McGuire v. Wilkerson

MATSON, J. (after stating the facts as above). This proceeding presents the question of the validity of Ordinance No. 36-M of the city of Pawhuska, Okla., effective June 9, 1922, especially sections 1 and 3 of said ordinance. Said ordinance is entitled as follows: “An ordinance regulating the parking of automobiles and other vehicles within the city of Pawhuska, Okla.; regulating, limiting and providing a zone therein in which automobiles, jitneys and other vehicles conveying or transporting passengers for hire within¡ said city, or trucks or drays engaged in the business of hauling freight or merchandise for hire therein shall not be permitted to park; and providing a district therein in which the owner or driver of such automobile, truck, jitney or other vehicle engaged in the business or occupation of transporting or conveying or hauling passengers, freight or merchandise for hire, shall not park, solicit business or maintain a stand therein, and providing for necessary signs, markings, traffic regulations, and prescribing a penalty for a violation thereof,” etc. Sections 1, 2 and 3 of said ordinance read as follows : “Section 1. That all automobiles, trucks and other vehicles, except as hereinafter provided, shall be parked at an angle of forty-five degrees, with the right front wheel touching the curb, on the following designated streets and avenues, and within the following described limits, in the city of Paw-huska, Oklahoma, to wit: Main street, between its intersection with the east line of Matthews avenue and its intersection with the west line of Leahy avenue; Osage avenue, north of its intersection with the north line of Fifth street; Ki-he-kah avenue, south of its intersection with the south line of Seventh street; and Sixth street, between its intersection with the west line of Leahy avenue and its intersection with the 'east line of Ki-he-kah avenue. *42 "Sec. 2. On all other streets and avenues not mentioned in section 1 of this ordinance, said automobiles, trucks and other vehicles shall park parallel with the curb. "Sec. 3. No owner or driver of an automobile, truck or dray, jitney or other conveyance engaged in the business or occupation of conveying passengers or merchandise for hire to or from any place within or without the city of Pawhuska, Oklahoma, shall park, solicit business or maintain a stand either on the streets or avenues or on the sidewalks contiguous thereto within the limits prescribed in section I of this ordinance.” Then follow ten other sections prescribing methods of parking automobiles on various streets, prohibiting parking on certain sides of certain streets, providing for the direction traffic shall take on certain streets, repealing a eertain other ordinance of said city, declaring an emergency, all of which, provisions are not pertinent to the issues here,presented. No question is raised as to the power of the board of city commissioners of the city of Pawhuska to pass ¡local legislation on the general subject embraced within the ordinance. On the presentation of .the application for the writ, counsel for petitioner contended that the ordinance was void on two> grounds: (1) That it deprived petitioner of his property without due process of law; and (2) that it was an unreasonable discrimination against the petitioner and those engaged in a similar occupation, and that therefore it is void as an unreasonable exercise of the police power. Habeas corpus will lie to discharge a prisoner restrained of his liberty by virtue of a conviction based upon a void ordinance. In re Unger, 1 Okla. Cr. 222, 98 Pac. 999. "The streets and highways of the state belong to the-public. They are built and maintained at public expense for *43 the use of the general public in the ordinary and customary manner. The state, and the city as an arm of the state, has absolute control of the streets in the interests of the public. * * * The use of the streets as a place of business or as a main instrumentality of business is accorded as a mere privilege and not as a matter of natural right.” Hadfield v. Lundin, 98 Wash. 657, 168 Pac. 516, L. R. A. 1918B, 909, Ann. Cas. 1918C, 942. The petitioner would have no vested right to use the streets for carrying on a private businéss as a common carrier, and the city has the power to regulate the operation of jitney busses over the streets. State v. Pitney, 79 Wash. 608, 140 Pac. 918, Ann. Cas. 1916A, 209; Nolen v. Riechman (D. C.) 225 Fed. 812; Ex parte Sullivan, 77 Tex. Cr. R. 72, 178 S. W. 537; Rast v. Van Deman & Lewis Co., 240 U. S. 342, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455; Desser v. Wichita, 96 Kan. 820, 153 Pac. 1194, L. R. A. 1916D, 246. A valid ordinance stands on the same footing as a statute, and its construction is fo:q the court. Berry on Automobiles (2d Ed.) § 68, p. 80. Whether or not an ordinance is reasonably necessary is committed in the first instance to the municipal legislative body, and thei ordinance when passed is presumptively valid. Berry on Automobiles (2d Ed.) § 69, p. 82. In Swann et al. v. Baltimore City, 132 Md. 256, 103 Atl. 441, the Court of Appeals of the state of Maryland held a statute of that state “authorizing the board of police commissioners in the city of Baltimore to set aside and designate certain plaees therein to be occupied and used as public or private stands for hackney carriages, to stipulate the number which may occupy and use such stands, and make regulations for their occupation and use, and also providing a fine for vio-. *44 lating its provisions and regulations made by the board,” to not deprive the owners and operators of such vehicles of their business or property without due process of law. In Yellow Taxicab Co. v. Gaynor, 143 N. Y. Supp. 279 (82 Misc. Rep. 94), it is held: “Parties maintaining hack stands in the streets under contracts with the owners or licensees of abutting property had no property rights in the streets within Const. N. Y. art. 1, § 6, and Const. U. S. Amends. 5 and 14, providing that no person shall be deprived of his property without due process of law, and hence an ordinance abolishing such hack stands was not invalid, since abutting owners could not, by their private contracts, confer any right upon the hackmen inconsistent with] the right of thé local authorities to regulate the business of hackmen and prescribe reasonable regulations as to the use of the streets.” In Sanders et al. v. City of Atlanta et al., 147 Ga. 819, 95 S. E. 695, it is held: • “A city ordinance, providing that ‘no taxicab, motor bus, hack, or other vehicle for hire shall park pn any street within the fire limits of the city of Atlanta longer than to discharge or take on passengers, unless in actual service, except in front of railroad stations, and except that three taxieabs or hacks, for the exclusive use of the patrons of hotels, shall be allowed to park either in front or on the side of hotels, where permission is obtained in writing from the proprietor of such hotel,’ and that ‘no, hotel proprietor can give permission to park in front of any place of business occupying the store on the ground floor facing the' street, ’ etc., and providing a fine not exceeding $50, or imprisonment on the public works not exceeding 30 days, either or both penalties to b'e inflicted at the discretion of the recorder, for a violation of the ordinance, is valid as against the objection that it is unreasonable and confiscatory. See Berry on Law of Automobiles, § 64; Pugh v. Des Moines, 176 Iowa, 593, 156 N. W. 892, L. R. A. 1917F, 345; Com. v. Fenton, 139 Mass. 195, 29 N. E. 653; Cohen v. *45 New York, 113 N. Y. 532, 21 N. E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506.” In the ease of Pugh v. City of Des Moines et al., 176 Iowa, 593, 156 N. W. 892, L. R. A. 1917F, 345, the Supreme Court of Iowa held an ordinance prohibiting the parking of automobiles between fixed times in the streets of a restricted area, but allowing them to stand not over 20 minutes while such vehicle is being loaded or unloaded, to be not invalid. In City Cab Co. v. Hayden, 73 Wash. 24, 131 Pac. 472, L. R. A. 1915F, 726, Ann. Cas. 1914D, 731, it is said: ‘ ‘ The general power of municipalities to regulate and control the conduct of hackmen and others soliciting the privilege of carrying travelers from, railroad depots to their place of destination cannot, we think, be successfully questioned. This the city must do in the interest of good order, public peace and safety.” In the case at bar, the petition discloses no property, rights which the petitioner would be unlawfully deprived of by the continued enforcement of the ordinance. Petitioner and others operating automobiles for hire in the city of Pawhuska have no' property rights in the streets of that city that would be superior to the regulation adopted by the board of commissioners under its police power as delegated by the laws of this' state. The city of Pawhuska having authority to pass reasonable regulations governing automobiles operated on its streets for hire, this court would not be authorized to declare the provisions of the ordinance here attacked unreasonable, unless it clearly appeared that they were so. Numerous other cases from various'1 states, construing ordinances and statutes regulating the operation of jitney busses and other automobiles used for hire over the public highways and streets, might be cited. But from what has heretofore been stated, and from the authorities above cited, we think it *46 sufficiently appears that the ordinance in question is not unreasonable, discriminatory, nor arbitrary, nor does it'deprive petitioner of his liberty or property without due process of .law. 1 The writ is denied, and petitioner remanded to the custody uf respondent, chief of police of the city of Pawhuska. DOYLE, P. J., and BESSEY, J., concur.