Yellow Cab Taxi Service v. City of Twin Falls

• Decision Date: 24 February 1948
• Docket Number: 7393
• Citation: 68 Idaho 145,190 P.2d 681
• Parties: YELLOW CAB TAXI SERVICE v. CITY OF TWIN FALLS
• Court: Idaho Supreme Court

190 P.2d 681

68 Idaho 145

YELLOW CAB TAXI SERVICE v. CITY OF TWIN FALLS

No. 7393

Supreme Court of Idaho

February 24, 1948

Appeal from District Court, Eleventh Judicial District, Twin Falls County; T. Bailey Lee, Judge.

Judgment affirmed.

W. L Dunn, of Twin Falls, for appellant.

The action of the respondent council was arbitrary, illegal unauthorized and an abuse of discretion. 44 C.J. § 3814 p. 1005; 44 C.J. § 3881, pp. 1033-1034; 43 C.J. § 597, pp. 440-441.

The preliminary injunction should not have been dissolved. And the court will review such action on appeal, where there is a showing of an abuse of discretion on the part of the court below. Rowland v. Kellogg Power & Water Co., 40 Idaho 216, 233 P. 869; Blue Creek Land & Livestock Co. v. Battle Creek Sheep Co., 52 Idaho 728, 19 P.2d 628.

J. H. Blandford, of Twin Falls, for respondent.

The owners of hacks and cabs have no property rights in the streets superior to regulations necessary under the police power for the public good. A license is not property, nor is it a franchise. McQuillin, Municipal Corporations, 2nd Ed., Vol. 4, Sec. 1461; Schoenfeld v. City of Seattle, D.C.Wash., 265 F. 726.

Anyone obtaining a permit from the city for a private use of the public street takes it with notice that it is subject to revocation at the will of the city with or without notice. Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121, L.R.A.1917F, 1004.

If a person making a private use of a public street goes to expense he does so at his own risk, and he will not be heard to complain that his property is being taken without due process of law when the city deems it necessary as a proper police measure to revoke his permit. Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121, L.R.A.1917F, 1004; Schoenfeld v. City of Seattle, D.C.Wash., 265 F. 726.

Hyatt, Justice. Givens, C. J., Holden, and Miller, JJ., and Sutphen, District Judge, concur.

OPINION

Hyatt, Justice.

Appellant filed suit against respondent, a City of the second class, to obtain a judgment enjoining it "from in any manner molesting or interfering with" his use of a certain taxicab stand located on Main Street of said City, and quieting his right "to the use of said space." His complaint alleges that he is and has been for 16 years last past operating a taxicab service in said City of Twin Falls, and has occupied and used said taxicab stand during said period in caring for and meeting the demands of the public for taxicab service; that for the use thereof, for a 12 months period ending January 2nd, 1948, he paid the City $ 240.00, in return for which it issued him a receipt designated as a taxicab parking license; that the City also issued him licenses to operate five cabs for the year 1947; that respondent has caused its Chief of Police to advise him that the City "is going to move his cabs" from said stand and off Main Street "without offering any reason or any claim of violation by plaintiff of his privileges under said licenses or his franchise to operate taxicabs in said municipality," and without first being given a hearing; that he has a large investment in his taxi business, and in addition to being deprived of the sums paid for the license, his investment would be greatly impaired, and he would suffer irreparable damage.

A general demurrer to the complaint was sustained, judgment of dismissal entered without leave to amend, and a temporary restraining order issued upon filing of the complaint, dissolved.

Appellant assigns as error: (1) the sustaining of the general demurrer; (2) the sustaining of the demurrer without leave to amend; (3) the dismissal of the action; and (4) the dissolution of the temporary restraining order.

In considering whether or not the complaint states a cause of action, it is necessary to first determine whether appellant's long continued use of his particular taxicab stand in a public street entitles him to injunctive relief restraining respondent from in any manner interfering with his occupancy thereof, and to a decree quieting in him his right to the use of the space.

It is an elemental and well established rule in this State that the streets from side to side and end to end belong to the public, and are held by the municipality in trust for the use of the public. Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121, L.R.A.1917F, 1004.

The City, however, has the supervision and control of the public highways and streets within its limits. Sec. 49-1141, I.C.A. as amended by Chap. 6, 1935 Laws, 2d Ex.Sess.; Foster's Inc. v. Boise City, 63 Idaho 201, 118 P.2d 721.

No one has any vested or natural right to use the streets for or in the prosecution of a business for private gain. Greene v. City of San Antonio, Tex.Civ.App., 178 S.W. 6; People v. Galena, 24 Cal.App.Supp.2d 770, 70 P.2d 724; Ex parte Graham, 93 Cal.App. 88, 269 P. 183; Hadfield v. Lundin, 98 Wash. 657, 168 P. 516, L.R.A.1918B, 909, Ann.Cas.1918C, 942; Chapman v. City of Portland, 131 Me. 242, 160 A. 913; Jarrell v. Orlando Transit Co., 123 Fla. 776, 167 So. 664; Gill v. Dallas, Tex.Civ.App., 209 S.W. 209; McQuillin on Municipal Corporations, Vol. 4, Sec. 1461, p. 188.

In Packard v. O'Neil, 45 Idaho 427, 438, 262 P. 881, 885, 56 A.L.R. 317, this court said: "The right to use the public ways of the state, and the control of that use, being public in its nature, is a special subject for regulation under the police power of the state."

And again in Foster's, Inc. v. Boise City, 63 Idaho 201, at pages 210 and 211, 118 P.2d 721, at page 725:

"When a street is acquired, either by dedication or condemnation, and opened for traffic, the municipality has the power and authority to police the same and regulate the traffic thereon. Sec. 49-1141, I.C.A.

"'It will be seen from the foregoing that the power of cities and villages in this state over the streets is exclusive and unlimited.' * * *

"The police power is a necessary concomitant to complete sovereignty and inheres primarily in the state. The exercise of that power, within the corporate limits of cities and villages, has been delegated to the respective municipalities. The full exercise of that power is one of the governmental duties of the respective municipalities as arms of the state, in preserving the health, safety and general welfare of the people."

Respondent cannot be estopped by appellant's long permissive use of the street from asserting its control over the same.

As a general rule, estoppel will not be applied to prevent a municipality from exercising its police power. See 38 Am.Jur. page 375. It has also been said that since the police power of a municipal corporation is a continuing one, a permit does not exempt an applicant from the operation of subsequent ordinances and regulations legally enacted in the exercise of its police powers. 38 Am. Jur. page 65. Also, a municipality cannot authorize any use of its streets by a private person inconsistent with the future legitimate uses of the street by the municipality, and no right to use the street for private purposes can be acquired by prescription as against the municipality. McQuillin on Mun. Corp., 2d Ed. Rev., Vol. 4, Sec. 1423, page 97.

We therefore conclude that appellant does not and cannot state a cause of action, based upon the theory of a previous use of the parking space, entitling him to have his rights to the use of the street quieted in him, and such right protected by injunction.

The remaining question is whether respondent, after issuing appellant a license or permit to use the stand for a 12 months period, may, during that period, remove him from the location without any reason and without a hearing.

Respondent relies upon Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121, L.R.A.1917F, 1004, for the proposition that a City may revoke a permit to occupy the streets whenever it deems such revocation necessary. In that case, the City of Boise by resolution gave the plaintiff permission to install a gasoline pump apparently on the curb of the street and within space occupied by the sidewalk, which was a part of the street over which the City had control. After installation of the pump the City revoked the permission theretofore given and ordered the pump removed. The court held that the City was without authority from the Legislature to grant a private person a permit to erect or maintain a permanent obstruction in a public street for a purely private purpose; that anyone obtaining a permit from the City for such use takes the same with notice that it is subject to revocation at the will of the City, and that if a person making such private use goes to expense, he does so at his own risk.

Since the basis for the decision in the Keyser case was the lack of authority of the City in the first instance to grant the permit, we do not believe it is applicable or controlling here. Respondent in...