City of Montgomery v. Orpheum Taxi Co. , 203 Ala. 103 ( 1919 )

Appellee filed the bill in this cause seeking to enjoin the enforcement of an ordinance of the city of Montgomery adopted for the regulation of taxicabs on the public streets of the city.

The ordinance for its own purposes defines the term "taxicab" as embracing "all automobiles and other vehicles of like construction and operation employed in the carriage of passengers for hire within the city of Montgomery," and provides, inter alia, that every person driving or operating a taxicab must procure a license from the city clerk, must submit to an examination by the city clerk and city treasurer as to his qualifications and fitness to operate a taxicab in the city, must be recommended in writing by three reputable and representative citizens of the city, must pay a fee of $1, and must furnish and maintain a bond in the sum of $500 with one or more sureties, payable to the city for the use and benefit of any person injured or damaged thereby. The statute of the state governing all persons who operate motor vehicles as chauffeurs provides, in short, that the secretary of state shall issue licenses to all applicants on payment of a fee of $5 and upon other terms and conditions different in some respects from those prescribed by the ordinance. Section 32 of the act provides:

"Local Ordinances Prohibited. — Except as herein otherwise provided local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner or chauffeur or other authorized driver to whom this act is applicable, any additional license or permit for the use of the public highways, or excluding any such owner, chauffeur or other authorized driver from the free use of such public highways, nor to pass, enforce or maintain any ordinance, rule, or regulation regulating motor vehicles or their speed contrary to the provisions of this act, nor shall any such law in force now or hereafter enacted have any effect; provided, however, that the powers given to local authorities to regulate vehicles offered to the public for hire and processions, assemblages, or parades in the streets or public places and all ordinances, rules and regulations which may have been or which may be enacted in pursuance of such powers shall remain in full force and effect; and, provided further, that local authorities may set aside for a given time a specified public highway for speed contests or races, to be conducted under proper restrictions for the safety of the public, and provided further, that local authorities may exclude motor vehicles from any cemetery or grounds used for the burial of the dead; provided, further that suitable ordinances, rules and regulations may be passed regulating speed to a reasonable slowness at crossings or in turning curves or in congested highways and streets." Gen. Acts 1911, p. 648.

It is clear on the face of the ordinance that it requires from every person driving or operating a taxicab an additional license or permit for the use of the public highways. The provisions affect the drivers of the taxicabs operated by appellee. The plain language of the body of section 32 of the act, "except as herein otherwise provided," prohibits local authorities to require an additional license of any authorized driver to whom the act is applicable, "nor shall any such law now in force or hereafter enacted have any effect, provided, however, that the powers given to local authorities to regulate vehicles offered to the public for hire and processions, assemblages, or parades in the streets or public places," shall remain unaffected. Other provisos relate to the enactment of ordinances governing the speed limit at designated places and permit the exclusion of motor vehicles from cemeteries. In ascertaining the class of drivers affected by section 32 of the act in respect of their personal license it is necessary of course to take into consideration the provisions of section 23 of the act, for the last-named section deals with the subject of the licensing of chauffeurs or drivers by the secretary of state upon terms and conditions different, as we have said, from those prescribed by the ordinance, and the state's license is the one contemplated and made exclusive by section 32 of the act. But the provisions of section 23 do "not apply to an owner of a motor vehicle for private use or any member of his family, or other person authorized by him and otherwise qualified under the provisions of this act." The provisions of section 23 do, then, apply to chauffeurs or drivers of motor vehicles offered to the public for hire, and if the provision of section 32 against the requirement of an additional license does not apply to such chauffeurs or drivers, it has no field of operation and the Legislature must be held to have expressed, in one place or the other, an elaborate and apparently careful enactment on the subject of licenses to which no meaning or effect can be assigned. We cannot accept that as a sound interpretation of the statute. We can only assume that the Legislature meant what it said when it provided for the issue of a personal license to the chauffeurs or drivers of motor vehicles offered to the public for hire, and then provided that no additional license should be required by local authorities; nor is it apparent how or in what respect the proviso saving the powers given to local authorities to regulate vehicles offered to the public for hire conflict with the provisions as to the licensing of chauffeurs or drivers. The former has to do with the manner of using such vehicles on the public highways; the latter has to do with the personal qualifications and the licensing of the drivers or chauffeurs of such vehicles as conditions precedent to the use of the highways. We are not concerned about the wisdom of the statute, but we think that it may be assumed that the true and useful intent of section 32 is to prevent the imposition by local authorities of capricious or unequal burdens under the guise of license taxes. This seems to be the general policy of the act; for it provides that all motor vehicles shall be registered with the secretary of state, and that the fees to be paid thereupon "shall be in lieu of all other privilege licenses which the state of Alabama or any county or municipality or other subdivision thereof might impose." Section 9. We are of the opinion, therefore, under the ordinance, in so far as it undertakes to require of appellee's chauffeurs or drivers a license in addition to that issued, such license is void and of no effect, because prohibited by section 32 of the act. Nor can we approve the suggestion that our construction brings section 32 of the act into conflict with section 220 of the present Constitution. The last-named section, reading as follows:

"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"

— is an amplification of section 24 of the Constitution of 1875. Its purpose is, not to confer on municipalities the power to deny to persons or corporations the right to the ordinary use of the streets, avenues, alleys, or public places, as appellant seems to suggest, but to inhibit the legislative grants, especially gratuitous grants, without the consent of the municipal authorities, of the use of the streets, avenues, etc., in the construction or operation of public utilities or other business enterprises requiring the permanent occupation of a part of the streets, avenues, etc., on which it may be proposed to locate them. The section of the Constitution has no relation to such use as appellee, in common with the general public, makes of the streets of the city in merely passing over and along them. Except as limited by section 220, the authority of the Legislature over streets and highways is ample and unrestrained. State ex rel. Mobile v. Board of Revenue, etc.,180 Ala. 489, 61 So. 368.

But it is urged that the court of equity had no jurisdiction to enjoin the enforcement of the ordinance, even though invalid. Relief against the enforcement of penal ordinance has been most frequently denied on the grounds that the proceedings for their enforcement were of a criminal nature, and that equity declines to interfere with the administration of the criminal law. Some cases, however, deny the right to equitable interference on the ground that the complainant's defense to the prosecution affords him an adequate remedy at law. This is substantially the language of 5 Pomeroy's Equity Jurisprudence, § 354. In Brown v. Birmingham, 140 Ala. 590, 37 So. 173, McClellan, C. J., referring to the considerations above mentioned, announced the general rule to be that the chancery court is wholly without jurisdiction to enjoin such quasi criminal prosecutions, however great and irreparable the damages to result from them to the party complaining may in fact be. However, he did allow as a "so-called" exception to the general rule which he announced cases in which prosecutions under a void ordinance will destroy or impair property rights to the irreparable injury of the owner. Mr. Pomeroy says the principle is generally, but not universally, accepted that the enforcement of a void municipal ordinance may be enjoined where an injunction is necessary for the purpose of preventing irreparable injury to private rights. He also states his belief that in applying the rule (announced by Chief Justice McClellan) the courts have sometimes lost sight of its qualifications, which he states to be as well settled as the rule itself, that a court of equity may in a proper case interfere by injunction to restrain any act or proceeding, whether connected with crime or not, which tends to the destruction of property or property rights. In Bryan v. Birmingham, 154 Ala. 447, 45 So. 922, 129 Am. St. Rep. 63, after referring to the rule of Brown v. Birmingham, the court repeated in substance Mr. Pomeroy's remarks on the necessity of observing the qualifications in favor of property and property rights, citing Austin v. Austin, 87 Tex. 330, 28 S.W. 528,47 Am. St. Rep. 114; Atlanta v. Gate City Co., 71 Ga. 106; Deems v. Baltimore, 80 Md. 164, 30 A. 648, 26 L.R.A. 541,45 Am. St. Rep. 339. In Austin v. Austin the court quoted with approval from Atlanta v. Gate City Co. as follows:

"Where it is manifest * * * that a prosecution and arrest is threatened for an alleged violation of city ordinances for the sole purpose of preventing the exercise of civil rights conferred directly by law, injunction is the proper remedy to prevent injury to the party thus menaced."

And in Deems v. Baltimore it had been said that —

"Where an ordinance is void and its provisions are about to be enforced, any party whose interests are to be injuriously affected thereby may and properly ought to go into a court of equity and have the execution of the ordinance stayed by injunction."

In Bryan v. Birmingham the bill charges that the ordinance there in question created an arbitrary and unreasonable discrimination; but the court held that the evidence did not sustain the charge. In Greensboro v. Ehrenreich, 80 Ala. 579,2 So. 725, 60 Am. Rep. 130, Cuba v. Mississippi Cotton Oil Co., 150 Ala. 259, 43 So. 706, and Mobile v. Orr, 181 Ala. 308,61 So. 920, 45 L.R.A. (N.S.) 575, ordinances affecting property rights were declared void because they were not regarded as legitimate exercises of the powers conferred by the Legislature upon the municipal authorities. An instructive discussion of the underlying principle of these cases is found in Mobile v. L. N. R. R. Co., 84 Ala. 115, 4 So. 106,5 Am. St. Rep. 342. In Brown v. Birmingham we think it should be noted there was no interference with any useful business. In the Supreme Court of the United States it is well settled that, where property rights will be destroyed, unlawful interference by criminal proceedings under a void ordinance may be reached and controlled by a decree of a court of equity. Davis Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207, 218, 23 Sup. Ct. 498,47 L. Ed. 778. In Dobbins v. Los Angeles, 195 U.S. 223,25 Sup. Ct. 18, 49 L. Ed. 169, it is said that, while it is admitted that every intendment must be made in favor of the lawfulness of the exercise of municipal power making regulations to promote the public health and safety, and while it is not the province of the courts, except in clear cases, to interfere with the exercise of the power reposed by law in municipal corporations for the protection of local rights and the health and welfare of the people in the community, notwithstanding this general rule of the law, it is now thoroughly well settled by the decisions of that court that municipal bylaws and ordinances undertaking to regulate useful business enterprises are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of the police power, or whether under the guise of enforcing police regulations there has been an unwarranted and arbitrary interference with the constitutional rights to carry on a lawful business, to make contracts, or to use and enjoy property.

Appellee, a corporation, is engaged in a lawful and useful business. It is doing what every individual, subject to proper regulation, of course, is entitled to do as of common right. "The English and American courts have, we believe, without exception, held that the right to conduct one's business, without the wrongful and injurious interference of others, is a valuable property right which will be protected, if necessary, by the injunctive processes of equity." Hardie-Tynes Mfg. Co. v. Cruse, 189 Ala. 66, 66 So. 657. Appellee can only perform its corporate functions, can only do the business it is organized and authorized under the laws of the state to do, through the agency of chauffeurs employed to drive its cars. No one, however great his faith in the judicial insight of police magistrates and their willingness to declare municipal ordinances void, cares to be subjected to the annoyance of a prosecution in the police court. Criminal prosecutions under the most favorable conditions are not only unpleasant, but almost necessarily involve inconvenience and expense to the person who figures as the party defendant, and it is reasonably clear that, if every chauffeur must comply with the unlawful requirements of this ordinance or submit to a prosecution whenever he drives appellee's cars along the street, appellee's business must suffer a serious interruption for the consequences of which no one can be made to answer in damages. To paraphrase the language of Gaines, C. J., in Austin v. Austin, supra, as long as the ordinance remains undisturbed, it acts in terrorem and practically accomplishes a prohibition against appellee's business unless it be conducted according to the unlawful demands of the ordinance.

I have said enough to indicate my opinion that the ordinance is void because in conflict with the statute of the state. I do not think that other objections urged against it need be considered. The decree is right, and should be affirmed.