People's Transit Co. v. Henshaw

• Decision Date: 28 May 1927
• Docket Number: No. 7529.,7529.
• Citation: 20 F.2d 87
• Parties: PEOPLE'S TRANSIT CO. v. HENSHAW et al.
• Court: U.S. Court of Appeals — Eighth Circuit

20 F.2d 87 (1927)

PEOPLE'S TRANSIT CO. v. HENSHAW et al.

No. 7529.

Circuit Court of Appeals, Eighth Circuit.

April 18, 1927.

Rehearing Denied May 28, 1927.

Warren K. Snyder, of Oklahoma City, Okl. (Edward C. Snyder, of Oklahoma City, Okl., on the brief), for appellant.

J. B. Dudley, of Oklahoma City, Okl. (Kent W. Shartel, of Oklahoma City, Okl., on the brief), for appellees.

Before STONE and VAN VALKENBURGH, Circuit Judges, and TRIEBER, District Judge.

STONE, Circuit Judge.

This is an appeal from a temporary injunction restraining appellant from operating busses over the streets of Oklahoma City without first complying with every requirement of Ordinance No. 2987 of that city and from operating in violation thereof.

The complaint was filed March 25, 1926, by the receivers operating the street railway system in that city. The receivers, in conjunction with street cars, were operating busses as a part of their general transportation system within the city. Appellant (defendant below) was an independent company operating busses within the city. The bill alleged that the appellant was controlled, in its right to operate in the city, by Ordinance No. 2987; that it had not complied with any of the requirements thereof; that it operated on streets within the limits adjacent to car lines forbidden by such ordinance; that such operation was causing serious loss in revenue to the receivers; that the receivers claimed that such ordinance was not applicable to them but, as the city authorities claimed otherwise, they had complied fully therewith. A plea to the jurisdiction, a "response" and an answer were filed and the case heard on affidavits.

Appellant presents here several points:

(1) That the act of 1925 conferred no new powers on the receivers.

(2) That the act of 1925 is invalid because discriminatory.

(3) That Ordinance No. 2987 is invalid.

(4) That Ordinance No. 2987, as enforced, is invalid.

(5) That appellees had no property right affected entitling them to injunctive relief.

(6) That appellees have not complied with the ordinance, hence, do not come with clean hands to seek enforcement thereof against appellants.

To understand the controversy, it is necessary to have in mind the state of the law, state and city, at the time the bill was filed. In 1919, the Legislature passed its first act (Laws 1919, c. 129) on the subject of bus transportation within cities. In 1924 (Laws Sp. Sess. 1923-1924, c. 105) this act was amended. In 1925, an act (Laws 1925, c. 97) was passed specially applicable to use of busses by existing electric street railways companies. On March 4, 1924, the city passed an ordinance, No. 2713, which was, August 21, 1924, replaced by Ordinance No. 2797. February 9, 1926, another ordinance, No. 2987, was passed.

The act of 1919, as amended by the act of 1924, was as follows:

"Any person, firm or corporation may use automobiles or autobusses for the carrying of passengers for hire within any city of this state subject to the provisions hereinafter contained and reasonable regulation and control by the legislative authority of the city in which said business is conducted, which regulation may include the requiring of a policy of insurance or bond executed by a surety corporation authorized to do business in this state, as surety, covering liability in case of each automobile or autobus, the requiring of a definite schedule showing the route to be traversed and the time of all trips to be made, and which regulation may prohibit the carrying of passengers outside of said automobile or autobusses and may include any other requirement reasonable in its nature."

"No city shall have power to enact ordinances or regulations against the operating of automobiles or autobusses or jitney lines for the carrying of passengers by charging an unreasonable occupation tax. No city shall prescribe, enact or enforce any ordinance or regulation concerning the business of operating such vehicles for hire which is wholly and clearly prohibitive or unreasonable in its character: Provided any city may exclude the operation of automobiles for hire upon and along streets occupied and used by a street car line paralleling the same, and upon and along the first two streets on either side of a street occupied and used by a street car line; provided this act shall not apply to automobiles and autobusses licensed by the Corporation Commission of Oklahoma to do a carrying business between towns and cities within the state; provided also that the provisions of this act shall not apply to additions or parts of a city which are only served or connected by not more than two streets."

"Any such person, firm or corporation furnishing such jitney service or using automobiles or autobusses for carrying passengers for hire shall be subject to the taxes or license fee for such vehicle as they use as are required by the laws of the state of Oklahoma, and to such reasonable occupation tax by the ordinances of such city and no other."

The act of 1925 was as follows:

"Section 1. Owners of franchises for the operation of electric street railways propelled by means of tracks and trolleys shall have full power and authority under such franchises to extend such transportation systems by means of busses or other self-propelled vehicles, and such transportation shall be and become a part of the general transportation system of such street railway company, subject to all regulations imposed on such vehicles by law.

"Sec. 2. All acts and parts of acts in conflict herewith are hereby repealed."

The general act clearly gave a city the right to pass any ordinance regulating the operation and right to operate busses so long as such ordinance was not unreasonable. It specifically included liability bonds and occupation taxes and exclusion from street car lines for two paralleling streets as within the power of the city. The act of 1925 gave electric street railways the right to operate busses as "a part of the general transportation system of such street railway company, subject to all regulations imposed on such vehicles" and repealed conflicting legislation then existing.

We think the effect of this legislation was to give cities the right to reasonably regulate busses whether operated by street railways or others and to make such differences between them as were reasonable. For example, a difference in occupation license might be discriminatory and unreasonable, because there appears no reasonable ground for charging one vehicle more for operation than a similar one of same character and capacity or weight. It might be reasonable to have a difference as to amount of liability bond because the street railway has much permanent property and investment which would be subject to its liabilities, while a purely bus company could easily remove practically all of its property. Also, the statute of 1925 would seem to contemplate a difference in treatment as to routes because it authorized the use of busses by the street railway company as a co-ordinated part of its general system and the permission in the 1924 act allowing cities to exclude busses from street car streets or those paralleling car lines is for the sole purpose of protecting the street car systems from direct bus competition. There is no vested right in the use of streets. The Legislature may deny, grant or condition such use, or delegate such powers to the municipalities. This is the law under the Constitution of Oklahoma, as decided by the Criminal Court of Appeals of that state in McGuire v. Wilkerson, 209 P. 445, 448, and is the general rule. Packard v. Banton, 264 U. S. 140, 144, 44 S. Ct. 257, 68 L. Ed. 596. We have no doubt of the validity of the 1925 act, even as above...