WATTS
C.J.
This is
an application by petitioners to enjoin the enforcement of an
ordinance passed by the city of Columbia. The return of the
city of Columbia sets forth the reason of the passage of the
ordinance in question, and contends:
That the ordinance in question "is a valid exercise of
the police power vested in the city of Columbia, and is fully
justified by the public convenience and necessity. The
fundamental
basis of the city's exercise of this power is that the
use of the streets of the city for the purpose of carrying
on the business of operating motor vehicles
for hire is a privilege, and not an inherent right of its
citizens. This privilege, therefore, if exercised, must be
subject to the rules and regulations prescribed by the
city."
"The
burden of the petition in this case is that the ordinance is
unreasonable and confiscatory, because it requires the
jitneys to operate on prescribed routes and schedules."
So the question to be determined is: Has the city the right
to route and schedule all forms of motor vehicle
transportation over its streets? We find the following acts
of the Legislature:
(a)
Act 1871-section 10, from an act to alter and amend the
charter of the city of Columbia, approved March 2, 1871:
"Sec. 10. That the mayor may, as often as occasion may
require, or whenever requested so to do, in writing, by three
aldermen, summon the aldermen to assemble in council; and
that the said mayor and aldermen shall have, and they are
hereby vested with, full and ample power, from time to time
under their common seal, to make all such ordinances, rules
and regulations, relative to the streets and markets of the
said city, as they may think proper and necessary, and to
establish such by-laws, not inconsistent with the laws of the
land, as may tend to preserve the quiet, peace, safety and
good order of the inhabitants thereof. ***" 14 Stat. p.
572.
(b)
Commission Form of Government Act-section 4727, Code 1922:
"(4727) Sec. 9. Powers of Council.-The council
shall have, possess and exercise all executive, legislative
and judicial powers and duties conferred upon such city, or
theretofore belonging to it, with the power to establish such
subordinate officers as they may see fit and assign to them
appropriate duties, subject to the council. Each member of
the council shall give to the duties of his office all the
time that may be needed for the most efficient conduct of the
affairs of the city." Page 1428.
(c) Acts of 1928, p. 1229:
"An act providing for the control by cities of more than
thirty thousand and less than fifty thousand inhabitants of
transportation by motor vehicles.
Be it enacted by the General Assembly of the state of South
Carolina:
Section 1. That the city council of any city which at the
last preceding United States census had a population of more
than thirty thousand and less than fifty thousand inhabitants
shall be and are hereby granted exclusive jurisdiction and
control over any and all motor-propelled vehicles (which term
shall not include vehicles usually operated upon or over
rails) used for the transportation of persons or property for
hire on any of the streets of said city (except buses
operating on regular schedules and routes between such city
and other points not less than ten miles distant therefrom),
with full power and authority to make and enforce such rules,
regulations and classifications governing the operation of
such vehicles as they may deem necessary or desirable; to
confine such vehicles, or special classes thereof, to
particular streets or routes, and to exclude such vehicles,
or special classes thereof, entirely from the streets; to fix
the rates, fares and charges of such motor vehicle carriers;
and to prescribe the license to be paid to the city by such
carriers, and the amount and character of bond which they may
be required to give.
Sec. 2. *** That the city council shall have power to enforce
the provisions of this act, the powers hereby granted, and
such rules and regulations as may be adopted pursuant
thereto, by appropriate penalties.
Sec. 3. That all acts or parts of acts inconsistent herewith
are hereby repealed.
Sec. 4. That this act shall become effective immediately upon
its approval by the Governor."
We find
on this question the following authorities:
Henderson v. City of Bluefield, 98
W.Va. 640, 127 S.E. 492, 42 A. L. R. 279, holding (syllabus):
"A municipal ordinance making it unlawful for drivers or
proprietors of taxicabs, motor busses, and jitneys to solicit
passengers for hire on the streets of the municipality, to
stand or park the same in the city closer than 100 feet of
any railroad passenger station or the terminus of any
interurban street railway car line, *** should be upheld as
having been enacted in the reasonable exercise of the police
power of the municipality and its charter authority to pass
ordinances for the regulation of automobiles and other
vehicles within the municipality promotive of the interest or
convenience of the inhabitants thereof.
The validity of the ordinance, sole question for solution,
depends upon the enactment of the ordinance as being a
reasonable exercise of the police power and charter authority
of the city. The proper exercise of the police power permits
the municipality, independent of any statutory authority
conferred upon it, to regulate the use and enjoyment of the
streets in the interest of the public health, general
welfare, and convenience of the people. Bluefield v.
Public Serv. Commission, 94 W.Va. 334, 118 S.E. 546.
A charter provision empowering municipal corporations to
grant, refuse, or revoke license to owners of vehicles kept
for hire therein, and to subject them to such regulation as
the interest and convenience of the inhabitants thereof, in
the opinion of the municipal authorities, may require,
delegates to the corporation full legislative power over such
vehicles. Ex parte Dickey (Dickey v. Dickey) 76
W.Va. 587, 85 S.E. 781, L. R. A. 1915F, 840, P. U. R. 1915E,
93. ***
An enactment prohibiting any hackman from permitting his
horse or vehicle to stand in any public street of a village,
or to walk or drive through the streets soliciting patronage,
was held valid in the case of People ex rel. Van Norder
v. Sewer, Water & Street Commission, 90 A.D. 555, 86
N.Y.S. 445. In
answer to the contention that the law was in conflict with
the state Constitution as depriving the relator,
a hackman, of property without due process of law, the
opinion states:
'It seems to me a complete answer to this contention is
that the relator has no legal right to conduct his business
in a public street, except he does so under a lawful license
authorizing him so to do. The law in question does not
prohibit the relator from engaging in the occupation of a
hackman, but simply lays down salutary rules, prohibiting his
soliciting patronage as such hackman in the public
streets.'
In modern times the power to regulate public conveyances for
hire, such as hacks, taxicabs, motorbuses, and jitneys,
inheres in the Legislatures of the several states, but this
power may be, and usually is, delegated by the states to the
various municipalities within their borders. The
municipalities in pursuance of the authority delegated to
them by the states, may, as a valid exercise of the police
power, pass ordinances regulating the business of such
conveyances. Whether a particular ordinance is reasonable for
the purpose for which it is enacted is in the first instance
to be determined by the municipal authorities. When they have
acted and the ordinance has been passed it is presumptively
valid, and, before a court will be justified in holding it
invalid, its unreasonableness must be clearly made apparent.
While it is true that municipal ordinances, to be valid, must
be reasonable, the presumption is in favor of their validity,
and it is incumbent upon any one seeking to have them set
aside as unreasonable to point out or show affirmatively
wherein the unreasonableness consists. Tested by this rule,
we are of opinion that the ordinance in question, as a
salutary regulation of traffic in the municipality, is
reasonable and valid. ***"
98
W.Va. 642, 127 S.E. 492, 42 A. L. R. 280, 281, 282.
Many cases supporting the foregoing decision are
likewise abstracted in the note in 42 A. L. R. 282, as
follows:
"In holding that a statutory provision making it
unlawful for any hackman to 'permit any horse or vehicle
to stand in any public street *** for hire, or to walk or
drive through the streets soliciting patronage,' did not
deprive one of his property without due process of law, it
was said in People ex rel. Van Norder v. Sewer, Water & Street Commission (1904) 90 A.D. 555, 86 N.Y.S. 445
that the statute did not prohibit the relator from engaging
in the occupation of a hackman, but simply laid down
statutory rules prohibiting his soliciting patronage as such
hackman in the public streets, the court approving the
forfeiture of a license where it violated an express
condition embodying the language quoted.
An ordinance which imposed an additional license fee upon
jitneys and similar vehicles for hire, as a condition to
their being permitted to solicit or receive passengers in
certain designated streets in which trolley cars were
operated, was declared by the court to be practically
prohibitive as to these streets in Desser v. Wichita
(1915)
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