Council Bluffs Transit Co. v. City of Omaha

Simmons, C. J. It will be necessary in this opinion to refer to the city of Omaha, Nebraska, hereinafter called Omaha, and to the city of Council Bluffs, Iowa, hereinafter called Council Bluffs. The Omaha & Council Bluffs Railway and Bridge Company operates through an agency agreement with the Omaha & Council Bluffs Street Railway Company. These corporations will be referred to re — 719 — spectively herein as Bridge Company and Railway Company. The Council Bluffs Transit Company will be hereinafter called Transit Company. So far as material here, Transit Company seeks a decree declaring that ordinance No. 16477 of Omaha is unconstitutional and void; that certain provisions of ordinance No. 14924 of Omaha are not applicable to or enforceable against this plaintiff and that they be declared discriminatory, unconstitutional, and void; and that Omaha be enjoined from enforcing said ordinances as to the plaintiff “* * * or from in any manner whatsoever interferring (sic) with the plaintiff or its representatives in the operation of its buses within the City of Omaha, Nebraska, in compliance with the orders of the Interstate Commerce Commission * * *” and for equitable relief. Transit Company secured first a restraining order and then a temporary injunction protecting its operations pending the determination of the issues presented. Issues were made, and trial was had. The court decreed that the ordinances involved were valid and constitutional and enforceable against Transit Company, dissolved the restraining order and temporary injunction, and dismissed Transit Company’s petition. Transit Company appeals. We affirm the judgment of the trial court. * The two ordinances involved are No. 14924, section 29-1.4(a), hereinafter referred to as No. 14924, and No. 16477. Ordinance No. 14924 was adopted by Omaha in 1941, and so far as material here is: “ ‘* * * it shall be unlawful for the driver of any auto bus to deviate from the route set forth by the permit granted by the City Council, except at either termini of such route, and in the event such driver so deviates, he shall return to said termini before resuming his running on such route, and, except in case any street or thoroughfare is blocked or obstructed, said vehicle shall be permitted to operate — 720 — temporarily, until, the obstruction or blockage is removed, over the best alternative route, subject to the direction of the City Council’.” Ordinance No. 16477 so far as material here is: “No common carrier of passengers operating with motor buses between Council Bluffs, Iowa, and Omaha, Nebraska, on or before October 9, 1949, shall operate the said buses over any of the streets of the City of Omaha other than those specified by name or highway number in the certificate of the said carrier from the Inter-state Commerce Commission and those actually used by it on regular schedules on or before October 9, 1949.” Ordinance No: 16477 was passed October 25, 1949, and by its terms became effective 15 days thereafter. Omaha and Council Bluffs are neighbor cities on the Missouri River. For many years Bridge Company provided interstate transportation of passengers by streetcar between the two cities. Bridge Company and Railway Company, operating under the agency agreement, had intracity rights in both cities. The intracity rights in Council Bluffs terminated in 1948 and Transit Company was granted those rights. Transit Company, Bridge Company, and Railway Company then applied to the Interstate Commerce Commission for temporary authority to operate as common carriers by motór vehicle for hire between Omaha and Council Bluffs. The commission granted temporary authority to Transit Company and Bridge Company to operate interstate motor bus lines as common carriers of “Passengers, between Omaha, Nebraska and Council Bluffs, Iowa, over U. S. Highway 75 and city streets.” Railway Company’s application was denied. We are here concerned with claimed rights of Bridge Company and Transit Company. Omaha’s numbered streets begin from the east. U. S. Highway No. 75 enters Omaha on Douglas Street, turns south at Thirteenth Street, and follows that route out of the city. The streets, whose use is here in dispute, — 721 — are to the west of Thirteenth Street in Omaha. Bridge Company for many years turned its cars in interstate operation at Twentieth Street. Following the grant of the Interstate Commerce Commission authority, Bridge Company put on buses and turned them at Eighteenth Street, going west ón Harney from Fourteenth to Eighteenth Streets, thence north to Farnam Street, thence east on Farnam Street to Tenth Street. Bridge Company did not have specific authority to make this routing, Omaha’s position being that it had that right under existing franchise. Transit Company does not challenge that contention here. In any event, it is agreed that they had that express authority following the passage of ordinance No. 16477. Bridge Company then had turned first at Twentieth Street and later at Eighteenth Street in its interstate operation. Following the grant of authority by the Interstate Commerce Commission, Transit Company commenced operations on September 15, 1948, making its turn on Fourteenth Street between Douglas and Harney Streets, having a day prior thereto applied to Omaha for authority to go west on Harney from Fourteenth to Eighteenth, thence north across Farnam Street to Douglas, and thence east to U. S. Highway No. 75. On October 19, 1948, Omaha denied this application and by resolution granted temporary authority which required that the turn be on Fourteenth Street. On August 24, 1949, Transit Company filed its application with Omaha for authority to operate on the identical route west of Fourteenth Street that was being then followed by Bridge Company. This application was denied on October 4, 1949. On October 10, 1949, Transit Company commenced operations west of Fourteenth Street on the route covered by its application that had been denied six days before. Omaha then passed ordinance No. 16477, the effect of which was to make Transit Company’s operation west of Fourteenth Street a violation of the ordinance and to — 722 — permit Bridge Company’s operations west to Eighteenth Street. Omaha then undertook on November 10, 1949, to enforce ordinance No. 16477 by proceedings in municipal court against a Transit Company employee. That court held that the ordinance was discriminatory and unconstitutional. Omaha then on November 19, 1949, undertook to enforce ordinance No. 14924 by like proceedings. The action here was brought on November 21, 1949, with the result heretofore stated. Transit Company charged that ordinance No. 16477 was unconstitutional in that it discriminated between companies within the same class and deprived it of its equal right to engage in a lawful business in Omaha, and therefore deprived it of its property, all in violation of Article XIY, section 1, of the Constitution of the United States, and Article I, section 3, of the Constitution of Nebraska. Transit Company charged that ordinance No. 14924 was not enforceable against companies holding authority from the Interstate Commerce Commission to operate in Omaha, and that it violated the commerce clause of the Constitution of the United States and was discriminatory and unconstitutional for the reasons assigned as to ordinance No. 16477. Omaha answered that the ordinances were enacted in the exercise of its police power generally and particularly its power to control traffic on the streets; that there was no conflict between the ordinances and the orders of the Interstate Commerce Commission; and that the order of the commission left it to Omaha to determine the streets to be used by the two carriers in the turn-around in their interstate operations. Transit Company bases its appeal here on the ground that both it and Bridge Company are operating under the same authority of the Interstate Commerce Commission granted at the same time; that the action of Omaha in limiting its use of the streets to Fourteenth — 723 — Street and allowing Bridge Company to operate to Eighteenth Street is not a reasonable exercise of Omaha’s police power and is discriminatory, unconstitutional, and void; and that both companies have the same rights to the use of Omaha streets. It states the questions submitted as: Do these ordinances arbitrarily discriminate between the two companies; do-they operate uniformly upon each company; and the question of “* * * whether in the exercise of this power it has discriminated against the plaintiff company * * *.” It states that “* * * Omaha under its police power has the authority to regulate the operation of buses engaged in interstate commerce and traveling over the streets of the city.” Omaha’s position is that there has been no unlawful or unreasonable discrimination. In adopting the two ordinances here involved, Omaha acted, legislatively. State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N. W. 2d 683. The long established and often followed rule is: “* * * while it is competent for the legislature to classify, the classification, to be valid, must rest on some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to the objects classified.” State ex rel. Dawson County v. Farmers & Merchants Irrigation Co., 59 Neb. 1, 80 N. W. 52. Municipal corporations are prima facie the judges of the necessity and reasonableness of ordinances. A legal presumption exists in their favor unless the contrary appears on their face or unless unreasonableness is established by clear and unequivocal evidence. Webber v. City of Scottsbluff, 141 Neb. 363, 3 N. W. 2d 635. “In determining the validity of a city ordinance regularly passed in the exercise of police power, the court will presume that the city council acted with full knowledge of the conditions relating to the subject of municipal legislation.” “In the exercise of police power delegated by the — 724 — state legislature to a city, the municipal legislature, within constitutional limits, is the sole judge as to what laws should be enacted for the welfare of the people, and as to when and how such police power should be exercised.” City of Omaha v. Glissmann, 151 Neb. 895, 39 N. W. 2d 828. The burden is upon a person attacking an ordinance as invalid to show that a regulation imposed by it is so unreasonable and arbitrary as to amount to depriving such person of property without due process of law. Clough v. North Central Gas Co., 150 Neb. 418, 34 N. W. 2d 862. The only discrimination that appears here is that Transit Company is required to turn its route at Fourteenth Street, while Bridge Company is permitted to turn its route at Eighteenth Street. From that we are expected to assume that Transit Company is denied access to potential traffic that is accorded to Bridge Company in that four-block-long area. There is nothing in this record upon which such an assumption can be based. Transit Company argues here that prior to 1948, neither company was engaged in the business of operating motor buses for the transportation of passengers in interstate commerce; both companies are operating under the identical temporary authority of the Interstate Commerce Commission, an authority that does not specify the city streets over which each may operate; both companies are engaged only in interstate commerce in Omaha, and hence they are similarly situated and are engaged in operating a business in the same class. We refer first to Transit Company’s contention that prior to September 1948, neither company had been engaged in the business of operating motor buses for the transportation of passengers in interstate commerce. The applications here referred to have been determined by Division 5 of the Interstate Commerce Commission. See Omaha & Council Bluffs Railway & Bridge Com — 725 — pany Common Carrier Application, 49 M. C. C. 445. In the course of its discussions and conclusions the division considered a comparable contention of Transit Company and held that under the circumstances there shown they were justified in treating the past operations of Bridge Company and Railway Company “* * * as having been conducted by the companies as a single carrier” and that the applications of Bridge Company and Railway Company were “* * * in reality for authority merely to utilize a new facility in the rendition of a service they have been performing for a half century.” We follow that reasoning and conclusion here. Transit Company relies upon our decisions in Ernesti v. City of Grand Island, 125 Neb. 688, 251 N. W. 899; Webber v. City of Scottsbluff, supra; State ex rel. Taylor v. Hall, 129 Neb. 669, 262 N. W. 835; and City of Lincoln v. Lincoln Gas & Electric Light Co., 100 Neb. 182, 158 N. W. 962. The Ernesti case specifically recognizes the rule as heretofore stated from State ex rel. Dawson County v. Farmers & Merchants Irrigation Co., supra. The cases recognize the rule but find no valid basis for the discrimination in the facts of the case. Here we have no facts upon which to base a finding to overcome the presumption of validity of the ordinánces under the above rules. There is no evidence here as to the amount of the use of the streets that either of the companies is making or proposes to make of the streets involved, neither is there any evidence of a comparative use. Omaha has knowledge of the width of its streets and the uses to which they are put; it has knowledge of its traffic problems, the density of use, and all other matters. It knows whether or not it is necessary to measure out the use of its streets and the extent of the use. It has only one set of streets. In the absence of evidence, as here, it is presumed that it acted with full knowledge of all conditions in determining when and how its police power should be exercised. — 726 — It then becomes a question of law as to whether or not Omaha has the power to grant the use of certain streets to Bridge Company and deny the use of those streets to Transit Company. Transit Company here asserts the right to select the same route through Omaha that Bridge Company has. been granted, or any other route that it chooses, and that without regard to any problem of traffic, public safety, or otherwise, that it is the duty of Omaha to solve. The issue then is, may Omaha designate separate routes within the city to be followed by such carriers in interstate commerce? The problem must be determined here in the light of the presumptions of fact and validity that follow from the state of this record. In State v. Hind, 143 Neb. 479, 10 N. W. 2d 258, we held: “The city clearly has the right by ordinance to prescribe reasonable regulations for the control of traffic on its streets as a matter of public safety.” We also approved this rule: “ ‘A police regulation, obviously intended as such, and not operating unreasonably beyond the occasions of its enactment, is not invalid simply because it may affect incidentally the exercise of some right guaranteed by the Constitution. In all- matters within the police power some compromise between the exigencies of public health and safety and the free exercise of their rights by individuals must be reached.’ ” It is apparent that the Interstate Commerce Commission has not undertaken to exercise any authority in this matter. It also is apparent that the ordinances here involved do not prevent either company from operating in interstate commerce. The Supreme Court of the United States has held: “Where traffic control and the use of highways are involved and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the' local regulation materially interferes with interstate commerce.” Railway Express — 727 — Agency, Inc. v. New York, 336 U. S. 106, 69 S. Ct. 463, 93 L. Ed. 533. In dealing with the problem of restricting the volume of traffic, the Supreme Court of the United States has held that it is not necessary to limit the extent of each certificate holder’s use, and that “The guaranty of equal protection does not prevent the State from adopting the simple expedient of prohibiting operations by additional carriers.” Bradley v. Public Utilities Commission, 289 U. S. 92, 53 S. Ct. 577, 77 L. Ed, 1053, 85 A. L. R. 1131. The same rule would, of course, apply to cities. That it seems to us is all Omaha has done here. . Evidence that one interstate carrier is granted the right by a city to use certain streets is not a sufficient fact to establish the right of another interstate carrier, operating under a like interstate authority, to use the same streets. A number of reasons are given for such a rule. As said in Railroad Commission v. McDonald (Tex. Civ. App.), 90 S. W. 2d 581, the use made by the first permittee may be all that the public safety and convenience will permit. A like conclusion was reached in Motor Transport & Truck Co. v. Public Utilities Commission, 125 Ohio St. 374, 181 N. E. 665, where the court pointed out that the record did not disclose that the order would result in either a substantial interference with or prohibition of the business of one engaged in interstate commerce, or that the carrier could not operate over another highway as well as over the congested one. See, also, People’s Transit Co. v. Henshaw, 20 F. 2d 87; Town of Ascarate v. Villalobos (Tex.), 223 S. W. 2d 945. An authoritative text states the rule generally as follows: “The right to operate vehicles on the streets of a municipality as a common carrier for hire is not an inherent or vested right, but is in the nature of a special right or privilege which may be exercised only by license or permission of the state, or of the municipality, under its delegated powers, and an individual conducting such a business without such permission — 728 — may be deprived of such right without compensation, as long as his right to pass oyer streets and do anything incident to their use for purposes of travel is not interfered with. “As a mere privilege, the use of streets by common carriers is subject to reasonable control and regulation, and, since such a right or privilege is special, unusual, and extraordinary, the power to regulate and restrict such use of the streets is broader than in respect of their use by the general public. The state or municipality, within the limits of its delegated powers, may determine to what extent or on what streets such an extraordinary use as encroaches on the paramount rights of the public at large will be permitted, and it may discriminate against those making such use of the streets, and may either grant or withhold the right or privilege of operating vehicles for such a purpose, and may grant it to some and refuse it to others, without violating the constitution, except that a license or permission cannot be granted to some and refused to others who are willing to comply with the terms and conditions of the regulation providing for such license or permission.” 64 C. J. S., Municipal Corporations, § 1760, p. 199. We conclude, as did the trial court, that the ordinances are valid. Its judgment is affirmed. Affirmed.