investment has been made, and a Ford touring car used as a jitney bus, is obvious, and counsel for the appellant admit that they properly may be put in different classes. But it is urged that a taxicab may be and often is a Ford touring car, the same as appellant's “jitney bus,” and that denying to appellant in the operation of his car the right to receive and discharge passengers on streets where taxicabs have that privilege is a discrimination which makes the ordinance unconstitutional. The word “taxicab” has a well-known and definite meaning. Vehicles which operate from a fixed station at which the drivers receive passengers or receive telephone calls directing them where the passengers will be found, and which drive to the destination of their passengers over any streets which are available for such travel, should not be classified with vehicles which drive back and forth along one street on which the traffic is heaviest, picking up passengers from the sidewalks, and pushing through where the crowds are greatest as affording the best prospect for obtaining fares. The mere fact that the same kind of vehicle may be used in each business does not control the classification. If appellant will use his car as a taxicab, perhaps he may do so without violating the ordinance. It does not forbid the use of any particular kind of vehicle, but forbids making a certain kind of use of any vehicle whatever. The ordinance is not open to the objection that it arbitrarily classifies as different two things which are essentially the same. State ex rel. v. City of Spokane, 109 Wash. 360, 186 Pac. 864;Allen v. Bellingham, 95 Wash. 12, 163 Pac. 18;Nolen v. Reichman (D. C.) 225 Fed. 812;Memphis v. State ex rel., 133 Tenn. 83, 179 S. W. 631, L. R. A. 1916B, 1151, Ann. Cas. 1917C, 1056;Memphis St. R. Co. v. Rapid T. Co., 133 Tenn. 99, 179 S. W. 635, L. R. A. 1916B, 1143, Ann. Cas. 1917C, 1045;Ex parte Cardinal, 170 Cal. 511, 150 Pac. 348, L. R. A. 1915F, 850;Thielke v. Albee, 79 Or. 48, 153 Pac. 793;Greene v. City of San Antonio (Tex. Civ. App.) 178 S. W. 6.

[2] The objection that the ordinance deprives appellant of property without compensation is unfounded. It does not interfere with his right to pass over the streets, and to do anything in the streets which is incident to their use for purposes of public travel. It only forbids the transaction of a designated kind of public business in certain public streets. And an individual who has engaged in the conduct of business in a highway, without obtaining a franchise to do so, has no property in the right to continue doing it.

[3] One who operates a vehicle over a fixed route along a city street, and to the capacity of the vehicle carries for hire any persons who may hail him from the sidewalk and ask for passage is a common carrier of passengers. Desser v....