Melconian v. City of Grand Rapids

• Decision Date: 05 June 1922
• Docket Number: No. 124,Jan. Term, 1922.,124
• Citation: 218 Mich. 397,188 N.W. 521
• Parties: MELCONIAN et al. v. CITY OF GRAND RAPIDS.
• Court: Michigan Supreme Court

218 Mich. 397

188 N.W. 521

MELCONIAN et al.

v.CITY OF GRAND RAPIDS.

No. 124, Jan. Term, 1922.

Supreme Court of Michigan.

June 5, 1922.

Appeal from Superior Court of Grand Rapids, in Chancery; Major L. Dunham, Judge.

Suit by Harry Melconian and others against the City of Grand Rapids, to enjoin the enforcement of an ordinance. Decree for plaintiffs, and defendant appeals. Reversed, and complaint dismissed.

Argued before FELLOWS, C. J., and WIEST, STONE, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Ganson Taggart, of Grand Rapids, for appellant.

Shelby B. Schurtz, of Grand Rapids, for appellees.

SHARPE, J.

On August 22, 1921, the city of Grand Rapids adopted an ordinance ‘Providing for and Regulating the Operation of Taxicabs' in that city. The plaintiffs, who ‘are persons operating motor vehicles for hire,’ seek to restrain its enforcement by injunction.

In section 1, the word ‘taxicab’ is defined to ‘mean and include any motor vehicle engaged in the business of carrying persons for hire.’ Section 2 makes it unlawful to operate a taxicab on the streets of the city without first obtaining a license to do so. An application for a license on a form provided must be filed with the city clerk. Certain information regarding the applicant and the type of car must be set forth therein. It is provided that the city clerk shall refer all applications to the city manager--

‘who shall cause an investigation to be made of the fitness of the applicant as to character and ability, and shall transmit the application with his recommendation to the city commission. If in the opinion of the city commission the person making the application is a proper person, both by experience and character, they may authorize the granting of a lecense,’ etc.

Section 4 contains somewhat similar provisions regarding the granting of permits to drivers of such vehicles.

These sections are claimed to be invalid, because they attempt ‘to confer upon the city commission the arbitrary power to grant or refuse a license, according to its whim or caprice.’ The trial court sustained this claim, and his decree declaring the ordinance void was largely based thereon.

[1] The apparent confusion in the authorities is, in part at least, due to a lack of consideration of the subject-matter sought to be controlled and the source of such control. There are many occupations and kinds of business which, under the police power and the authority delegated by the Legislature, may be regulated by the city authorities. Such regulation is permitted in the interest of the public peace, health, morals, and general welfare of the city. While an individual has an inherent or natural right to engage in any lawful business on his own property, yet the nature of the business sought to be carried on may be such as to render it subject to regulatory control. Ordinances regulating slaughter houses, pawnbrokers, junk dealers, livery stables, pool rooms, places where articles of food liable to infection are kept for sale, and the like, have been sustained as a valid exercise of such power. Nuisances may also be abated. As to some of these, the power must be cautiously and sparingly exercised. As to others, there exists a greater control. As to still others, the business may be suppressed or prohibited, wholly or conditionally, as the particular facts may justify. Further discussion of this power seems unnecessary, as the rules of law governing it seem well established. It is sufficient to say that the regulation must be reasonable, without discrimination, and fair to all alike.

The subject-matter of the ordinance here considered is the use of the public streets. Section 28 of article 8 of our state Constitution reads as follows:

‘No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such vity, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.’

The power conferred upon a city by this section was considered by this court in People v. McGraw, 184 Mich. 233, 150 N. W. 836, and in Brennan v. Recorder of Detroit, 207 Mich. 35, 173 N. W. 511. In the former case, it was said:

‘By giving the language of the whole section its ordinary and natural meaning, public utilities were placed under control of the local authorities, and the local authorities may control within reason the use of their streets for any purposes whatsoever not inconsistent with the state law.’

It was also held that any attempt on the part of the state Legislature to take away from cities such reasonable control was unconstitutional and void.

Taxicabs, as defined in the ordinance, are common carriers. Mr. Thompson, in his work on Carriers of Passengers, p. 26, note 1, says:

‘A common carrier of passengers is one who undertakes for hire to carry all persons indifferently who may apply for passage. To constitute one a common carrier it is necessary that he should hold himself out as such. This may be done not only by advertising, but by actually engaging in the business and pursuing the occupation as an employment.’

A public moving van was held to be a common carrier in Lawson v. Judge of Recorder's Court, 175 Mich. 375, 141 N. W. 623,45 L. R. A. (N. S.) 1152, and in Terminal Taxicab Co. v. Dist. of Col., 241 U. S. 252, 36 Sup. Ct. 583, 60 L. Ed. 984, Ann. Cas. 1916D, 765. One who holds himself out as a cartman, drayman, or truckman, ready to carry goods for hire for all who may wish to employ him, was held to be a common carrier in Lloyd v. Haugh, etc., Co., 223 Pa. 148, 72 Atl. 516,21 L. R. A. (N. S.) 188.

‘A taxicab company, following the business of transporting persons for hire and holding itself out to carry one and all, is a common carrier of passengers, and is subject to all the liabilities of such a carrier.’ Syllabus, Van Hoeffen v. Columbia Taxicab Co., 179 Mo. App. 591, 162 S. W. 694.

The authorities are collected and discussed at length in Cushing v. White, 101 Wash. 172, 172 Pac. 229, L. R. A. 1918F, 463, and note to the latter.

The streets of the city belong to the public. For ordinary use and general transportation and traffic, they are free and common to all, and any control sought to be exercised over them must be such as will not defeat or seriously interfere with their enjoyment. The plaintiffs, however, as common carriers, have no right to such use for private gain without the consent of the city. Their use is accorded as a mere privilege, and not as a matter of inherent or natural right. Memphis v. State, 133 Tenn. 99, 179 S. W. 635, L. R. A. 1916B, 1151, Ann. Cas. 1917C, 1045;Desser v. Wichita, 96 Kan. 820, 153 Pac. 1194, L. R. A. 1916D, 246;Greene v. San Antonio (Tex. Civ. App.) 178 S. W. 6;Hadfield v. Lundin, 98 Wash. 657, 168 Pac. 516, L. R. A. 1918B, 909, Ann. Cas. 1918C, 942; Ex parte Dickey, 76 W. Va. 576, P. U. R. 1915E, 93,85 S. E. 781, L. R. A. 1915F, 840;In re Hoffert, 34 S. D. 271, 148 N. W. 20,52 L. R. A. (N. S.) 949;Huston v. City of Des Moines, 176 Iowa, 455, 156 N. W. 883.

The distinction between the use by the public in the usual way for pleasure or business and as a place or instrumentality for business for private gain is fundamental. While, as to the former, the power to regulate must be sparingly exercised and only when necessary in the public interest, as to the latter the right to use may be given or withheld. This distinction is made clearly apparent when the decision in Matter of Frazee, 63 Mich. 396, 30 N. W. 72,6 Am. St. Rep. 310, on which plaintiffs strongly rely, is read in connection with Love v. Judge of Recorder's Court, 128 Mich. 545, 87 N. W. 785,55 L. R. A. 618. In the Frazee Case, the right to the use of the streets for the purposes of a parade was in question. This was said to be a natural or inherent right, subject only to reasonable regulation, and it was held that the by-law which left ‘the power of permitting or restraining processions and their courses to an unregulated official discretion’ was invalid. The Love Case involved an ordinance prohibiting the use of the streets or public places for the purposes of public addresses, ‘except in accordance with a permit from the mayor, such permit to designate the time and place’ when an address might be made. The Frazee Case was relied on as controlling. The ordinance was held to be valid and the distinction here sought to be made between permissive use and use as a matter of right was pointed out.

The only restriction on the control, which the city may exercise over its streets under the constitutional provision, is that it must be reasonable. The authority to grant a license must be conferred upon some person, body, or commission. When the regulation affects private rights, it is held, as a general rule, that the requirements for obtaining a license must be so specifically pointed out in the ordinance as to permit all applicants who comply therewith to secure a license as a matter of right, and that an arbitrary discretion to grant or refuse may not be conferred. In cases where the public health or safety is involved, this rule has been relaxed and a provision conferring discretionary power has been sustained. Lieberman v. Van De Carr, 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305, and Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018. In the former, an ordinance providing that:

‘No milk shall be received, held, kept, either for sale or delivered in the city of New York, without a permit in writing from the board of health’

-was attacked because it conferred ‘absolute...