Birmingham Interurban Taxicab Service Corp. v. McLendon , 210 Ala. 525 ( 1923 )

Const. Ala. 1901, § 220, reads:

"No person, firm, association or corporation shall be authorized or permitted to use the streets, avenues, alleys or public places of any city, town, or village for the construction or operation of any public utility or private enterprise, without first obtaining the consent of the proper authorities of such city, town or village."

This section was construed in City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117.

We there held that its terms, "contemplated the permanent preservation of the municipal right to control, by withholding consent, the use of the streets * * * for the operation of any public utility or private enterprise," mean "to preserve against legislative action a measure of local self-government," "to restrict the power of the Legislature to the extent that it could not enact laws affecting or governing the use of local public ways that did not recognize or respect the thus permanently preserved rights of the local authorities to determine, according to their judgment, whether or not such ways and places mentioned in section 220 should be used for the purposes prescribed in section 220." It was further declared: "The thing over which the municipality may exercise the control contemplated is the use of the public ways and places therein."

A taxicab company, doing the business of a common carrier of passengers for hire, was therefore held to be either a "public utility," or a "private enterprise," within the meaning of section 220 of the Constitution. This case further declared that such taxicab companies are subject to statutes conferring power to exact licenses and to regulate in the interest of the public safety and welfare the use of the streets by persons and vehicles.

In Cloe v. State ex rel. Hale, 209 Ala. 544, 96 So. 704, the pertinent provisions of ordinance 759-C, regulating the granting of such license, was set out. That was a mandamus proceeding to require the commissioner of public safety to issue a license to a jitney bus to operate on a special route.

The court said:

"The petitioner has no natural or inherent right to operate motor vehicles, as common carriers of passengers, on the streets of Birmingham" — citing City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117; Const. 1901, § 220.

This case further holds that the commissioner of public safety is vested with no power to issue licenses; that this power is in the commission; that the granting of licenses is in their discretion at least as to the number of vehicles the needs of the public require, or the character of the streets and the convenience and safety of traffic permit.

The equity of the present bill must rest upon one of two theories: First, that complainant has a natural property right to use the streets of Birmingham in the conduct of its business upon complying with the regulations applying thereto; or, second, the commission has granted such right to any and all persons who conform to these regulations. Upon such premise it is claimed that an arbitrary, capricious abuse of discretion has deprived complainant of a property right to its injury.

The clear language of section 220 of the Constitution admits of no other construction than that given in the cases above reviewed. "No" one shall be authorized or "permitted to use the streets" for the purposes named "without first obtaining the consent" of the "proper authorities" of the "city."

The framers of section 220, above, must have foreseen the increasingly acute situation on the streets of our cities. The control of the streets in conserving the public safety and convenience was deemed an essential sovereign power in the local authorities, who alone can keep an eye on conditions, and meet the needs as they arise.

It may be noted that section 220, and a new section, 221, protecting municipalities in the matter of privilege taxes, were made the first sections of the article on municipal corporations. They are in the nature of a bill of rights. They recognize certain fixed, constitutional rights which shall not be invaded.

The privilege of operating a taxicab business as a common carrier of passengers for hire upon the streets of a city is in the nature of a franchise or easement. Under our Constitution it can be acquired only from the city authorities — from the commission in Birmingham.

Whatever may be the right of complainant to obtain a permit, it must come through the commission. Taking as true all that is averred to the effect that the refusal has been arbitrary, capricious, malicious, and autocratic, and granting for argument that such abuse of discretion would warrant a mandamus to compel the issuance of license under the ordinance, it does not follow that such "consent" can be given by the indirect process of injunction.

The prayer of the bill is for an injunction to restrain and enjoin the city authorities from molesting or interfering with complainant in carrying on a taxicab business in Birmingham and vicinity. The temporary injunction is so framed. By this process complainant is "permitted" to carry on its business without the "consent" of the city authorities.

That Ordinance No. 759-C is valid is not questioned. In studying the ordinance, we should keep in mind the distinction between regulating a business and granting a franchise or license to do business. The power to regulate traffic upon the streets in the interest of the public safety and convenience is a charter power granted by the Legislature. The power to grant the franchise or easement here involved — to consent or not to consent to a taxicab business on the streets of Birmingham — is a power guaranteed by the Constitution. This power the Legislature and the courts must alike respect.

As noted in Cloe v. State ex rel. Hale, 209 Ala. 544,96 So. 704, Ordinance No. 579-C does not vest in the commissioner of public safety any power to grant license or to pass on an application therefor. His duties are to receive the application, make investigation, and report as to the fitness of the vehicles, and the qualification of proposed operators, and present both to the commission. His work is merely advisory, like that of an investigating committee. The commission is not concluded by his findings of fact. They may make further investigation. Neither does the ordinance require the granting of license if all the required facts are shown to the satisfaction of the commission. The commission "shall * * * by resolution grant or refuse to applicant a license."

The commission of the city of Birmingham is its governing body, invested with legislative, executive, and judicial powers. As stated in the case last cited, it has in this ordinance reserved the power to grant license.

The whole question of determining whether the public necessity demands, or the public safety and convenience will be promoted, by granting a permit to a transportation company to operate on the streets of the city, is left to the judgment and discretion of the commission. This is in the nature of a legislative discretion. In the resolution denying complainant's application for license, the commission expressly found that the public necessity and convenience did not require the issue of the license. We are of opinion this finding was within its powers.

Whether the governing body may by ordinance express a general "consent" that all persons or a given number shall, on compliance with fixed regulations, be entitled to taxicab license, so that the officer directed to issue them may be controlled by mandamus, is a question we need not determine. We conclude the commission has not given such general consent, and its action cannot be controlled by injunction. Pryor Motor Co. v. Hartsfield, 207 Ala. 646, 93 So. 524; Giglio v. Barrett,207 Ala. 278, 92 So. 668; Harris v. Barrett, 206 Ala. 263,89 So. 717; Pilcher v. City of Dothan, 207 Ala. 421,93 So. 16; Brown v. Mayor and Aldermen of Birmingham, 140 Ala. 590,37 So. 173.

We conclude the bill is without equity. The lower court, so holding, dissolved the injunction, and dismissed the bill. There was no motion to dismiss the bill nor submission thereon.

In Johnson v. Southern B. L. Ass'n, 132 Ala. 173, 31 So. 496, it was held error to dismiss the bill when submitted solely on motion to dissolve the injunction.

In Dailey v. Koepple, 164 Ala. 317, 51 So. 348, it was held that, where a bill cannot be so amended as to import equity, the court may dismiss it ex mero motu. Such decree can work no injury. On motion to dissolve an injunction for want of equity, all amendable defects are treated as amended. Thompson v. Johnson, 201 Ala. 315, 78 So. 91. Chancery Rule 96, Code, 1907, vol. 2, p. 1558, contemplates that the court in considering such motion to dissolve the injunction, shall pass upon the equity of the bill, and, if without equity, dismiss it. The rule is intended to apply to cases of class defined in Dailey v. Koepple, supra.

If the injunction is merely in aid of other relief sought, and the bill is amendable in form or in substance so as to give it equity without a departure as defined by the amendment statute, it should not be dismissed ex mero motu.

We consider this case within the principle of Dailey v. Koepple, supra, and City of Montgomery v. Orpheum Taxi Co., supra, and find no reversible error in the decree of the court below.

The injunction reinstated under order of October 30, 1923, will be dissolved, and the decree of the court below affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.