Jarrell v. Orlando Transit Co.

• Decision Date: 24 April 1936
• Citation: 123 Fla. 776,167 So. 664
• Parties: JARRELL v. ORLANDO TRANSIT CO.
• Court: Florida Supreme Court

167 So. 664

123 Fla. 776

JARRELL v. ORLANDO TRANSIT CO.

Florida Supreme Court, Division B.

April 24, 1936

Bill by Orlando Transit Company against J. B. Jarrell, individually and trading and doing business as Economy Cab Company. From the decree, defendant appeals.

Affirmed. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.

COUNSEL

Joe Akerman and Dickinson & Dickinson, all of Orlando, for appellant.

Baker &amp Thornal, of Orlando, for appellee.

OPINION

TERRELL Justice.

This case grows out of a controversy between appellant, a taxicab company, and appellee, a bus company, over the effect of a franchise held by the latter to operate over certain streets of the city of Orlando, Fla.

It appears that the city of Orlando granted the Orlando Transit Company an exclusive franchise to operate a bus service for a fare not exceeding 10 cents per passenger over designated streets to the exclusion of Economy Cab Company and other carriers charging less than 15 cents per passenger. This franchise was granted pursuant to chapter 10980, Special Acts of 1925, the pertinent part of which is as follows:

'Authority is hereby conferred upon the City Council or other governing body of the City of Orlando to grant to any person, persons, firm or corporation an exclusive franchise for the use of the streets of the said City for the operation of automobile buses subject to the terms, conditions and restrictions of this Act and of lawful ordinances of said City to be enacted in accordance herewith.' Section 1.

Other sections of the act limit such franchises to ten years, authorize the city to limit and regulate the class of equipment used in their operation, and require the holder of the franchise to abide by the regulations imposed on it by the city. Section 1871, Revised General Statutes of 1920, section 2981, Compiled General Laws of 1927, vest general powers in the city to regulate the use of such franchises.

After the franchise was granted, appellant, who was a duly licensed taxicab operator, but who had not secured a permit to operate by submitting its equipment to the city for inspection as the ordinance directs, commenced the operation of a taxicab service over the city including those streets and avenues on which Orlando Transit Company held the exclusive franchise. The theory of appellant was that there was a clear distinction between the operation of a bus business and a taxicab business and that both might operate in the same field regardless of the exclusive franchise held by appellee.

Feeling that the operation of appellant's taxicab business was in violation of its franchise, Orlando Transit Company filed its bill of complaint praying that appellant, defendant below, be restrained from soliciting passengers for transportation along the routes covered by its franchise at a fare of 10 cents per passenger and that said defendant be further restrained from cruising over the routes covered by complainant's franchise ahead of its busses and soliciting passengers for hire at a fare less than 15 cents per passenger. An answer was filed, testimony was taken, and on final hearing the equities were found to be with the complainant and the relief prayed for was granted.

This appeal is from the final decree enjoining the defendants and their agents from engaging in the business of picking up passengers and transporting them for hire at a fare of 10 cents per passenger along the designated bus routes of the plaintiff, or from operating their taxicabs over the bus routes of the plaintiff for the purpose of soliciting passengers, or from systematic cruising over the bus routes of complainant and taking on any passengers for a fare less than 15 cents per person, provided, that passengers may be delivered to any points along said bus line if not taken on in violation of this decree.

Briefs of counsel illuminate a multitude of questions, but the nub of the controversy is whether or not the city of Orlando can regulate the use of its streets by privately owned bus and taxicab operators and may it give the former an exclusive right over the latter to operate on designated streets? Our view is that this question must be answered in the affirmative, and, being so, it follows that the right of the bus operator may be protected by injunction or other appropriate relief.

The right to use the streets and highways of a municipality for the conduct of a strictly private business is not inherent; it can be acquired by permission or license from the city, whose power to withhold or grant it in the manner and to the extent it may see fit is an assential prerogative of municipal government. State v. Quigg, 94 Fla. 1056, 114 So. 859; State ex rel. McAuley v. York, 90 Fla. 625, 106 So. 418; Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U.S. 335, 52 S.Ct. 144, 76 L.Ed. 323; People's Taxicab Co. v. City of Wichita, 140 Kan. 129, 34 P.2d 545, 95 A.L.R. 1218.

The theory underlying these decisions and many others not included is that the streets and highways are constructed at public expense for the convenience, comfort, and use of the public. If they are permitted to be pre-empted and appropriated for private enterprise, then their very purpose is defeated, and those who bear the burden of their construction are deprived of the objective they set out to accomplish. There is then no such thing as a natural right to use the public highways for commercial purposes. Such limited right as the public may grant to use them for private business is merely a privilege that may be restricted or withdrawn at the discretion of the granting power. Whether the grant is by license, permit, or franchise is immaterial; the power to do so is plenary and may extend to absolute prohibition. The right may be granted to one and withheld from others, or it may be withheld from all without transgressing any state or federal constitutional guaranty.

The city is of course devoid of inherent power to bestow such a right on appellee as is complained of but chapter 10980 Acts of 1925, was ample for that purpose. The cases cited treat such acts and ordinances passed in pursuance of them and an examination of the doctrine announced therein leaves no ground to doubt their validity. Such ordinances have been frequently upheld when enacted on authority of the general powers granted to the municipality.

The reason for a franchise or permit in such cases, whether it be exclusive or limited, is to secure for the public an efficient, safe, and dependable service by requiring bonded operators if necessary to avoid ruinous competition, to require the use of first-class standard equipment, and to enforce such other regulations as may be deemed advisable in the interest of the public. It goes without argument that when granted, such franchises may be protected by injunction. Green v. Ivey, 45 Fla. 338, 33 So. 711; Slusher v. Safety Coach Transit Co., 229 Ky. 731, 17 S.W.2d 1012, 66 A.L.R. 1378; Messina v. Galutza, 178 Ark. 608, 11 S.W.2d 468; Hazard Bus Co. v. Wells, 226 Ky. 591, 11 S.W.2d 413; Memphis St. R. Co. v. Rapid Transit Co., 133 Tenn. 99, 179 S.W. 635, L.R.A.1916B, 1143, Ann.Cas.1917C, 1045; Princeton Power Co. v. Calloway, 99 W.Va. 157, 128 S.E. 89; Denver Tramway Corporation v. People's Cab Co. of Denver (D.C.) 1 F.Supp. 449.

The rationable of these cases is that the public is entitled to be served economically and efficiently by the best equipped facilities obtainable, that it have a reliable and dependable service, and be freed from the vices and discomforts incident to cutrate competition. It is not necessary that the one seeking protection against the violation of his franchise establish his right to it at law. When he shows that he holds it or is entitled to hold a franchise with which there is a continuous interference he is entitled to relief.

We have examined Curry v. Osborne, 76 Fla. 39, 79 So. 293, 6 A.L.R. 108; State v. Quigg, 94 Fla. 1056, 114 So 859, and other cases relied on by appellant, but they are not analogous. In Curry v. Osborne the municipality had no authority to pass the ordinance, and the basis of the...