Victory Cab Co. v. Shaw

59 S.E.2d 573 (1950)

232 N.C. 138

VICTORY CAB CO., Inc. et al. v. SHAW et al.

No. 521.

Supreme Court of North Carolina.

May 24, 1950.

*576 Henry L. Strickland, J. F. Flowers, W. M. Nicholson, Charlotte, for plaintiffs, appellants.

John D. Shaw, Charlotte, for defendants, appellees.

SEAWELL, Justice.

The exhaustive opinion of Barnhill, J., in Suddreth v. City of Charlotte, 223 N.C. 630, 27 S.E.2d 650, obviates a recapitulation of the delegation by the General Assembly to the City of Charlotte of the authority with respect to the regulation of taxicabs. Since that opinion was rendered G.S. § 160-200 has been amended to provide, inter alia, that a municipality "may grant franchises to taxicab operators on such terms as it deems advisable."

In the case of State v. Stallings, 230 N.C. 252, 52 S.E.2d 901, 903, Denny, J., speaking for the Court, said: "In the exercise of this delegated power, it is the duty of the municipal authorities in their sound discretion, to determine what ordinances or regulations are reasonably necessary for the protection of the public or the better government of the town; and when * * * such * * * ordinance is adopted, it is presumed to be valid; and, the courts will not declare it invalid unless it is clearly shown to be so." Motley v. State Board of Barber Examiners, 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253; Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930; Chimney Rock Co. v. Town of Lake Lure, 200 N.C. 171, 156 S.E. 542. This is true when the constitutionality of an ordinance is attacked, and no law or ordinance will be declared unconstitutional unless clearly so and every reasonable intendment will be made to sustain it. Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781; Jewel Tea Company v. City of Troy, 7 Cir., 80 F.2d 366.

It is well settled that, although the obligations of contract must yield to a proper exercise of the police power and vested rights cannot inhibit proper exertion *577 of the power, it must be exercised for an end which is in fact public, and the means adopted must be reasonably adapted to the accomplishment of that end and must not be arbitrary and oppressive. Treigle v. Acme Homestead Association, 297 U.S. 189, 56 S. Ct. 408, 80 L. Ed. 575, 101 A.L.R. 1284; State v. Finney, 65 Idaho 630, 150 P.2d 130, 132; State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658.

As was stated by Barnhill, J., speaking for the Court in Suddreth v. Charlotte, supra, quoting 37 Am.Jur., 535, "No person has an absolute right to use the streets of a municipality in the operation of powerdriven vehicles for hire. Such operation is a privilege which the municipality, under proper legislative authority may grant or withhold." [223 N.C. 630, 27 S.E.2d 652.] Commonwealth v. Rice, 261 Mass. 340, 158 N.E. 797, 55 A.L.R. 1128; Bunn v. City of Atlanta, 67 Ga.App. 147, 19 S.E.2d 553; State v. Carter, 205 N.C. 761, 172 S.E. 415; Vol. 1 Blashfield Cyc. Auto. Law & Practice, Perm.Ed., § 32, p. 67, 7 McQuillin, Municipal Corporations, Sec. 24.661, and cases cited thereunder.

"The fundamental rule that a municipal corporation cannot surrender in any part or in any respect the police power delegated to it by the State is applicable to the regulation of taxicabs. It follows that the grant of a franchise to a taxicab does not and cannot, despite any terms of the franchise, diminish in any respect in the least, the police power of the municipal corporation to regulate the taxicabs or the particular company enjoying such franchise." 7 McQuillin, Municipal Corporations, Sec. 24.662; Northern Pac. Ry. Co. v. State of Minnesota ex rel. City of Duluth, 208 U.S. 583, 28 S. Ct. 341, 52 L. Ed. 630; Carolina & N. W. Ry. Co. v. Town of Lincolton, 4 Cir., 33 F.2d 719.

The municipality now seeks by ordinance to restrict the operation of taxicabs to the holders of franchises. It is not logical to assume that a franchise holder is operating a taxicab when such vehicle is rented to an independent contractor. The lessor is engaged in the business of renting vehicles to be operated as taxicabs by others who, not being franchise holders, are not extended the privilege of operation, even though they are duly licensed and qualified drivers of taxicabs; "operation" being used here to denote the business engaged in and not the manual operation of a vehicle. The corporate plaintiffs are in effect "farming out" their franchises. The ordinances does not interfere with the right of a duly licensed and qualified driver to be employed as such. It simply requires the proper exercise of the franchise by those to whom the privilege has been extended.

By whatever designation given, be it franchise, certificate of public convenience and necessity, permit or license, the privilege of operating vehicles for hire on the streets of a municipality is not a common, fundamental or natural right, and must give way to reasonable regulation bottomed on a bona fide promotion of the public safety, security and welfare.

In this instance the power to create carries with it the power to control. The constitutionality of the legislative delegation to the municipality to grant and regulate motor vehicles franchises carries with it ex vi terminis the power to apply such measures and means of regulation as are reasonably necessary to the public interest to secure the result. Suddreth v. City of Charlotte, supra; Reo Bus Lines Co. v. Southern Bus Line Co., 209 Ky. 40, 272 S.W. 18.

The municipality may name such terms and conditions as it sees fit to impose for the privilege of transacting such business, and the courts cannot hold such terms unreasonable, except for discrimination between persons in a like situation. The wisdom and expediency of the regulation rests alone with the lawmaking power. Lawrence v. Nissen, 173 N.C. 359, 91 S.E. 1036; Turner v. Newbern, 187 N.C. 541, 122 S.E. 469; Suddreth v. Charlotte, supra.

Applying these principles to the case in hand the Court is of the opinion, and so holds, that the judgment of the Superior Court should be affirmed. It is so ordered

Affirmed.