Victory Cab Co. v. Shaw

• Decision Date: 24 May 1950
• Docket Number: No. 521,521
• Citation: Victory Cab Co. v. Shaw, 232 N.C. 138, 59 S.E.2d 573 (N.C. 1950)
• Court: North Carolina Supreme Court
• Parties: VICTORY CAB CO., Inc. et al. v. SHAW et al.

Page 573

59 S.E.2d 573

232 N.C. 138

VICTORY CAB CO., Inc. et al. v. SHAW et al.

No. 521

Supreme Court of North Carolina.

May 24, 1950

Henry L. Strickland, J. F. Flowers, W. M. Nicholson, Charlotte, for plaintiffs, appellants.

John D. Shaw, Charlotte, for defendants, appellees.

SEAWELL, Justice.

The exhaustive opinion of Barnhill, J., in Suddreth v. City of Charlotte, 223 N.C. 630, 27 S.E.2d 650, obviates a recapitulation of the delegation by the General Assembly to the City of Charlotte of the authority with respect to the regulation of taxicabs. Since that opinion was rendered G.S. § 160-200 has been amended to provide, inter alia, that a municipality 'may grant franchises to taxicab operators on such terms as it deems advisable.'

In the case of State v. Stallings, 230 N.C. 252, 52 S.E.2d 901, 903, Denny, J., speaking for the Court, said: 'In the exercise of this delegated power, it is the duty of the municipal authorities in their sound discretion, to determine what ordinances or regulations are reasonably necessary for the protection of the public or the better government of the town; and when * * * such * * * ordinance is adopted, it is presumed to be valid; and, the courts will not declare it invalid unless it is clearly shown to be so.' Motley v. State Board of Barber Examiners, 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253; Brumley v. Baxter, 225 N.C. 691, 36 S.E. 2d 281, 162 A.L.R. 930; Chimney Rock Co. v. Town of Lake Lure, 200 N.C. 171, 156 S.E. 542. This is true when the constitutionality of an ordinance is attacked, and no law or ordinance will be declared unconstitutional unless clearly so and every reasonable intendment will be made to sustain it. Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781; Jewel Tea Company v. City of Troy, 7 Cir., 80 F.2d 366.

It is well settled that, although the obligations of contract must yield to a proper exercise of the police power and vested rights cannot inhibit proper exertion of the power, it must be exercised for an end which is in fact public, and the means adopted must be reasonably adapted to the accomplishment of that end and must not be arbitrary and oppressive. Treigle v. Acme Homestead Association, 297 U.S. 189, 56 S.Ct. 408, 80 L.Ed. 575, 101 A.L.R. 1284; State v. Finney, 65 Idaho 630, 150 P.2d 130, 132; State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658.

As was stated by Barnhill, J., speaking for the Court in Suddreth v. Charlotte, supra, quoting 37 Am.Jur., 535, 'No person has an absolute right to use the streets of a municipality in the operation of powerdriven vehicles for hire. Such operation is a privilege which the municipality, under proper legislative authority may grant or withhold.' [ 223 N.C. 630, 27 S.E.2d 652.] Commonwealth v. Rice, 261 Mass. 340, 158 N.E. 797, 55 A.L.R. 1128; Bunn v. City of Atlanta, 67 Ga.App. 147, 19 S.E.2d 553; State v. Carter, 205 N.C. 761, 172 S.E. 415; Vol. 1 Blashfield Cyc. Auto. Law & Practice, Perm.Ed., § 32, p. 67, 7 McQuillin, Municipal Corporations, Sec. 24.661, and cases cited thereunder.

'The fundamental rule that a municipal corporation cannot surrender in any part or in any respect the police power delegated to it by the State is applicable to the regulation of taxicabs. It follows that the grant of a franchise to a taxicab does not and cannot, despite any terms of the franchise, diminish in any respect in the least, the police power of the municipal corporation to regulate the taxicabs or the particular company enjoying such franchise.' 7 McQuillin, Municipal Corporations, Sec. 24.662; Northern Pac. Ry. Co. v. State of Minnesota ex rel. City of Duluth, 208 U.S. 583, 28 S.Ct. 341, 52 L.Ed. 630; Carolina & N. W. Ry. Co. v. Town of Lincolton, 4 Cir., 33 F.2d 719.

The municipality now seeks by ordinance to restrict the operation of taxicabs to the holders of franchises. It is not logical to assume that a franchise holder is operating a taxicab when such vehicle is rented to an independent contractor. The lessor is engaged in the business of renting vehicles to be operated as taxicabs by others who, not being franchise holders, are not extended the privilege of operation, even though they...