Hover v. Okla. City
| Decision Date | 16 October 1928 |
| Docket Number | Case Number: 18652 |
| Citation | 1928 OK 614,271 P. 162,133 Okla. 71 |
| Parties | HOVER v. OKLAHOMA CITY et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Municipal Corporations--Ordinance Setting Aside Portion of Street for Market Only a Revocable License or Permit.
When a city of this state, by ordinance, attempts to set apart a portion of one of its streets to be used as a public market for the sale of farm products, or to be used as a main instrumentality of any business, or for the conduct of any business, such ordinance constitutes only a revocable license or permit, and a person so using such street acquires no property or contractual right therein, and any time the city authorities deem it necessary to revoke such permission entirely, or limit the hours of its enjoyment, the persons theretofore having such permission must comply with the ordinance of revocation or limitation.
2. Same--Ordinance not Void as Denying Equal Protection of the Law if Affecting Alike All Persons Similarly Situated.
An ordinance of a city will not be declared void under the Fourteenth Amendment to the Constitution of the United States on the ground that it denies to a party the equal protection of the law, if within the sphere of its operation it affects alike all persons similarly situated.
3. Same.
Held, that, under the facts in this case, the parties in whose favor plaintiff claims the ordinance discriminates as against him are not similarly situated with him, and therefore the ordinance would not be void for that reason alone.
M. S. Singleton, for plaintiff in error.
M. W. McKenzie, Municipal Counselor, Bliss Kelly, Asst., and J. F. Martin, for defendants in error.
¶1 The plaintiff in error, F. M. Hover, in behalf of himself and others not named, but alleged to be similarly situated, filed his petition in the district court of Oklahoma county, in which he sought to enjoin the city of Oklahoma City, together with its officers, from enforcing an ordinance of said city establishing, as plaintiff alleged, certain hours for him and his coplaintiffs to sell their products on a certain part of California street in said city.
¶2 A temporary injunction was granted, but when the cause came on for trial on the petition and answer, the temporary injunction was dissolved, and since injunctive relief was all that was asked by plaintiff, upon denial of that, he appealed to this court.
¶3 The evidence discloses that for several years that part of California street between Robinson and Harvey streets had been known as the "California Street Market" in the city, where the farmers and truck growers have been permitted by the city to sell their products. In the operation of this market there had been allotted by the city authorities for this purpose four feet of the sidewalk next to the street, room in the street for placing their trucks, and also room was allowed back of the trucks for parallel parking in the street for the convenience of customers, leaving the middle of the street for traffic. There are about 55 stalls located between Harvey and Robinson on California street for the use of the farmers and truckmen, and the holders of these places of business are selected from among all the parties desiring to do business there. Between Harvey and Robinson streets, on the north side of California street, there are many stalls next to the buildings extending four feet on the sidewalk, and in these stalls commission dealers or retail men are permitted to conduct their business, and which business it is claimed by plaintiff is similar in its nature to that in which the plaintiff and his associates are engaged.
¶4 The evidence does not disclose the exact time the use of the street as a market place was first permitted by the city, but we first find an ordinance described as section 428, Compiled Ordinances of 1913, as follows:
¶5 And next there is found one designated as ordinance 3028, passed on June 1, 1926, which, omitting the formal parts, is as follows:
"Section 1. That section No. 430 of the revised ordinances of the city of Oklahoma City, Okla., be, and the same is hereby amended so as to read as follows: "Public market hours shall be between the hours of 5 o'clock a. m. and 9:30 o'clock p. m. on all days except Saturdays and Sundays, and on Saturdays shall close at 11:30 o'clock p. m. There shall be no public market on Sundays."
¶6 On the 21st day of June, 1927, the city passed and published ordinance 3201, the applicable part being as follows:
¶8 It will be seen that the ordinance contains no restriction as to hours of business against the parties mentioned in the foregoing paragraph, but, by the provisions of section 1, requires plaintiff and his associates to cease business at 2 p. m., and plaintiff therefore assails the ordinance as being discriminatory in character, in violation of section 2, article 2 of the Constitution of this state, as follows:
"All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry."
¶9 And section 1 of the Fourteenth Amendment of the Constitution of the United States, which reads:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
¶10 If plaintiff has a right to occupy this street for the purpose of conducting his business, he then has a right upon which he may stand irrespectively of whether some other person is or is not permitted to use such street to conduct a similar or different business. But let us see whether the plaintiff has such a right.
¶11 Section 4564, C. O. S. 1921, defines the power cities of this state have in the control of their streets, and the right to erect, regulate and establish market places by cities is derived from section 4565, C. O. S. 1921.
¶12 We find the general principle governing the question here presented in 18 R.C.L. 372, stated as follows:
"It seems to be the generally accepted view that a municipality has no authority, in the absence of express enactment by the Legislature, to establish or license markets or market stalls or stands in a public street, for the reason that the public is entitled to the free and unobstructed use of the street, and adjoining property owners are entitled to free and unobstructed ingress and egress to and from their property, and a municipality has no more right, in the absence of a legislative grant, to interfere with this use than any individual would have."
¶13 The case of Schopp et al. v. St. Louis, 117 Mo. 131, 22 S.W. 898, 20 L.R.A. 783, is cited in the foregoing text as supporting the doctrine there announced. In that case the city had by ordinance set apart a portion of one of its streets as a market "for farmers and other wagons bringing produce to market for sale," and by ordinance gave the comptroller power to lease stands on and along that portion of the street to such vendors of produce. The plaintiff, the owner of property abutting on this street, which was leased to tenants conducting a business somewhat similar to the parties granted the privilege of the streets, brought a suit seeking by injunction to restrain the city from permitting its streets to be used in the manner we have stated. The situation in that case is peculiarly similar to the case under consideration. The court held that the use of the streets as permitted by the ordinance was unlawful because inconsistent with the rights of the plaintiff and with the rights of the public in the use of the street, and in the opinion said:
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Croxton v. State, Case Number: 28863
...maintain such a contention, they would have to show that they and the majority owner are "similarly situated." See Hover v. Oklahoma City, 133 Okla. 71, 271 P. 162. It is obvious, of course, that the situations of the two classes of owners are dissimilar in the quantum of their ownership an......
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Hover v. Oklahoma City
...271 P. 162 133 Okla. 71, 1928 OK 614 HOVER v. OKLAHOMA CITY et al. No. 18652.Supreme Court of OklahomaOctober 16, 1928 ... Syllabus ... by the Court ... When a ... city of this state, by ordinance, attempts to set apart a ... portion of one of its streets to be used as a ... ...