Lane v. Whitaker

• Decision Date: 29 August 1921
• Citation: 275 F. 476
• Court: U.S. District Court — District of Connecticut
• Parties: LANE et al. v. WHITAKER, Pros. Atty., et al.

275 F. 476

LANE et al. v. WHITAKER, Pros. Atty., et al.

United States District Court, D. Connecticut.

August 29, 1921

This suit is instituted by the several complainants for an injunction seeking to restrain the prosecuting attorneys of the respective counties, the chief of police of the city of New Haven, and the superintendent of the state police of Connecticut, from enforcing a law recently enacted in the State of Connecticut, which makes it a penal offense for the complaints to carry on their business as jitney bus carriers. Chapter 77, Public Acts 1921, is found in the margin. ^[1]

The Connecticut Company, operating trolley lines in the territory affected by this transportation through jitney service, has appeared by intervention and is now a party to this suit.

Robert J. Woodruff and Arthur Klein, both of New Haven, Conn., for plaintiffs.

DeForest & Klein, of Bridgeport, Conn., for parties similarly interested.

George D. Watrous, of New Haven, Conn., and Walter C. Noyes, of New York City, for the Connecticut Co.

Arnon A. Alling, State's Atty., and Edwin S. Pickett, Pros. Atty., both of New Haven, Conn. (Joseph F. Berry, of Hartford, Conn., and Seth W. Baldwin, of New Haven, Conn., of counsel), for defendants.

William F. Healey, Atty. Gen., of Connecticut, for superintendent of police.

Before MANTON, Circuit Judge, and THOMAS and KNOX, District Judges holding the court pursuant to section 256 of the Judicial Code (Comp. St. Sec. 1233).

MANTON Circuit Judge (after stating the facts as above).

The plaintiffs have been engaged in the business of operating public motor vehicles in the city of New Haven and own motor busses for this service. They therefore have a property investment in this equipment. They charge a fare to the passengers carried by them. The defendants, except the Connecticut Company, are public officials who have as their duty the enforcement of the statute which is here considered. The Connecticut Company is interested in the litigation for the reason that it has franchise grants and runs trolley cars along the streets of New Haven, and is now in competition with the plaintiffs' jitney busses.

The streets are the property of the public. Davis v Mass., 167 U.S. 43, 17 Sup.Ct. 731, 42 L.Ed. 71. They are under the control of the public, and therefore subject to the police powers of the state excepting where the power is delegated by statute upon a municipality or other agency. Hendrick v. Maryland, 235 U.S. 611, 35 Sup.Ct. 140, 59 L.Ed. 385; Nolen v. Riechman (D.C.) 225 F. 812. The right to exercise the police power is a continuing one, and may be exercised so as to meet the ever-changing conditions and necessities of the public. Those who make investment for this purpose, as the plaintiffs, do so and hold their property and the right to use it subject to such other and different burdens as the Legislature may reasonably impose, for the safety, convenience, and welfare of the public. The state Legislature may regulate the use, by automobiles and motor cars, of the highways of the state. Hendrick v. Maryland, 235 U.S. 611, 35 Sup.Ct. 140, 59 L.Ed. 385. It may also authorize municipalities to regulate the use of streets by vehicles and may exclude vehicular traffic. Barnes v. Essex Co. Park Comm., 86 N.J.Law, 141, 91 A. 1019.

The Legislature of the state of Connecticut by the enactment referred to (chapter 77 of the Public Acts of 1921) provided for the use of the highways through the granting of licenses for persons situated as are the plaintiffs. It declared the operation of the jitney to be that of a common carrier, and subjected persons or corporations so operating jitneys to the restriction of the Public Utilities Commission. It provided that reasonable rules and regulations should be made by the commission with respect to routes, fares, speeds, schedules, continuity of service, and the convenience and safety of passengers and the public. It required the person, association, or corporation to obtain a certificate from the Public Utilities Commission, specifying the route over which the jitney may operate and the service to be furnished, and that the public convenience and necessity require its operation over such route. It required written application be made and notice to be given to the towns through which the route or part thereof was proposed, and to any common carrier operating over any portion of such route or over a route substantially parallel thereto. A public hearing is provided for, as is the method of giving notice thereof. The commission has authority to grant the certificate of necessity and convenience, also the licensing of its operation, and has jurisdiction over the lighting, safety, and sanitary conditions to prevail. Provision is then made for an applicant who feels aggrieved by the action of the Public Utility Commission to appeal to the superior court of the state in the manner provided for in such appeals from orders relating to street railway corporations for a violation of any order or regulation adopted or established under the provision of the act. A fine of $100 or imprisonment for not more than 60 days or both is provided for a breach of the act. The Public Utilities Commission is authorized to make such rules and regulations; to hold hearings and issue certificates as may be required under the provisions of the act.

In this complaint the constitutionality of this act is questioned. The superior court of the state has held the act constitutional. Derby Bus Corp. v. Whittaker et al., decided January 21, 1921, in an opinion filed by Judge Keeler. It is claimed that the statute violates the federal Constitution for the following reasons: First, that the act confers arbitrary powers on the Public Utilities Commission, and permits the commission to discriminate against the plaintiffs, and therefore denies to them the equal protection of the laws; second, the statute constitutes an unlawful delegation of legislative powers to the administrative body; third, that it is unconstitutional, and violates the due process of law guaranteed by the Fourteenth Amendment, in that it confers an unregulated discretion and arbitrary power upon the Public Utilities Commission to grant or refuse or revoke a license; fourth, the statute in not requiring the commission to grant a hearing in the issuance, refusal, or revocation of a license, denies due process of law.

We think the several objections urged as to the constitutionality of the act are not well founded. As to the first, the claim is that, because the statute provides that all jitney busses are common carriers and shall be subject to the jurisdiction of the Public Utilities Commission, it discriminates against the plaintiffs. The citizen has the right of travel upon the highways, and may transport his property thereon in the ordinary course of life and business but this is a very different thing than permitting the highway to be used for commercial purposes, as a place of business, for private gain, in running jitney busses. The right, common to all, to the use of highways, is the ordinary use made thereof; but where, for private gain, a jitney owner wants a special and extraordinary benefit from the highway, to use it for such commercial purpose, the Legislature may, in the exercise of its police powers, wholly deny such use or it may permit it to some and deny it to others, and this is because of the extraordinary nature of such use. And where the Legislature grants the permission to use the highway, it may do so under...