Raleigh-Durham Airport Authority v. Stewart , 278 N.C. 227 ( 1971 )

179 S.E.2d 424 (1971) 278 N.C. 227

RALEIGH-DURHAM AIRPORT AUTHORITY, Plaintiff,
v.
George STEWART and Clyde Leasing, Incorporated, trading and doing business as Budget-Rent-A-Car, Defendants.

No. 9.

Supreme Court of North Carolina.

March 10, 1971.

Purrington & Purrington, by A. L. Purrington, Jr., Raleigh, for plaintiff appellant.

Tally, Tally & Bouknight, by J. A. Bouknight, Jr., Fayetteville, for defendants appellees.

LAKE, Justice.

In Harrelson v. Fayetteville, 271 N.C. 87, 155 S.E.2d 749, we held that a municipal corporation, owning and operating a public airport, is authorized to grant an exclusive franchise for the operation of a common carrier limousine service for the transportation of passengers and their baggage to and from the airport. We there cited, with approval, as authority for the proposition that, in so doing, the municipality is acting in a proprietary capacity: Miami Beach Airline Service v. Crandon, 159 Fla. 504, 32 So. 2d 153, 172 A.L.R. 1425; North American Co. v. Bird, 61 So. 2d 198 (Fla.); Ex Parte Houston, 93 Okla. Crim. 26, 224 P.2d 281; Stone v. Police Jury of Parish of Calcasieu, 226 La. 943, 77 So. 2d 544; City of Oakland v. Burns, 46 Cal. 2d 401, 296 P.2d 333. This Court so held in Rhodes v. Asheville, 230 N.C. 134, 52 S.E.2d 371, rehear. den., 230 N.C. 759, 53 S.E.2d 313. In the Miami Beach Airline Service case, supra, the Supreme Court of Florida said, "When given authority to do so a governmental entity is expected to perform a proprietary function under like rules and regulations as those pursued by private individuals."

We further cited in support of our conclusion in the Harrelson case, supra, the statement in 8 Am.Jur.2d, Aviation, § 56, that such authority of the municipality extends to the granting of "an exclusive taxicab or limousine or car-rental concession at the airport."

G.S. § 63-53(3) provides that a municipality is authorized "to confer the privileges of concessions of supplying upon its airports goods, commodities, things, services and facilities; provided that in each case in so doing the public is not deprived of its rightful, equal, and uniform use thereof."

In Rhyne, Municipal Law, § 22-16, it is said that the courts unanimously recognize the authority of a municipal corporation operating a publicly owned airport to grant an exclusive concession to one company to furnish taxicab or limousine service at the airport. See also: Rocky Mountain Motor Co. v. Airport Transit Co., 124 Colo. 147, 235 P.2d 580; Associated Cab Co. v. City of Atlanta, 204 Ga. 591, 50 S.E.2d 601; Hertz Drive-Ur-Self System v. Tucson Airport Authority, 81 Ariz. 80, 299 P.2d 1071.

Our attention has been directed to no decision, or other authority, to the effect that a municipal corporation, operating a public airport, or other public transportation terminal, has more extensive authority to exclude persons or vehicles from the terminal grounds than does a privately owned common carrier operating such a terminal for the use and convenience of its passengers. Again, we have been cited to no authority making a distinction in this respect between an airport and a railroad or steamship terminal, and we perceive no basis for such a distinction.

It is well settled that a railroad company may grant to a single taxicab company the exclusive right to enter, or remain upon, the premises of its passenger terminal for the purpose of soliciting the patronage of potential users of taxicab service, or may exclude all persons from so using its premises for such solicitation. Black and White Taxicab, etc., Co. v. Brown and Yellow Taxicab, etc. Co., 276 U.S. 518, 48 S. Ct. 404, 72 L. Ed. 681, 57 A.L.R. 427; Delaware, L. & W. Railroad Co. v. Town of Morristown, 276 U.S. 182, 48 S. Ct. 276, 72 L. Ed. 523; Donovan v. Pennsylvania Company, 199 U.S. 279, 26 S. Ct. 91, 50 L. Ed. 192; Skaggs v. Kansas City Terminal Railway Co., 233 F. 827 (W.D.Mo.). A distinction is made, however, between the authority of such a carrier to grant such an exclusive permit, or concession, to enter or stand upon its property for solicitation of patronage and its authority to deny admission to its premises to discharge a passenger and his baggage, or to pick up a passenger and his baggage, pursuant to a contract previously made between such passenger and the taxicab operator. In neither respect is there any basis for distinction between the operator of a taxicab business and the operator of a car rental agency.

The source of the right of the operator of a taxicab to drive upon the premises of the common carrier of passengers to discharge thereon, or pick up therefrom, a passenger of the common carrier, from whom the taxicab operator has already received a request for his service, is not an independent right of the operator of the taxicab to use the station grounds, but is the right of the passenger to convenient ingress and egress to and from the terminal of the common carrier. As Justices Brandeis and Holmes observed, concurring in part in the decision in Delaware, L. & W. Railroad Co. v. Town of Morristown, supra:

"In these days, the ability of the traveler to obtain conveniently, upon reaching the street door of the station, a taxicab to convey him and his hand baggage to his ultimate destination, is an essential of adequate rail transportation. The duties of a rail carrier are not necessarily limited to transporting freight and passengers to and from its stations. It must, in connection with its stations, provide adequately for ingress and for egress."

The importance to the passenger of transportation between the terminal of the common carrier and his ultimate destination, or point of origin, in the community is even greater in the case of the modern airport, situated several miles from the center of the city.

The leading case recognizing this right of an incoming passenger at the terminal of a common carrier to be met and picked up on the terminal premises by a hackman, for whose services the passenger had made previous arrangements, even though the hackman had been forbidden by the terminal proprietor to solicit or stand upon its grounds, is Griswold v. Webb, 16 R.I. 649, 19 A. 143. There, Stiness, J., speaking for the Court, said:

"[A] railroad station or steam-boat wharf is, to some extent, a public place. The public have the right to come and go there for the purpose of travel; for taking and leaving passengers; and for other matters growing out of the business of the company as a common carrier. But the company has the right to say that no business of any other character shall be carried on within the limits of his property. It has the right to say that no one shall come there to solicit trade, simply because it may be convenient for travelers, and so to say that none, except those whom it permits, shall solicit in the business of hacking * * *.

"But, while this is so, the company cannot deprive a passenger of the ordinary rights and privileges of a traveler, among which is the privilege of being transported from the terminus in a reasonably convenient and usual way. A company cannot compel a passenger to take one of certain carriages, or none at all; nor impose unreasonable restrictions, which will amount to that. If a passenger orders a carriage to take him from the terminus, such carriage is, pro hac vice, a private carriage * * *."

Numerous opinions from other jurisdictions intimate support for this view that, while a railroad company may grant an exclusive permit or concession to solicit patronage upon its terminal premises, and may forbid others to park their vehicles thereon to wait there in the mere hope of employment by an arriving passenger, it may not deny access to its property to one who comes to deliver or pick up a passenger pursuant to the passenger's request that he do so. See: Black and White Taxicab, etc. Co. v. Brown and Yellow Taxicab, etc., Co., supra; Donovan v. Pennsylvania Co., supra; Skaggs v. Kansas City Terminal Railway Co., supra; Yellow Cab Co. of Ashland v. Murphy, 243 S.W.2d 42, 45 (Ky.); Old Colony Railroad Co. v. Tripp, 147 Mass. 35, 37, 17 N.E. 89; Godbout v. St. Paul Union Depot Co., 79 Minn. 188, 81 N.W. 835; Hedding v. Gallagher, 72 N.H. 377, 387, 57 A. 225; Thompson's Express & Storage Co. v. Mount, 91 N.J.Eq. 497, 111 A. 173, 15 A.L.R. 351; Long Island Railroad Co. v. Summers, 263 A.D. 889; Norfolk & Western Railway Co. v. Old Dominion Baggage Co., 99 Va. 111, 37 S.E. 784. See also: 13 C.J.S. Carriers § 567; and Note, 37 Harv.L.Rev. 377. More recent intimations that this concept extends to the right to enter the premises of an airport for such purpose are found in: Friend v. Lee, 95 U.S.App.D.C. 224, 221 F.2d 96; Patton v. Administrator of Civil Aeronautics, 217 F.2d 395, 15 Alaska 150 (9th Cir.); and United States v. Jenkins, 130 F. Supp. 808 (E.D.Va.).

There is, in the case before us, no contention that the defendant's employees solicit patronage on the premises of the Airport Authority, or that its vehicles remain thereon longer than necessary to discharge an outgoing passenger and his baggage or to locate and pick up an incoming passenger, and his baggage, which passenger has previously requested the defendant's service by telephone or otherwise. To forbid the defendant to enter the terminal premises, in response to such a call by the passenger, would be to require the passenger to use a rental car service he does not wish to patronize, use no such service, or walk and carry his own baggage from the terminal to the defendant's place of business or to some intermediate point of contact, and, upon completion of his mission in the community, to walk back, carrying his baggage, from the defendant's place of business, or the entrance to the airport premises, to the terminal building. This would deny the passenger his right to convenient egress and ingress from and to the terminal.

We, therefore, hold that although the plaintiff may grant one or more concessions to other car rental companies and may permit them to enter and remain upon its premises for the solicitation of business, while denying such privilege to the defendant, it may not forbid the defendant, in an otherwise lawful and proper manner, to enter its premises and remain thereon for such time as is reasonably necessary to discharge an outgoing passenger, with his baggage, or to pick up an incoming passenger, with his baggage, pursuant to an actual, previously made contract or a previously received request for such service.

The judgment of the Court of Appeals, reversing the judgment of the Superior Court and, thereby, vacating the injunction granted by the Superior Court is

Affirmed.