Fritz v. Presbrey , 44 R.I. 207 ( 1922 )

The above entitled proceedings are bills in equity filed by certain complainants who allege that in the city of Providence they have been duly licensed to engage in the business of transporting passengers for hire by means of motor vehicles, termed "motor buses" under the provisions of Chapter 1263, Public Laws 1915, and popularly called "jitneys."

The complainants seek to restrain the Board of Police Commissioners and the Superintendent of Police of Providence from enforcing against the complainants the provisions of a certain ordinance of said city regulating the operation of motor buses, and prescribing and limiting the route or routes to be traveled by such motor buses within said city.

The causes were tried before a justice of the Superior Court upon the prayer of each complainant for a temporary injunction. By his decrees said justice granted these prayers and temporarily restrained the respondent Board and Superintendent from enforcing said ordinance. The causes are now before us upon the respondent's appeals from said decrees.

The ordinance in question prescribes that motor buses shall not be operated within a specified area in the center of the retail business section of Providence. In accordance with the direction contained in said ordinance the Board of Police Commissioners have fixed locations for the termini of motor buses just without said prescribed area. The objections of the complainants are that said ordinance and the action of the Board of Police Commissioners pursuant thereto are gross abuses of the regulatory power of the city council; that said ordinance is unreasonable, unjust and discriminatory; that its provisions are unrelated to public safety or convenience, and that the complainants, because they are prevented from transporting their passengers through said area and to its center, have been affected in their business and have suffered and are likely to suffer pecuniary loss.

Said ordinance was adopted in reliance upon authority, given by Chapter 1263, Public Laws 1915. Said statute among other things, provides that any city or town council may by ordinance make such general rules and regulations governing the use and operation of motor buses in the streets and public places of such city or town as it may deem necessary or desirable for the public safety, welfare and convenience and "especially to prevent congestion of traffic, may itself, or by such officer, board or commission as it may authorize, prescribe and limit the route or routes to be traveled by such motor buses, respectively" and further any city or town council may prescribe that no motor bus shall be operated within such city or town without a special annual license therefor. Section 6, of the Motor Bus Ordinance of the city of Providence, as amended by Chapter 276 of the ordinances of said city approved December 20, 1920, provides for such special annual license and further provides that "Every motor bus license shall be subject to the condition that if at any time legal provision is made, prescribing, limiting, altering or abolishing any route or routes to be traveled by motor buses, such license and the bus licensed shall be subject thereto and operated accordingly."

It is manifest that by Chapter 1263 of the Public Laws the General Assembly intended to delegate to the city council of Providence, in common with the other city and town councils of the state, a part of its police power. Within the territorial limits of Providence, for the public safety and convenience, the city council was authorized to regulate the business of operating motor buses, and in order to prevent congestion of traffic it might prescribe and limit the routes which motor buses should travel. These considerations of public welfare undoubtedly present a field for the exercise of the police power.

At the outset in the consideration of this matter we are met by the contention of the respondents that the Superior Court and this court is without jurisdiction to inquire into or pass upon the question of whether this ordinance is unreasonable, oppressive and not conducive to public safety and convenience, because the ordinance was not adopted by virtue of any implied power of the city council but upon an express grant of power from the General Assembly. We can not agree with this contention of the respondents. The opinions of the courts in other jurisdictions cited by the respondents as authorities for their position do not, when analyzed, support but are opposed to the respondents' claim. The correct rule is that set out in the very able and comprehensive brief and argument of counsel for the complainants. If an ordinance is passed in virtue of and in exact conformity with an express grant of legislative power in which the manner of its exercise is prescribed in definite and precise terms, a court will not pass upon the validity of such an ordinance. The attack, if any, must be made against the constitutionality of the enabling statute. Such a case would have been presented if the General Assembly had in express terms empowered the city council to exclude the operation of motor buses upon the area defined in the ordinance now under consideration. The power given to the city council by Chapter 1263 of the Public Laws to prescribe and limit the routes of motor buses is expressly granted but in general terms and the mode of its exercise is left to the discretion of the city council As to ordinances passed under such a grant of power or as to those adopted in reliance upon general implied powers, the courts will consider their reasonableness and pass directly upon their validity. State v. Mayo, 106 Me. 62; In re Anderson,69 Neb. 686; City of Emporia v. Railway Co. 94 Kan. 718; Phillipsv. City of Denver, 19 Colo. 179; Haynes v. Cape May, 50 N.J.L. 55; Chicago v. Ripley, 249 Ill. 466; City of Lakeview v.Tale, 130 Ill. 247; Shelbyville v. Cleveland etc., Ry. Co.146 Ind. 66.

In considering the reasonableness of the ordinance in question, passed under the delegated police power of the state, the court will apply to its provisions the tests which are applicable in determining the validity and constitutionality of a statute having a like purpose. When called upon courts will scrutinize legislation purporting to be enacted for the public welfare to see if the object sought calls for the exercise of the police power. If such object can fairly be said to be a regulation to promote the safety, health, morals, comfort or convenience of the community, then courts will not interfere with the wide scope of legislative discretion in determining the policy to be employed in its exercise, unless it appears that the discretion has been abused and the legislative action is so clearly unreasonable and arbitrary as to be oppressive. In EastShore Land Co v. Peckham, 33 R.I. 541, at 548, this court said, "All statutes are presumed to be valid and constitutional and the burden of proving the unconstitutionality of any statute is upon the party raising the question; furthermore, the rule is that he must prove it beyond a reasonable doubt." In State v.Narragansett, 16 R.I. 424, at 440, the court said, "The rule generally laid down is, that statutes should be sustained unless their unconstitutionality is clear beyond a reasonable doubt. A reasonable doubt is to be resolved in favor of the legislative action and the act sustained." Also see Cleveland v. Tripp13 R.I. 50. In the Opinion to the Governor, 24 R.I. 603, it was said, "Both this court in State v. Peckham, 3 R.I. 289, and the Supreme Court of the United States in Munn v. People 94 U.S. 113, have declared that the legislature is the exclusive judge of the propriety and necessity of legislative interference within the scope of legislative power. If a state of facts could exist which would justify legislation, it is to be presumed that it did exist" The complainants' criticism of the language of the court in some of these cases indicates a misconception of the nature of an inquiry as to the constitutionality of an act of the General Assembly. The ordinary rules as to proof have no application in such proceeding. The inquiry is a consideration by this court in regard to the constitutional propriety of the act of a coordinate branch of the government. Before this court will declare the unconstitutionality of such act, in either a civil or criminal proceeding, the court must be convinced of the in validity beyond a reasonable doubt. In delivering the opinion of the court in Wellington et al, Petitioner, 16 Pick. 87, at 95, CHIEF JUSTICE SHAW said: "when called upon to pronounce the invalidity of an act of legislation passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt." In Horton v. Old Colony Bill Posting Co., 36 R.I. 507, the court in declaring the validity of the so-called Billboard Ordinance, adopted by the Providence City Council, held that "In view of the fact that the lawmaking body has far more opportunity to ascertain and meet the public need than the court can have, and in view of the wide latitude permitted the legislative branch in determining the public needs and the appropriate remedies, the court should uphold the limitations on size imposed by this section, which in our opinion are not clearly unreasonable."

The regulation of vehicular traffic in the crowded streets of the city of Providence for the purpose of promoting the safety and convenience of the people using those streets presents a proper subject for the exercise of the police power. Whether the policy of the city council, embodied in the ordinance, presents the best scheme of regulation is not a judicial question. The complainants should not be granted an injunction, permanent or temporary, until they have established unmistakably that the ordinance in question is an arbitrary exercise of power or that its provisions have no reasonable relation to the promotion of the safety and convenience of the public, as a whole, in its use of the highways within said prescribed area. This the complainants have failed to do. They do not question that the traffic congestion in the streets and public places included in said area is the greatest in the city; that the city council has endeavored to relieve this congestion by restricting the length of time that vehicles may stand in said streets and public places, by entirely prohibiting such standing in some locations, by stationing traffic policemen in various places in such area to direct the movement of traffic, and by providing that in some of said streets traffic shall proceed in one direction only. The complainants have not attempted to deny that the removal of the business of operating motor buses from this area will tend to promote the safe and convenient use of the highways therein by the community generally. At the hearing before said justice the complainants presented the testimony of two witnesses, who said they sometimes patronized motor buses operating on Broadway, and that they found the terminus of that line without said area less convenient for them than the former terminus within said area. Undoubtedly many witnesses might be produced who would give similar testimony. The city council sought to relieve to some degree the congestion in the most congested district of the city, and for the public safety, welfare and convenience removed the business of operating motor buses from that district. The testimony of patrons of such buses that, as to them, the new termini were less convenient than the old does not tend to establish that the removal of said buses from the district did not relieve such congestion and that the safety, welfare and convenience of the large number of persons using the streets of said district at all hours of the day were not promoted thereby, or that the policy adopted by the city council has no reasonable relation to the legitimate objects sought. The only other matter presented to said justice was the testimony of several holders of motor bus licenses to the effect that since the change in termini there has been a decrease in the number of their passengers and a consequent falling off in their receipts from fares. This, however, in the circumstances furnishes no ground for relief. As we have seen above the ordinance was an exercise of delegated police power directed toward an object well within the scope of that power and having a reasonable relation thereto. Although it may have resulted in pecuniary loss to the licensees that does not render the ordinance invalid unless it is plainly shown that it was adopted in arbitrary and oppressive disregard of their rights. There was nothing produced at the hearing which would warrant such a finding. These licensees are subject to the ordinary rule, that the individual is without relief if he finds his business injuriously affected by a proper exercise of police power. In this case though such licensees may regret the result they have no ground for complaint for they accepted licenses which contained the express provision that they were subject at any time to a legal provision prescribing, limiting, altering or abolishing any route or routes to be travelled by motor buses.

There was nothing before the Superior Court that would warrant a finding that the ordinance in question was invalid. Everything points to its validity. The ordinance being valid it was error to stay its operation by temporary injunction. It appears from the decision of said justice upon which the decrees were based that he felt constrained to grant the injunction upon what he regarded as the balance of convenience between the parties. The principle of the balance of convenience is without application in favor of a complainant who is himself without legal right and is seeking to restrain a lawful act. This court has approved the rule that the issuance of a preliminary injunction rests in the sound discretion of the court; but an injunction will not be supported when it is clear that the Court's discretion has been exercised in an illegal manner or in favor of a complainant who has not made out a prima facie case for relief. Rhodes Bros. Co. v. Musicians Union, 37 R.I. 281, 290; Armour v. Hall, 38 R.I. 300; Blackstone Hall Co. v. R.I.Hospital Trust Co. 39 R.I. 69.

The decrees appealed from are reversed. The injunctions granted are vacated and the causes are remanded to the Superior Court for further proceedings.