Quigg v. State

• Decision Date: 02 August 1922
• Citation: 84 Fla. 164,93 So. 139
• Parties: QUIGG, Chief of Police v. STATE ex rel. RADEL.
• Court: Florida Supreme Court

93 So. 139

84 Fla. 164

QUIGG, Chief of Police v. STATE ex rel. RADEL.

Florida Supreme Court

August 2, 1922

Rehearing Denied Aug. 17, 1922.

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Proceeding in habeas corpus by the State of Florida, on the relation of E. H. Radel, Jr., against Leslie Quigg, Chief of Police of City of Miami, Dade County, Fla. There was a circuit court order discharging the petitioner, and the Chief of Police was allowed a writ of error.

Affirmed.

Ellis and West, JJ., dissenting.

Syllabus by the Court

SYLLABUS

City held without power to prohibit operation of jitney busses. The charter power of the city of Miami 'to license control, tax and regulate traffic and sales upon the streets sidewalks and public places within the city * * * and to license and cause to be registered, and control, tax and regulate carriages, automobiles, motor busses, cars, wagons drays, jitney busses and other vehicles,' does not confer authority to wholly prohibit the operation of jitney busses on the streets of the city; nor does the general welfare power clause authorize a prohibition of use when such vehicles are not shown to be inherently dangerous to those who travel the streets.

COUNSEL

A. J. Rose, of Miami, for plaintiff in error.

George A. Worley & Son, L. A. Harris, W. F. Perry and Grover C. McClure, all of Miami, for defendant in error.

OPINION

WHITFIELD, J.

In habeas corpus proceedings before the circuit judge it appeared that E. H. Radel, Jr., was held in custody under a conviction in the municipal court for operating a jitney bus on certain streets, a violation of an ordinance of the city of Miami. The validity of the ordinance was challenged. To an order of the circuit court discharging the petitioner, a writ of error was allowed and taken under the statute. After reciting the conditions that prompted its adoption, the ordinance provides:

'That for the purpose of this ordinance, a jitney bus is defined to be any vehicle other than a street railway car operated upon the streets of the city of Miami for the purpose of receiving, carrying and discharging as passengers for hire such persons as offer themselves for transportation, or operated in such a manner for hire as to offer a means of transportation similar to that afforded by the street railway car:

'Sec. 2. That no jitney bus shall operate on the following streets:

'On Flagler street from First avenue east to Northwest Third avenue, 'Nor on Flagler street from Sixth avenue west to Sixteenth avenue west,

'Nor on Northeast First avenue from Flagler street to Northeast Thirteen street,

'Nor on Northeast Thirteenth street between Northeast First and Second avenues,

'Nor on Northeast Second avenue from Northeast Thirteenth street to Northeast Thirty-Sixth street.

'Sec. 3. That any person found guilty of the violation of this ordinance shall be subject to a fine not exceeding one hundred dollars ($100.00) and imprisonment not exceeding thirty (30) days, or both such fine and imprisonment, at the discretion of the court.'

Under its charter the city has general welfare powers and also specific power 'to license, control, tax and regulate traffic and sales upon the streets, sidewalks and public places within the city--and to license and cause to be registered, and control, tax and regulate carriages, omnibuses, motor busses, cars, wagons, drays, jitney busses and other vehicles.'

The city has only such powers as are conferred upon it by its charter or by law. See Florida Cent. & P. R. Co. v. Ocala St. & S. R. Co., 39 Fla. 306, 22 So. 692; Ex parte Davidson, 76 Fla. 272, 79 So. 727.

Manifestly the express power 'to license, control, tax and regulate traffic * * * upon the streets * * * and to license and cause to be registered, and control, tax and regulate * * * jitney busses and other vehicles,' does not confer authority to wholly prohibit the operation of jitney busses on streets of the city. Nor does the general welfare power clause authorize a prohibition of use when such vehicles are not shown to be inherently dangerous to those who travel the streets. Curry v. Osborne, 76 Fla. 39, 79 So. 293, 6 A. L. R. 108. If they are dangerously operated, that can be remedied by proper regulations, even to the extent of exclusion from use of the streets for not observing permissible regulations that may be enforced in the interest of the public safety and convenience. There is authority to license and to regulate the operation of such vehicles and all others when they are being used on the streets, and such authority contemplates full regulation in the interest of the public welfare; but prohibition of such use in toto is obviously not contemplated by the express authority to license, tax, control, and regulate. See Malone v. City of Quincy, 66 Fla. 52, 62 So. 992, Ann. Cas. 1916D, 208. Lawful regulation may partially prohibit by limiting and controlling the use; but it may not totally prohibit. Under the charter the city may regulate the use of jitney busses on the streets in any reasonable way that conserves the public welfare, and in doing so may circumscribe their privileges in the use of the streets; but no authority for the quoted ordinance entirely excluding jitney busses from streets is shown.

Affirmed.

BROWNE, C.J., and TAYLOR, J., concur.

DISSENTING

WEST J. (dissenting).

From the doctrine that a city has only such powers as are conferred by its charter or by-laws, as announced in the opinion, there will of course be no dissent. But from the conclusion that, tested by this rule, the ordinance under consideration in invalid because no basis is found for it in the powers granted the city, there may be. The contrary, it seems to me, is susceptible of demonstration.

In addition to the power quoted in the opinion, the city possesses by virtue of express charter provision, as shown by the record, pertinent powers as follows:

'(1) Paragraph P, Section 3. 'And generally to define, abate, suppress, and prevent all things detrimental to the health, morals, comfort, safety, convenience and welfare of the residents of the city.'

'(2) Paragraph Y, Section 3. 'To exercise full police powers and establish and maintain a department or division of police.'

'(3) Paragraph Z, Section 3. 'To do all things whatsoever necessary or expedient for promoting or maintaining the general welfare, comfort, education, morals, peace, government, health, trade, commission or industry of the city or its inhabitants.'

'(4) Paragraph AA, Section 3. 'To make and enforce all ordinances, rules and regulations, necessary or expedient for the purpose of carrying into effect the powers conferred by this charter, or by any general law, and to provide and impose suitable penalties.'

'(5) Paragraph HH, Section 3. 'To license, control, tax and regulate traffic and sales upon the streets, sidewalks and public places within the city--and to license and cause to be registered, and control, tax and regulate carriages, omnibuses, motor busses, cars, wagons, drays, jitney busses and other vehicles.”

The ordinance, for the violation of which the petitioner, defendant in error, was tried and convicted in the municipal court, was presumably ordained pursuant to these charter provisions and upon the assumption that it was within the granted powers.

The ordinance, including the preamble in which the reasons impelling its enactment are expressed, is as follows:

'Ordinance No. 55.

'An ordinance defining jitney busses and providing that no jitney bus shall operate on Flagler street from First avenue east to Northwest Third avenue, nor on Flagler street from Sixth avenue west to Sixteenth avenue west, nor on Northeast First Avenue from Flagler street to Northeast Thirteenth street, nor on Northeast Thirteenth street between Northeast First and Second avenues, nor on Northeast Second avenue from Northeast Thirteenth street to Northeast Thirty-Sixth street, and providing a penalty for a violation thereof, and declaring this an emergency ordinance.

'Whereas, the city of Miami, Florida, has more automobiles per capita than any other city of the United States; and

'Whereas, the number of automobiles is greatly augmented during the winter or tourist season; and

'Whereas, the streets hereinafter mentioned and designated are principal business streets of Miami and are extremely narrow and altogether inadequate for the accommodation of the traffic; and

'Whereas, there are now two forms or modes of passenger transportation operating upon and over parts or sections of said streets, one in the form of an electric street railway system operating trolley cars, and the other in the form of jitney busses; and

'Whereas, the operating of these two systems of passenger transportation upon and over certain parts or sections of said streets increases the traffic congestion on said streets; causes great inconvenience to the public, and in addition thereto imperils life and endangers the property of the public; and

'Whereas, said traffic congestion is a nuisance which can only be relieved by forbidding said jitney busses from operating over certain parts or sections of said streets on which said electric street railway tracks are laid; and

'Whereas, the operation and maintenance of both of said passenger transportation systems over and along certain parts or sections of said streets are unnecessary for the accommodation of the public; and

'Whereas, the city of Miami has recently purchased from said traction company all of its property, real and personal, together with all its rights, privileges and franchises in and over said streets, and has improved said traction service so as to accommodate, serve and satisfy the public; and

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