McGuire v. Wilkerson
| Decision Date | 02 October 1922 |
| Docket Number | A-4387. |
| Citation | 209 P. 445,22 Okla.Crim. 36 |
| Parties | MCGUIRE v. WILKERSON, CHIEF OF POLICE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Habeas corpus will lie to discharge a prisoner restrained of his liberty by virtue of a conviction based upon a void ordinance.
The use of the streets as a place of business, or as the instrumentality of business is accorded as a mere privilege and not as a matter of natural right.
A valid ordinance stands on the same footing as a statute, and its construction is for the court. Whether or not an ordinance is reasonably necessary is committed in the first instance to the municipal legislative body, and the ordinance when passed is presumptively valid.
A city having authority to pass reasonable regulations governing automobiles operated upon its streets for hire, the appellate court would not be authorized to declare the provisions of an ordinance regulating the use of the streets for such purpose unreasonable, unless they clearly appear to be so.
For provisions of a city ordinance regulating the parking of automobiles and other vehicles, and limiting and providing a zone wherein automobiles, jitneys, and other vehicles conveying or transporting passengers for hire, and trucks and drays engaged in the business of hauling freight or merchandise for hire, shall not park, held not to deprive owners and operators of such vehicles of their liberty or property without due process of law, and not to be unreasonable and discriminatory, see body of opinion.
Application for habeas corpus of A. McGuire against W. R. Wilkerson Chief of Police of the City of Pawhuska, Okl. Writ denied.
Petitioner A. McGuire, applies for a writ of habeas corpus, alleging that he is unlawfully restrained by the above-named respondent, chief of police of the city of Pawhuska, Okl that the cause of said restraint is as follows: That petitioner was, on the 19th day of June, 1922, convicted in the police court of said city of a violation of sections 1 and 3 of Ordinance No. 36-M of the city of Pawhuska, and sentenced to pay a fine of $16 and $4 costs, and remanded to the custody of said respondent chief of police until said fine and costs were paid.
Petitioner alleges that said ordinance is void and without effect, in that it deprives him of liberty and of the use of his property without due process of law; that said petitioner was engaged in the business of transporting passengers by automobile for hire within and without the city of Pawhuska, Okl., and that said ordinance permits all persons owning and using automobiles, jitneys, trucks, and drays to park the same and carry on their business and occupation in the district prohibited to those using such vehicles for hire; that said prohibited district, as defined by the ordinance, includes the entire business district of the city of Pawhuska, except two or three minor businesses carried on away from the business district on side streets; that if said ordinance is enforced against petitioner it will drive him from the business district of Pawhuska and compel him to park his cars and carry on his business in the residence district; that affiant carries on his business in an orderly, quiet, and peaceable manner, commits no nuisance, and molests no one by reason of his business; that the attempt to enforce Ordinance No. 36-M is for the sole purpose of depriving petitioner of his business and destroying the only means of transportation open to the public in the city of Pawhuska; that petitioner is one of several engaged in that line of business, and against whom the city is now attempting to enforce the ordinance; that on the 19th day of June, 1922, petitioner applied to the district judge of the Twenty-Fourth judicial district for a writ of habeas corpus, praying for his release from said restraint, but that upon a hearing said district judge discharged the writ and remanded petitioner to the custody of this respondent. Petitioner attaches to his petition a copy of the order of the district judge in said proceeding, also a copy of Ordinance 36-M.
As a return and answer to the writ, the respondent admits that he is chief of police of the city of Pawhuska, and that he has custody of the person of petitioner, and holds such custody by virtue of the authority of a commitment issued by the judge of the police court of said city on a conviction for a violation of Ordinance 36-M, and that the copy of the ordinance attached to the petition as an exhibit is a true and correct copy thereof; that said ordinance has been in full force and effect in said city since the 9th day of June, 1922; that on the 17th day of June, 1922, petitioner herein was duly and regularly informed against for a violation of the terms and provisions of said ordinance, as evidenced by a copy of complaint attached to answer; that on the 19th day of June, 1922, petitioner was duly and regularly adjudged guilty of violating sections 1 and 3 of said ordinance, and fined $16 and costs, taxed at $4, and committed to jail until said fine and costs were paid, as appears by a transcript of the docket of the police court of said city, copy of which is attached to respondent's answer.
Further answering, respondent states that the area in said city in which automobiles and other motor vehicles engaged in the occupation of conveying passengers for hire is prohibited is limited to the congested district of said city, the location of said restricted area being shown upon a map or plat of said city, which is attached to the answer; that as shown on said plat, Main street is 80 feet in width from property line to property line, Osage avenue is 70 feet in width from said lines, Ki-he-kah avenue is 70 feet in width from said lines Sixth street is 80 feet in width from said lines; that upon each of said streets and avenues sidewalks on each side thereof extend 12 feet from the property line, leaving traffic ways on 80-foot streets 56 feet wide, and on 70-foot streets 46 feet wide, and at places such traffic ways are less than that; that the means of transportation in said city is almost exclusively by automobile or other motor vehicles, and that by reason thereof that the traffic on such streets and avenues, and the parking of such vehicles at the curb, results in practically a congestion of traffic on said streets and avenues, to the extent that the peace, comfort, health, and safety of the inhabitants of said city and those lawfully using its streets and avenues and traffic ways is endangered; that as a part of the plan to relieve such congestion, and to otherwise facilitate traffic on such streets and avenues, the board of city commissioners enacted Ordinance No. 36-M, and the enactment of said ordinance was solely for the purpose of relieving traffic congestion in said restricted area, and not otherwise, and this, respondent is informed and believes, was without prejudice to petitioner or others engaged in operating automobiles, trucks, or other conveyances engaged in the business or occupation of conveying passengers for hire; that there are approximately 50 automobiles and other conveyances subject to the provisions of said ordinance, and that permanent parking and the operating of places of business within the congested district, being the restricted area as set out in the ordinance, has tended seriously to interfere with traffic on said streets and avenues, and is against the peace, health, comfort, and safety of the inhabitants of said city and others rightfully entitled to use the traffic ways of said streets and avenues; that the population of said city is approximately 9,000 inhabitants, and is steadily increasing; that it covers an area of approximately two square miles; that, as shown on the map or plat, the area restricted by the ordinance extends to a very small portion of the business section of said city; that a large number of desirable stands for those engaged in operating automobiles for hire, and being in the business district of said city, are not within the...
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