Omaha & Council Bluffs Street Railway Company v. City of Omaha

• Decision Date: 19 March 1926
• Docket Number: 25225
• Citation: Omaha & Council Bluffs Street Railway Company v. City of Omaha, 208 N.W. 123, 114 Neb. 483 (Neb. 1926)
• Parties: OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE, v. CITY OF OMAHA ET AL., APPELLANTS
• Court: Nebraska Supreme Court

208 N.W. 123

114 Neb. 483

OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE, v. CITY OF OMAHA ET AL., APPELLANTS

No. 25225

Supreme Court of Nebraska

March 19, 1926

APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE.Reversed and dismissed.

Judgment reversed and action dismissed.

John P Breen, for appellants.

John L Webster, contra.

Heard before MORRISSEY, C.J., DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

EBERLY, J.

Upon the petition of plaintiff, a Nebraska corporation engaged in the operation of a street car system in Omaha under a franchise not exclusive by its terms, a permanent injunction was granted by the district court for Douglas county, Nebraska, inhibiting the city of Omaha and its officials from in any manner enforcing ordinance No. 12696, passed and approved June 30, 1925, and from issuing permits or licenses thereunder to any person, firm, or corporation, to operate auto-busses upon the streets of said city as common carriers.From this judgment the defendants have appealed.

OrdinanceNo. 12696, against which this action proceeds, defines, and regulates the use of auto-busses as common carriers of persons within the city of Omaha.It provides, among other requirements, for investigation of applicants seeking to engage in the business defined, either as proprietors of vehicles sought to be employed, or as drivers thereof; provides rules to be observed by those engaged in said employment; confines operations of licensees to routes having fixed termini; restricts charges for services to a definite sum; requires as a condition precedent to commencement of business the filing of a good and sufficient bond, conditioned for the payment of all damages sustained by any person due to negligence committed in the operation of the auto-busses licensed; prohibits under penalties any person from engaging in said business without compliance with the terms of the ordinance, including receipt from proper authorities of a written permit or license, and by its terms subjects the permit so granted to revocation by the city authorities for failure to observe the terms and conditions of the ordinance; provides that "no permit granted under this ordinance shall give the holder thereof a vested right to use any of the streets of the city, nor operate as an estoppel against the city in the event the city should, at any time, see fit to modify or amend the provisions hereof, or entirely revoke the right to operate under such permit by modification or repeal of this ordinance."

The plaintiff contends that the city of Omaha has no inherent or statutory power to issue permits to auto-busses to operate as common carriers upon its streets; that the ordinance before us is an attempt by the city to confer upon licensees, to whom permits might be granted therefor, "a franchise;" that, assuming this power to exist, it is necessary in order to accomplish the end sought that the provisions of section 3719, Comp. St. 1922, be complied with; that this was not done, and the ordinance, in the form attempted, is wholly unauthorized by law and void; that no rights could be conferred upon the permit-holders thereunder to, in any manner, compete with the plaintiff in carrying on the business of common carriers of passengers on the public streets of Omaha; that any acts of competition by any such parties would be an impairment or infringement of the rights granted to plaintiff by the terms of the charter; and that the mayor and council can be and are lawfully, therefore, restrained from attempting to proceed under the terms of said ordinance.

It may be said in passing that the court has not overlooked the contentions of plaintiff based upon the alleged bad faith and improper motives of certain of the defendant officers.It is thought, however, that this court may not review the legislative acts of the mayor and council of the city of Omaha if the same are within its constitutional and statutory limitations.In other words, it is well settled that the motives of the city council in enacting an ordinance cannot, as a general rule, be inquired into by the courts.Enders v. Friday, 78 Neb. 510, 111 N.W. 140;Huston v. City of Des Moines, 176 Iowa 455, 156 N.W. 883;Schoenfeld v. City of Seattle, 265 F. 726;Soon Hing v. Crowley, 113 U.S. 703, 28 L.Ed. 1145, 5 S.Ct. 730.

In the consideration of the question of the inherent or statutory powers conferred upon municipalities of the metropolitan class to accomplish the result intended, evidenced solely by the terms of the ordinance involved in this controversy, our attention is challenged to the inherent nature of the right involved to which this ordinance applies.It is to be remembered that the power to create and confer a right not heretofore existing is distinct and different from permitting under proper regulation the exercise of power possessed by the citizens generally of common right.Is therefore the carriage of persons in auto-busses over the public streets of Omaha by common carriers exercised solely pursuant to grant, or is it, in the absence of legislation, the exercise of a common right?In other words, is the ordinance a grant or a regulation?

"A highway is a public way for the use of the public in general, for passage and traffic, without distinction.* * * The restrictions upon its use are only such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement, and the inconveniences must be submitted to when they are only such as are incident to a reasonable use under impartial regulations.* * * A highway established for the general benefit of passage and traffic must admit of new methods of use whenever it is found that the general benefit requires them; and if the law should preclude the adaptation of the use to the new methods, it would defeat, in greater or less degree, the purpose for which highways are established."Macomber v. Nichols, 34 Mich. 212.A public street is a public highway.

"The right to use the public highways of the state by the ordinary and usual means of transportation is common to all members of the public without distinction, and extends to those engaged in the business of carrying passengers or freight for hire by such ordinary and usual means of transportation, as well as to individuals pursuing a strictly private business, subject to the power of the state, by legislative enactment, to impose reasonable and impartial regulations upon such use, which power may be delegated by the legislature to the governing bodies of municipal corporations.13...