Associated Cab Co. v. City of Atlanta , 204 Ga. 591 ( 1948 )

A petition to enjoin the enforcement of an alleged unconstitutional law or contract will not be entertained unless some personal or property right of the petitioner is violated. Plumb v. Christie, 103 Ga. 686 (30 S.E. 759, 42 L.R.A. 181); Hazleton v. Atlanta, 147 Ga. 208 (4) (93 S.E. 202); Stegall v. Southwest Ga. Housing Authority, 197 Ga. 583 (30 S.E.2d 196).

No. 16417. NOVEMBER 17, 1948. REHEARING DENIED NOVEMBER 30, 1948. The original petition of Associated Cab Company against the City of Atlanta, William B. Hartsfield, as Mayor, and Jack H. Gray as Manager of the Municipal Airport of the city; in substance alleged: The petitioner is a taxpayer of the City of Atlanta and holds a license to operate taxicabs in the city. The city is the owner of a municipal airport, and transportation to and from the airport has been furnished by Atlanta Baggage and Cab Company, and by taxicabs belonging to the petitioner and others. The city has recently conspired to grant a monopoly on the business of such transportation, and the mayor has been authorized to sign a contract for the exclusive right, privilege, and franchise to transport passengers from the airport, so as to exclude all others competing in said transportation. The proposed contract violates the Constitution, art. 4, sec. 4, par. 1, (Code, Ann., § 2-2701), in that "the intention and effect of the proposed contract is not only to lessen competition, but to eliminate competition, and not only to encourage monopoly, but to create a monopoly, . . for the exclusive benefit and pecuniary gain to said Cab Company, without permitting other persons similarly situated, including your petitioner, a similar right and privilege." The alleged ground for the monopoly to be created and fostered is that the city might realize revenue. The proposed contract is not for the purpose of regulating taxicabs or traffic in the interest of the public welfare, but is arbitrary, capricious, and unreasonable. The mayor, unless restrained, will sign a contract as authorized by the resolution. The prayers were for process; that the mayor be temporarily and permanently enjoined from signing the contract; that Jack H. Gray, Manager of the airport, be enjoined from seeking to enforce the contract; that the resolution adopted by council be declared null and void; and for other relief.

By amendment it was alleged: Since the filing of the petition, the petitioner has learned that the defendant mayor signed the contract shortly prior to the filing of the suit. The contract is contrary to public policy, illegal, and void, in that it violates certain stated provisions of the Constitution, and for the further reason that the contract, and resolution authorizing it, are invalid, as being in violation of certain quoted ordinances of the city. The contract violates the inherent right of the petitioner to use the public property on the same terms and conditions that other parties use it. The city, acting through its agents, officers, and employees (and especially through the defendant, Jack H. Gray), is attempting to enforce such contract and "has threatened to arrest, lock up, and physically interfere with the plaintiff and its associates and employees, and especially the drivers of taxicabs, all in violation of the rights of the plaintiff." The petitioner prayed that the contract be declared unconstitutional and void, and that the defendants be enjoined and restrained, both temporarily and permanently, from interfering with the petitioner, its agents, and employees, in the transportation of passengers from the airport. A copy of the contract was attached to the amendment as an exhibit. By a subsequent amendment the contract was further attacked as being in violation of stated provisions of the Constitution.

A general demurrer to the petition as amended was sustained, and the exception is to the judgment. In Schlesinger v. Atlanta, 161 Ga. 148 (129 S.E. 861), it was said that a city can prohibit totally or partially the transportation for hire of passengers on the streets of the city. The Schlesinger case was not a full-bench decision, but the principle there announced has been followed by this court in full-bench decisions. In Clem v. LaGrange,169 Ga. 51 (149 S.E. 638, 65 A.L.R. 1361), it was said that individuals do not have the inherent right to conduct their private business in the streets of a city, and that the city can prohibit the owners and operators of taxicabs from transporting passengers for hire upon the streets of the city. In McWhorter v. Settle, 202 Ga. 334 (43 S.E.2d 247), it was held that: "The transportation of passengers for hire in a taxicab upon the streets of a city is not an inherent right, but a privilege which the municipality, in the exercise of its discretion, may grant or refuse." See also Atlanta Veterans Transportation v. Jenkins,203 Ga. 457 (47 S.E.2d 324).

Counsel for the petitioner (plaintiff in error here) insists that the McWhorter case explodes the theory that the operation of taxicabs is a privilege and not a right. This contention is without merit. In the McWhorter case the city stipulated by ordinance the "conditions, regulations, and restrictions" for the operation of taxicabs within the city, and it was held that by the passage of such ordinance the city exercised and fixed its discretion as to the licensing of such transportation, and that all persons meeting the requirements of the ordinance would be entitled to engage in the business of operating taxicabs. It was further held that a denial of a license or permit under the facts of the case would amount to a denial of the equal protection of the law. The rule announced in Schlesinger v. Atlanta, supra, does not conflict with the holding in McWhorter v. Settles, supra. The facts of the present case clearly distinguish it from the decision in the McWhorter case. In the present case the granting or refusal to grant a license is not involved.

The petitioner has a license to operate taxicabs upon the streets of the City of Atlanta. The petition does not show any curtailment or restriction of this license. It is alleged that the petitioner is prohibited from entering upon the property known as "Atlanta Municipal Airport" for the purpose of transporting passengers from the airport, but it is not alleged that the airport is within the City of Atlanta, or that the petitioner has in any way been denied its right to operate taxicabs under its license upon the streets of the city. It is not alleged that the license granted the petitioner by the city includes the privilege of operating its taxicabs upon the property known as the Atlanta Municipal Airport.

The allegations of the petition that a named employee of the city "has threatened to arrest, lock up, and physically interfere with the plaintiff and its associates and employees, and especially the drivers of taxicabs," do not require the intervention of a court of equity. It is not alleged that the threat of an employee of the city to have the petitioner's employees arrested or interfered with is made under any authority or condition of the contract which the petitioner seeks to have declared unconstitutional and void. If there is an ordinance of the city which would authorize the arrest of employees of the petitioner in the operation of taxicabs on the property known as Atlanta Municipal Airport, it is not shown that such ordinance violates any rights of the petitioner under its license.

Courts of equity will take no part in the administration of criminal laws. They will neither aid the criminal courts in the exercise of their jurisdiction, nor will they restrain or obstruct such courts. Code, § 55-102; Gault v. Wallis,53 Ga. 675 (4); Phillips v. Stone Mountain, 61 Ga. 387;Garrison v. Atlanta, 68 Ga. 64; Pope v. Savannah,74 Ga. 365; City of Atlanta v. Universal Film Exchanges,201 Ga. 463 (39 S.E.2d 882); Atlanta Veterans Transportation v. Jenkins, supra.

The petition, as amended, in the present case does not show an unlawful interference with the rights of the petitioner to carry on its taxicab business upon the streets of the city under its license, and therefore fails to state a cause of action for equitable relief.

Judgment affirmed. All the Justices concur.