Taylor v. Smith

• Citation: 124 S.E. 259
• Parties: TAYLOR, Superintendent of Police, v. SMITH.
• Decision Date: 18 September 1924
• Court: Supreme Court of Virginia

124 S.E. 259

TAYLOR, Superintendent of Police,

v.SMITH.

Supreme Court of Appeals of Virginia.

Sept. 18, 1924.

Error to Corporation Court of Roanoke.

Mandamus by R. C. Smith against one Taylor, Superintendent of Police of the City of Roanoke. Judgment for plaintiff, and defendant brings error. Reversed, and order entered dismissing petition.

R. C. Jackson, of Roanoke, for plaintiff in error.

Hughson & Showalter, of Roanoke, for defendant in error.

BURKS, J. The counsel of the city of Roanoke passed an ordinance regulating the operating of motor busses on the streets of the city, and amongst other things forbade any one to operate such busses unless and until he had first obtained a permit and a license so to do.

Section 7 of the ordinance is as follows:

"No person shall operate, and no owner shall allow' or permit any agent or employee to operate any such vehicle, until he shall have appeared before the superintendent of police and passed an examination as to his ability to operate an automobile and as to his knowledge of the traffic laws of the state and of the city, and shall have satisfied the superintendent of police of his character and qualifications, and shall have a certificate from the superintendent of police to that effect; provided, however, that the superintendent of police shall not approve any application for such certificate to any person who is under the age of eighteen years."

The defendant In error, R. C. Smith, applied to the superintendent of police for a certificate under section 7, but he refused it. Thereupon Smith applied to the corporation court of the city for a mandamus to compel the superintendent to issue to him the certificate. The city demurred to the petition for the mandamus, but the court overruled the demurrer and awarded the writ.

The power of the city over its streets and the right to regulate their use is not called in question, but section 7 is assailed on the ground that the power conferred on the superintendent of police is purely arbitrary, and not regulated by any uniform rule of action. The petition, after reciting the enactment of the ordinance, sets forth section 7 in full, and states the petitioner's case as follows:

"That petitioner has heretofore been operating a motor bus or taxicab in the city of Roanoke, Va.; that in pursuance of said ordinance above mentioned, and of the clause above set forth, petitioner applied to the superintendent of police for the city of Roanoke, Va., for a certificate under said ordinance to operate a taxicab as driver, but was refused said certificate, basing his refusal upon the fact that petitioner had been fined in police court for the following violations: First, speeding (one time); second, for driving without having first obtained a permit; third, for fighting.

"Petitioner claims, and therefore avers and charges, that the above matters were not such as would go to the question of his moral character, and that the superintendent of police should not have refused to grant the certificate when the same was requested, that said section of the ordinance is invalid."

Two questions present themselves for our consideration: (1) Was the power delegated to the superintendent of police purely arbitrary? And (2) if so, did the city have the right to delegate it?

By section 7 the applicant is required to stand an examination before the superintendent of police "as to his ability to operate an automobile, and as to his knowledge ofthe traffic laws of the state and of the city, " and to satisfy "the superintendent of police of his character and qualifications, " and when he has done this it is made the duty of the superintendent of police to give him a certificate to that effect. This is the preliminary step to be taken by the applicant. After he has done this, section 3 of the ordinance declares:

"Every person desiring such permit and license shall make application to the city manager of the city of Roanoke on printed forms to be prescribed and furnished by said city manager, in which form shall be stated: (a) Name and residence or office of applicant; (b) the number, type, state license number and carrying capacity of each motor bus proposed to be operated; (c) the route over which it is proposed to operate such motor bus; (d) during what hours it is proposed to operate; (e) that no driver shall be employed who has not passed the examination required by ordinance.

"The application shall be signed by the applicant, if an individual; if a firm, by some member thereof; and, if a corporation, by its president, treasurer, or secretary."

Section 4 then provides that he shall give bond, with a guaranty or surety company as surety, and state what the condition of the bond shall be and who may sue thereon. The application and bond must be approved by the city manager, and when so approved and the certificate of approval is duly certified by the city clerk, it is provided that the "commissioner of the revenue shall issue to such applicant a license to operate such motor bus, " etc. The plain intimation, in fact the necessary inference, is that it is the duty of the superintendent of police to issue the certificate to all who successfully pass the examination and satisfy him as to "character and qualifications." This is far from investing the superintendent with a purely arbitrary or whimsical discretion. Indeed, the petition shows on its face that the application was not refused arbitrarily, but for good cause, to wit, because the applicant had been convicted three times for violating the ordinances of the city, two of which related to the operation of automobiles, and the other to peace and good order. There is no allegation or suggestion in the petition that a certificate had been refused by the superintendent of police to any other person, arbitrarily or otherwise. But the conclusion is reached that the superintendent acted arbitrarily because he refused him a certificate for the reasons stated, and that such action was authorized by section 7, and hence "said section of the ordinance is invalid." This conclusion was not admitted by the demurrer, and was not warranted by the facts.

It must be conceded that knowledge of the traffic laws of the state and of the city, and that the applicant shall be a person of suitable character and qualifications to fill the position, are wise precautions for the safety and welfare of the public; and that the authority to ascertain these facts should be vested somewhere. But the fact that it is vested in the superintendent of police, or other administrative officer, and that no fixed rules are prescribed for his governance does not confer upon such officer an arbitrary authority to act as he pleases without regard to the rights of others. What is vested in him is a sound discretion, founded on the facts and circumstances of the particular case, and to be exercised with a due regard to the rights of the applicant as well as the public. Such a discretion is frequently vested in courts and judges, often not subject to review, and with no guaranty of its honest exercise except the character of the man who exercises it. The discretion vested in the officer is what is called in some of the cases a reasonable discretion. It is in its nature judicial.

Rules and regulations cannot always be made in advance for the guidance of administrative and executive officers in the execution of discretionary powers" vested in them. The very nature of the power conferred may forbid it, as in the instant case, where the question is one of "character and qualifications."

In Hall v. Geiger-Jones Co., 242 U. S. 539, 37 Sup. Ct. 217, 61 L. Ed. 480, L. R. A. 1917F, 514, Ann. Cas. 1917C, 643, where an applicant for a license to deal in corporate securities was required to satisfy the commissioner that he was a person of "good repute, " it was said:

"Reputation and character are quite tangible attributes, but there can be no legislative definition of them that can automatically attach to or identify individuals possessing them, and necessarily the aid of some executive agency must be invoked. The contention of appellees would take from government one of its most essential instrumentalities, of which the various national and state commissions are instances."

The authorities on this subject are too numerous to discuss, but in a valuable note in 12 A. L. R. 1435, 1447, citing many cases it is said:

"It is also well settled that it is not always necessary that statutes and ordinances prescribe a specific rule of action, but, on the other hand, some situations require the vesting of some discretion in public officials, as, for instance, where it is difficult or impracticable to lay down a definite, comprehensive rule, or the discretion relates to the administration of a police regulation and is necessary to protect the public morals, health, safety, and general welfare."

Cases are cited from California, Georgia, Illinois, New Hampshire, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, and Wisconsin.

In Lieberman v. Van De Carr, 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305, an ordinance forbidding milk dealers to act assuch "without a permit in writing from the board of health, and subject to the conditions thereof." was upheld on the ground that the ordinance only conferred upon the board of health such reasonable discretionary powers as were necessary to protect the public health.

In Engel v. O'Malley, 219 U. S. 128, 31 Sup. Ct. 190, 55 L. Ed. 128, the court upheld a statute of New York (Laws 1910, c. 348, § 25) requiring certain private bankers to obtain a license from the state comptroller as a prerequisite to the right to do business, although the statute provided that "the comptroller may approve or disapprove the application in his discretion, " and provided no guide for the exercise of the discretion. The basis of the decision is public safety as disclosed by the facts of the case, and it was held that the power...