Kon v. City of Ann Arbor

• Decision Date: 02 June 1972
• Docket Number: Docket No. 12748,No. 2,2
• Citation: 199 N.W.2d 874,41 Mich.App. 307
• Parties: Masao KON et al., Plaintiffs-Appellants, v. CITY OF ANN ARBOR, a municipal corporation, et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 874

199 N.W.2d 874

41 Mich.App. 307

Masao KON et al., Plaintiffs-Appellants, v. CITY OF ANN ARBOR, a municipal corporation, et al Defendants-Appellees.

Docket No. 12748.

Court of Appeals of Michigan, Division No. 2.

June 2, 1972.

Released for Publication Aug. 23, 1972.

James A. Crippen, Crippen, Dever & Urquhart, Ann Arbor, for plaintiffs-appellants.

Jerold D. E. Lax, City Atty., Ann Arbor, for City of Ann Arbor.

Dennis R. Pollard, Dearborn, for Ford.

Before QUINN, P.J., and V. J. BRENNAN and TARGONSKI, ^* JJ.

PER CURIAM.

Plaintiffs appeal from the trial court's grant of summary judgment (GCR 1963, 117.2(1)) in favor of defendants. We affirm.

Plaintiffs are licensed by defendant city under its ordinance to operate taxicabs in the city. Under authority of the mass transportation authorities act (M.C.L.A. § 124.351 et seq.; M.S.A. § 5.3475(1) et seq.), defendant city has instituted and operates an experimental transportation system known as 'Dial-a-Ride'. Plaintiffs' action sought to restrain defendants, individually or collectively, from establishing and operating 'Dial-a-Ride'.

On appeal, plaintiffs contend that 'Dial-a-Ride' is subject to the city's taxicab ordinance; that plaintiffs are denied due process of law and equal protection of the law through the operation of 'Dial-a-Ride' as proposed by defendants.

Chapter 85, article III, § 7:161 of the city's taxicab ordinance reads: 'No Person shall operate any taxicab in the city of Ann Arbor without first having obtained a certificate of public convenience and necessity from the board authorizing such operation.' (Emphasis added) The language of the ordinance precludes its application to defendant city, United Railroads of San Francisco v. City and County of San Francisco, 249 U.S. 517, 39 S.Ct. 361, 63 L.Ed. 739 (1919).

The basic premise from which plaintiffs advance their due process and equal protection arguments is rights they assume they have as licensees. We find that basic premise to be false. Defendant city has reasonable control of its streets, Const.1963, art. 7, § 29. Plaintiffs have no right to use the streets without the consent of the city, Melconian v. Grand Rapids, 218 Mich. 397, 188 N.W. 521 (1922). The licenses plaintiffs rely on are nothing more than a privilege to do what is prohibited without such licenses, C. F. Smith Co. v. Fitzgerald, 270 Mich. 659, 259 N.W. 352 (1935).

In establishing and operating 'Dial-a-Ride', defendant city is doing what the mass...