Long's Baggage Transfer Co v. Burford

• Decision Date: 18 March 1926
• Parties: LONG'S BAGGAGE TRANSFER CO. v. BURFORD et al.
• Court: Virginia Supreme Court

132 S.E. 355

LONG'S BAGGAGE TRANSFER CO.

v.BURFORD et al.

Supreme Court of Appeals of Virginia.

March 18, 1926.

Error to Corporation Court of Lynchburg.

Bill by Long's Baggage Transfer Company against Etta W. Burford and others. Decree sustaining a demurrer to and dismissing the bill, and plaintiff brings error. Reversed and rendered.

Lee, Martin & Gregory and Leon Goodman, all of Lynchburg, for plaintiff in error.

Strode & Edmunds, of Lynchburg, for defendants in error.

WEST, J. The council of the city of Lynchburg passed a general ordinance regulating the business of operating motor vehicles for hire. So much of the ordinance as is material here reads as follows:

"Taxi and Public Automobile Stands.

"(k) Stands for passenger motor vehicles for hire may be assigned to the owner or operator of such vehicles by the chief of police, which said stands shall be at such places within the city as in the judgment of said chief of police will best serve the convenience of the public.

"(2) Any such owner or operator of such vehicles desiring to have such stand assigned him shall make application therefor in writing to the chief of police, stating in such application the location of the stand desired by him and the number of such vehicles he desires to occupy such stand and shall file with said application the written consent of the owner or person in control of the property abutting such stand. No application shall be granted by said chief of police unless such consent of the owner or person in control of the abutting property be filed with him by said applicant. Any such consent may be revoked by said owner or person in control, upon giving ten days notice to such owner or operator of said vehicles, and filing a copy thereof with said chief of police.

"(3) Any such applicant who has secured the consent in writing of the owner or person in control of the property abutting the stand applied for, and whose application for such stand has been refused by said chief of police, may appeal to the police justice, who after hearing all testimony that may be submitted to him, shall grant said application if in his judgment the public convenience will be served. If said police justice is of the opinion that such public convenience will not be served, then he shall dismiss such appeal.

"(4) This subsection shall not be construed to prevent or interfere with the driver of any vehicle for temporarily stopping at any convenient place for the purpose of discharging or receiving passengers."

The ordinance also provides penalties for each violation of any of its provisions.

Long's Baggage Transfer Company, the complainant, which operates passenger motor vehicles for hire in the city of Lynchburg, pursuant to the foregoing ordinance, secured the written consent of the owners and managers of the Virginia Hotel and the Hotel Carroll in that city, and was assigned by the chief of police a private taxicab stand infront of the Virginia Hotel for two taxicabs and in front of the Hotel Carroll for one taxi-cab.

Forthwith Etta W. Burford and others, the defendants, who operated taxicabs in the city, took possession of the stands assigned the complainant, and declared their intention to occupy them without regard to the rights of the complainant.

Complainant thereupon filed a bill in equity against the defendants, setting forth the facts and its rights in the premises, and praying that defendants be permanently enjoined and restrained from occupying with their cabs and vehicles any part of either of said stands, except so far as they may have proper occasion to temporarily stop in said stands for the purpose of receiving or discharging passengers.

The defendants demurred to, and answered, the bill. The decree sustaining the demurrer and dismissing the bill is before us for review.

The demurrants contend:

(1) That the ordinances relied on are ultra vires, unconstitutional, and void; and

(2) That, if valid at law, violations thereof do not furnish ground for injunctive relief.

(a) What authority has the council of the city of Lynchburg over its streets, and are the ordinances in question valid?

The charter of Lynchburg contains the general welfare clause, and, in addition, provides in subsection 26 of section 9, chapter 6, that the council is authorized—

"To regulate and control * * * the hiring or use for pay of carriages, carts, wagons and drays, " and by subsection 9 of section 9, chapter 6, "to take care, supervision and control of the streets, squares and commons." Section 9, chapter 6, also provides that the council, "shall have all the general powers vested in it by the Constitution * * * and laws of the state, and shall have power to enact ordinances providing for the exercise within its jurisdiction of all police power which the state may exercise under the Constitution, except such as may be specially denied cities by act of the General Assembly."

The council has absolute control of the streets of the city for the public interest. Every citizen has the common right to travel upon, and transport his property over, them in the ordinary course of business. This right the council may reasonably regulate in the public interest, without undue discrimination, but cannot abrogate it. Persons desiring to use the streets to conduct a transportation business for private gain are on a different footing. No one has the right to conduct such business over the streets of the city without the permission of the municipal authorities. They have the right to grant such privilege to one and refuse another, or withhold it from all. If granted, they have the right to regulate it. Having the right to refuse defendants the privilege to use the streets for the conduct of a transportation business for private gain, it cannot be said that an ordinance under which one of their competitors secured the assignment of private cab stands has deprived defendants of any interest or constitutional right to use the streets of the city.

This court, speaking through Burks, J., in Taylor v. Smith, 124 S. E. 259. 264, 140 Va. 237, quoted with approval the following from Ex parte Dickey, 85 S. E. 781, 76 W. Va. 576, L. R. A. 1915F, 840:

"The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus. The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual and extraordinary. As to the former, the extent of legislative power is that of regulation; but as to the latter, its power is broader. The right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature."

Further (124 S. E. 263, 140 Va. at page 234) Judge Burks says:

"The right to use the streets of a city as a common carrier for hire is a privilege and not an inherent right, and may be granted or refused by the city, in the exercise of its police power, at its pleasure"—citing many authorities.

In Schultz v. City of Duluth, 203 N. W. 449, the Supreme Court of Minnesota, passing upon the validity of an ordinance to regulate the intracity motor bus business in the city, which did not allow them to operate on streets where the street cars operate on double tracks, held the ordinance was not void as discriminatory or as class legislation, since no one has the right as a matter of course to conduct a private business upon public streets.

In Odell v. Bretney, 71 N. Y. S. 449, 62 App. Div. 595, the plaintiffs obtained a special license from the proper authorities of New York City, as provided by ordinance of the city, to maintain, in the street upon which Rector's Hotel is located, a hack stand primarily for use by the patrons and guests of the hotel, and had obtained from the hotel permission to conduct their business in the street opposite the premises, pursuant to the license granted. Defendants, who were licensed to make use of the public hack stands designated by city ordinances, attempted to make use of the space occupied by the plaintiffs. Plaintiffs were awarded an injunction which was made permanent, enjoining the defendants from making use of the stands assigned to the plaintiffs. Disposing of the defendants' contention that the city had no right to grant the special privilege, the court said:

"The city authorities have only a limited right to permit the use of the public streets by private parties, and ordinarily some necessity must exist to authorize an obstruction therein, * * * but the owner of property has the right to its beneficial use and enjoyment; and, in order that such result may be obtained, the city has authority to allow a temporary occupation of the streets where the privilege granted is reasonable, and does not unnecessarily interfere with the use of the streets by the public."

The ordinance in question, under which the private stands were established at the two Lynchburg hotels, operates in the public interest. It protects the rights of the abutting owner, and preserves to all licensed operators of cabs the right to receive and discharge passengers at said stands. The stands do not obstruct the use of the streets as public thoroughfares, and the assignment of the space to the complainant authorizes it to stand its cabs there while not in actual service, thereby enabling the traveling public to secure conveyances when desired from the hotels to the railroad stations and other parts of the city. We do not wash to be understood as deciding that the ordinance would be invalid without the clause requiring the written consent of the owner or person in control of the abutting property, provided it was so worded as to prevent interference with the rights of such abutting property owners.

In Mader v. Topeka, 189 P. 969, 106 Kan. 867, 15 A. L. R....