Fritz v. Presbrey

• Decision Date: 14 March 1922
• Docket Number: Nos. 539, 540.,s. 539, 540.
• Citation: 116 A. 419
• Parties: FRITZ et al. v. PRESBREY et al. MONAHAN et al. v. SAME.
• Court: Rhode Island Supreme Court

116 A. 419

FRITZ et al.

v. PRESBREY et al.

MONAHAN et al.

v. SAME.

Nos. 539, 540.

Supreme Court of Rhode Island.

March 14, 1922.

Sweeney, J., dissenting.

Appeals from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Suit by John A. Fritz and others against Walter A. Presbrey and others. Suit by Patrick Louis Monahan and others against Walter A. Presbrey and others. From decrees granting preliminary injunctions against enforcing an ordinance restricting the use of motor busses in the city of Providence, respondents appeal. Decrees reversed, injunctions vacated, and causes remanded.

See, also, 116 Atl. 4.

Elmer S. Chace, City Sol., and Herbert E. Eklund, Asst. City Sol., both of Providence, for appellants.

Albert B. West, Pettine & De Pasquale, and John F. Murphy, all of Providence, and William W. Blodgett, of Pawtucket, for appellees.

SWEETLAND, C. J. The above-entitled proceedings are bills in equity filed by certain complainants, who allege that in the city of Providence they have been duly licensed to engage in the business of transporting passengers for hire by means of motor vehicles, termed "motor busses" under the provisions of chapter 1263, Public Laws 1915, and popularly called "jitneys."

The complainants seek to restrain the board of police commissioners and the superintendent of police of Providence from enforcing against the complainants the provisions of a certain ordinance of said city regulating the operation of motor busses, and prescribing and limiting the route or routes to be traveled by such motor busses within said city.

The causes were tried before a justice of the superior court upon the prayer of each complainant for a temporary injunction. By his decrees said justice granted these prayers, and temporarily restrained the respondent board and superintendent from enforcing said ordinance. The causes are now before us upon the respondents' appeals from said decrees.

The ordinance in question prescribes that motor busses shall not be operated within a specified area in the center of the retail business section of Providence. In accordance with the direction contained in said ordinance the board of police commissioners have fixed locations for the termini of motor busses just without said prescribed area. The objections of the complainants are that said ordinance and the action of the board of police commissioners pursuant thereto are gross abuses of the regulatory power of the city council; that said ordinance is unreasonable, unjust, and discriminatory; that its provisions are unrelated to public safety or convenience; and that the complainants, because they are prevented from transporting their passengers through said area and to its center, have been affected in their business, and have suffered and are likely to suffer, pecuniary loss.

Said ordinance was adopted in reliance upon authority given by chapter 1263, Public Laws 1915. Said statute, among other things, provides that any city or town council may by ordinance make such general rules and regillations governing the use and operation of motor busses in the streets and public places of such city or town as it may deem necessary or desirable for the public safety, welfare, and convenience, and "especially to prevent congestion of traffic, may itself, or by such officer, board or commission as it may authorize, prescribe and limit the route or routes to be traveled by such motor busses, respectively," and, further, any city or town counsel may prescribe that no motor bus shall be operated within such city or town without a special annual license therefor. Section 6 of the Motor Bus Ordinance of the city of Providence, as amended by chapter 276 of the ordinances of said city approved December 20, 1920, provides for such special annual license, and further provides that—

"Every motor bus license shall be subject to the condition that if at any time legal provision is made prescribing, limiting, altering or abolishing any route or routes to be traveled by motor busses, such license and the bus licensed shall be subject thereto and operated accordingly."

It is manifest that by chapter 1263 of the Public Laws the General Assembly intended to delegate to the city council of Providence, in common with the other city and town councils of the state, a part of its police power. Within the territorial limits of Providence, for the public safety and convenience, the city council was authorized to regulate the business of operating motor busses, and in order to prevent congestion of traffic it might prescribe and limit the routes which motor busses should travel. These considerations of public welfare undoubtedly present a field for the exercise of the police power.

At the outset in the consideration of this matter we are met by the contention of the respondents that the superior court and this court is without jurisdiction to inquire into or pass upon the question of whether this ordinance is unreasonable, oppressive, and not conducive to public safety and convenience, because the ordinance was not adopted by virtue of any implied power of the city council, but upon an express grant of power from the General Assembly. We cannot agree with this contention of the respondents. The opinions of the courts in other jurisdictions cited by the respondents as authorities for their position do not, when analyzed, support, but are opposed to, the respondents' claim. The correct rule is that set out in the very able and comprehensive brief and argument of counsel for the complainants. If an ordinance is passed in virtue of and in exact conformity with an express grant of legislative power, in which the manner of its exercise is prescribed in definite and precise terms, a court will not pass upon the validity of such an ordinance. The attack, if any, must be made against the constitutionality of the enabling statute. Such a case would have been presented if the General Assembly had in express terms empowered the city council to exclude the operation of motor busses upon the area defined in the ordinance now under consideration.

The power given to the city council by chapter 1263 of the Public Laws to prescribe and limit the routes of motor busses is expressly granted, but in general terms, and the mode of its exercise is left to the discretion of the city council. As to ordinances passed under such a grant of power or as to those adopted in reliance upon general implied powers, the courts will consider their reasonableness, and pass directly upon their validity. State v. Mayo, 106 Me. 62, 75 Atl. 295, 26 L. R. A. (N. S.) 502, 20 Ann. Cas. 512; In re Anderson, 69 Neb. 686, 96 N. W. 149, 5 Ann. Cas. 421; City of Emporia v. Railway Co., 94 Kan. 718, 147 Pac. 1095; Phillips v. City of Denver, 19 Colo. 179, 34 Pac. 902, 41 Am. St. Rep. 230; Haynes v. Cape May, 50 N. J. Law, 55, 13 Atl. 231; Chicago v. Ripley, 249 Ill. 466, 94 N. E. 931, 34 L. R. A. (N. S.) 1186, Ann. Cas. 1912A, 160; City of Lakeview v. Tate, 130 Ill. 247, 22 N. E. 791, 6 L. R. A. 268; Shelbyville v. Cleveland, etc., Ry. Co., 146 Ind. 66, 44 N. E. 929.

In considering the reasonableness of the ordinance in question, passed under the delegated police power of the state, the court will apply to its provisions the tests which are applicable in determining the validity and constitutionality of a statute having a like purpose. When called upon, courts will scrutinize legislation purporting to be enacted for the public welfare to see if the object sought, calls for the exercise of the police power. If such object can fairly be said to be a regulation to promote the safety, health, morals, comfort or convenience of the community, then courts will not interfere with the wide scope of legislative discretion in determining the policy to be employed in its exercise, unless it appears that the discretion has been abused and the legislative action is so clearly unreasonable and arbitrary as to be oppressive.

In East Shore Land Co. v. Peckham, 33 R. I. 541, at 548, 82 Atl. 487, 491, this court said:

"All statutes are presumed to be valid and constitutional and the burden of proving the unconstitutionality of any statute is upon the party raising the question; furthermore, the rule is that he must prove it beyond a reasonable doubt."

In State v. Narragansett, 16 R. I. 424, at 440, 16 Atl. 901, 906 (3 L. R. A. 295) the court said:

"The rule generally laid down is, that statutes should be sustained unless their unconstitutionality is clear beyond a reasonable doubt. A reasonable doubt is to be resolved in favor of legislative action, and the act sustained."

Also see Cleveland v. Tripp, 13 R. I. 50. In the Opinion to the Governor, 24 R. I. 603, 54 Atl. 602, it was said:

"Both this court in State v. Peckham, 3 R. I. 289, and the Supreme Court of the United States in Munn v. People, 94 U. S. 113, have declared that the Legislature is the exclusive judge of the propriety and necessity of legislative interference within the scope of legislative power. If a state of facts could exist which would justify legislation, it is to be presumed that it did exist."

The complainants' criticism of the language of the court in some of these cases indicates a misconception of the nature of an inquiry as to the constitutionality of an act of the General Assembly. The ordinary rules as to proof have no application in such proceeding. The inquiry is a consideration by this court in regard to the constitutional propriety of the act of a co-ordinate branch of the government. Before this court will declare the unconstitutionality of such act, in either a civil or criminal proceeding, the court must be convinced of the invalidity beyond a reasonable doubt. In delivering the opinion of the court in Wellington et al., Petitioner, 16 Pick. (Mass.) 87, at 95, 26 Am. Dec. 631, Chief Justice Shaw said:

"When called upon to pronounce the invalidity of an act of legislation passed...