Bunn v. City of Atlanta , 67 Ga. App. 147 ( 1942 )

A municipal ordinance requiring that taxicabs and automobiles for hire shall be dedicated to the transportation of either white or negro passengers, that each vehicle shall carry a sign indicating whether it is for hire to white or to negro passengers, and that the same vehicle shall not be used for transporting both white and negro passengers together or separately, held not unconstitutional or invalid for any reason assigned. McINTYRE, J., dissents.

DECIDED MARCH 20, 1942. REHEARING DENIED APRIL 2, 1942. 1. "Individuals do not have the inherent right to conduct their private businesses in the streets of a city, and the State or city can prohibit the owners or operators of jitneys and busses from transporting passengers for hire in such vehicles upon the streets of a city.

"(a) The transportation of passengers for hire in such vehicles or otherwise is a privilege which the State or the municipality can give or withhold.

"(b) The due-process and equal-protection clauses of the Federal and State constitutions protect rights alone, and have no reference to mere concessions or mere privileges which may be bestowed or withheld by the State or municipality at will. Discrimination in the grant of favors is not a denial of the equal protection of the law to those not favored." Schlesinger v. Atlanta, 161 Ga. 148 (129 S.E. 861).

2. "As individuals have no right to transport passengers for hire in jitneys or busses on the streets of a city, and as a city can prohibit wholly or partially the conduct of such business in its streets, if the city sees fit to grant permission to individuals to conduct such business in its streets, it can prescribe such terms and conditions as it may see fit, and individuals desiring to avail themselves of such permission must comply with such terms and conditions whether they are reasonable or unreasonable." Schlesinger v. Atlanta, supra. In elaboration of the headnote just quoted, the court stated as follows: "This ordinance is of a dual character. It is prohibitive in part and regulatory in part. Having held that the prohibitive part is valid and not unconstitutional, we now have to decide whether the regulatory features thereof are valid. Undoubtedly municipal ordinance which are intended to regulate lawful occupations and business must be reasonable. Otherwise they are void. But this principle is not applicable to the transportation of passengers for hire by the owners of jitneys and busses on the streets of a city. Such operators having no right to transact such business in the streets of a city, and as the cities can wholly prohibit the conduct of such business, if they see fit to grant permission for the conduct of such business on their streets, they can fix the terms and conditions upon which such business can be transacted; and permission to transact such business being a mere privilege or favor, the cities can name any terms and conditions which they may see fit, and the courts can not hold such terms and conditions unreasonable. The power to prohibit entirely such business upon the streets includes the authority to fix conditions upon which such business can be done."

3. Applying the foregoing rulings to the facts of the instant case, the ordinance of the City of Atlanta in question was not unconstitutional or invalid for any reason assigned; and the overruling of the defendant's certiorari was not error.

Judgment affirmed. Gardner, J., concurs.