Hadfield v. Lundin

• Decision Date: 08 November 1917
• Docket Number: 14239.
• Citation: 168 P. 516,98 Wash. 657
• Court: Washington Supreme Court
• Parties: HADFIELD et al. v. LUNDIN, Pros. Atty.

168 P. 516

98 Wash. 657

HADFIELD et al. v. LUNDIN, Pros. Atty.

No. 14239.

Supreme Court of Washington, En Banc.

November 8, 1917

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Earl Hadfield in his own behalf, and in behalf of others similarly situated, against Alfred H. Lundin, as prosecuting attorney for King county, etc. Complaint dismissed, and plaintiff appeals. Affirmed.

William R. Crawford and Ralph Pierce, both of Seattle, for appellant.

Alfred H. Lundin and Frank P. Helsell, both of Seattle, for respondent.

ELLIS, C.J.

Plaintiff in his own behalf and in behalf of others similarly situated seeks in this action to enjoin defendant, as prosecuting attorney of King county, from prosecuting persons for operating motor propelled vehicles for hire upon the public streets of Seattle without having filed the bond and obtained the permit required by chapter 57, Laws of 1915, Rem. Code, § 5562-37 et seq. He alleged, in substance, that since the passage of that act up to and including a time shortly preceding the commencement of this action, he had been engaged in the business of transporting for hire passengers along the public streets of Seattle in an automobile; that during such time he had on file with the secretary of state a bond executed by a qualified surety company in the sum and conditioned as required by that act; that the bond has expired, and is now under its terms null and void; that he has been unable to secure a new bond from any surety company doing business in this state and that no such surety company will write such a bond for him or for any other person engaged in a business similar to that of plaintiff, and this regardless of the financial responsibility of the applicant that the secretary of state threatens to and will cancel plaintiff's permit and will refuse to issue to him another permit unless and until plaintiff procures and files a surety bond as required by the act. He further alleged that the Mutual Union Insurance Company, a domestic mutual insurance company, has been organized, and is authorized to write liability or indemnity insurance against loss or damage resulting from accident or injury suffered by an employé or other person for which the insured is liable; that such company has issued to plaintiff its contract for such liability in the penal sum of $2,500, which is by its terms assignable to the state of Washington in behalf of any person who may be injured through the negligence or unlawful conduct of plaintiff in the conduct of his business of carrying passengers for hire that this contract has been assigned to the state of Washington for the protection of any person so injured; that notwithstanding the fact that a solvent fund has been so provided, defendant threatens strictly to enforce such law and compel plaintiff to secure a permit from the secretary of state and to furnish a bond signed by a surety company licensed to do business in this state; that such a course will force plaintiff out of a profitable and legitimate business, deprive him of his means of livelihood and inconvenience the public. Finally, it is alleged:

'That such law is null and void because so burdensome as to be unreasonable; because it is arbitrary, confiscatory, impossible of fulfillment, and tantamount to a prohibition against the carrying on by the plaintiff of a legitimate business; that it contravenes the Constitution of the state of Washington, section 3, article 1, thereof, and the Constitution of the United States, article 14 thereof, in that in deprives the plaintiff of his liberty and property without due process of law and denies to the plaintiff the equal protection of all the provisions of the Constitution of the state and of the United States applicable thereto.'

Defendant moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The motion was sustained, and the complaint was dismissed. Plaintiff appeals.

Appellant's contentions are: (1) That chapter 57, Laws of 1915, is unconstitutional; (2) that in any event he should be permitted to assign to the state and file the indemnity bond tendered in his complaint as a sufficient compliance with the statute.

1. It is urged that the statute is unconstitutional, in that it deprives appellant of his liberty and property without due process of law, thus contravening section 3, article 1, of the state Constitution, and in that it deprives him of the equal protection of the law in contravention of the fourteenth amendment of the federal Constitution. We have twice held this law constitutional. State v. Seattle Taxicab & Transfer Co., 90 Wash. 416, 156 P. 837; State v. Ferry Line Auto Bus Co., 93 Wash. 614, 161 P. 467. But it is argued that in neither of those cases did it appear that bonds of the character prescribed by the law could not be procured, which fact does appear in the record now before us, and which, it is asserted, demonstrates the unconstitutionality of the law. We shall confine our discussion to a consideration of that question.

The streets and highways belong to the public. They are built and maintained at public expense for the use of the general public in the ordinary and customary manner. The state, and the city as an arm of the state, has absolute control of the streets in the interest of the public. No private individual or corporation has a right to the use of the streets in the prosecution of the business of a common carrier for private gain without the consent of the state, nor except upon the terms and conditions prescribed by the state or municipality, as the case may be. The use of the streets as a place of business or as a main instrumentality of business is accorded as a mere privilege, and not as a matter of natural right. In State v. Seattle Taxicab & Transfer Co., supra, we said:

'As to those who were denied bonds, the act may be prohibitive, but this does not argue against its constitutionality. It in no manner proves that the regulation is unreasonable. Highways are constructed primarily as a convenient passageway for all of the people, and no one has an absolute right to use them for his own private gain, even though such use be to carry over them people who desire the service.'

In Greene v. City of San Antonio (Tex. Civ. App.) 178 S.W. 6, it is said:

'So in this case appellant has never had any vested right to use the streets of San Antonio to engage in the business of a common carrier of passengers for hire, and no right of his is infringed or invaded by the ordinance requiring certain things to be done in order to enter into business on the streets, which have, at the expenditure of large sums, been placed by the city in prime condition for automobile travel. The streets belong to the public, the city being its trustee, and no private individual or corporation has a right to use such streets for the prosecution of a business without the consent of the trustee and a compliance with the conditions upon which the permission to so use them is given.'

In Le Blanc v. City of New Orleans, 138 La. 243, 274, 70 So. 212-223, it is said:

'The streets of the cities and towns in Louisiana being among the things that are 'public' and for 'the common use,' no individual can have a property right in such use for the purposes of his private business, unless, speaking generally, that business being in the nature of a public service or convenience, such as would authorized the grant, the right has been granted by the state, which alone has the power to make or authorize it, or by the particular city or town, acting under the authority of the state, and in such case the right can be exercised only in accordance with the conditions of the grant; that is to say, an individual seeking, but not possessing, a right of that kind, may accept the grant, with the conditions imposed by the offer, in which case he becomes bound by the conditions, or he may refuse to accept the conditions, in which case there is no grant, and without the grant so offered, or some other, from the authority competent to make it, he can never acquire the right to make use of a street as his place of business.'

See also, to the same effect, Memphis Street Ry. Co. v. Rapid Transit Co., 133 Tenn. 99, 179 S.W. 635...