In Cloe v. State ex rel. Hale, 209 Ala. 544, 96 So. 704, the pertinent provisions of ordinance 759-C, regulating the granting of such license, was set out. That was a mandamus proceeding to require the commissioner of public safety to issue a license to a jitney bus to operate on a special route.Summary of this case from Birmingham Interurban Taxicab Service Corp. v. McLendon
6 Div. 917.
May 31, 1923.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
W. J. Wynn and W. A. Jenkins, both of Birmingham, for appellant.
The writ of mandamus will not be awarded to compel an officer to do that which he has not the legal power to do. Minchenor v. Carroll, 135 Ala. 409, 33 So. 168; Gray v. Lindsey (Ala.) 39 So. 927; Ex parte Shaudies, 66 Ala. 134; Armstrong v. O'Neal, 176 Ala. 611, 58 So. 268; Farson v. Bird, 197 Ala. 384, 72 So. 550. Nor will the writ ever be awarded where full and adequate relief can be had by appeal or otherwise. State ex rel. Pinney v. Williams, 69 Ala. 311; Ex parte South. North Railroad Co., 65 Ala. 599; Farson v. Bird, supra. Mandamus does not lie to compel an officer having discretionary power to exercise that power in any particular way. Henry v. State, 200 Ala. 475, 76 So. 417; State ex rel. Bibb v. Town of Warrior, 181 Ala. 642, 62 So. 69; State ex rel. Ducourneau v. Langan, 149 Ala. 647, 43 So. 187.
Weatherly, Birch Hickman, of Birmingham, for appellee.
The rules of law applicable to dangerous instrumentalities do not apply to automobiles, nor can they be so arbitrarily regulated as to drive them from the highways. 28 Cyc. 24. The right of mandamus applies to cases where the act or duty is being performed or not performed, either arbitrarily or unreasonably, or fraudulently or unjustly, without legal excuse or requirement. Shrack v. Coatesville, 6 Pa. Dist. R. 425; Ex parte Scudder, 120 Ala. 436, 25 So. 44; Phœnix Carpet Co. v. State, 118 Ala. 154, 22 So. 627, 72 Am. St. Rep. 143; 5 McQuillin, § 2465; 3 McQuillin, § 1005; 28 Cyc. 747; Ann. Cas. 1918A, 688; Hughes v. Outlaw, 197 Ala. 452, 73 So. 16, Ann. Cas. 1918C, 872; 187 Iowa, 555, 174 N.W. 334, 6 A.L.R. 1526.
"Where the application is for mandamus, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondent to perform the act required." Armstrong v. O'Neal, Gov., 176 Ala. 611, 615, 58 So. 268, 270; Minchener v. Carroll, 135 Ala. 409, 33 So. 168.
The petition here exhibited is fatally defective as to both of these requirements.
1. The petitioner has no natural or inherent right to operate motor vehicles, as common carriers of passengers, on the streets of Birmingham. City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117; Const. 1901, § 220. The city ordinance which regulates that service gives to every citizen the right to apply for a license, and to have his application brought before the city commission, and passed upon by that body. But it seems perfectly clear that the granting of the license is a matter of discretion under the regulatory ordinance; certainly so as to the number of vehicles that the needs of the public require, or the character of the streets and the convenience and safety of traffic may permit. The ordinance forbids the licensing of more than 30 vehicles on the particular route here concerned, but it does not by any means declare that 30 vehicles shall be licensed. It may be that the 25 vehicles already licensed for this service, and in use on this route, are more than are needed; and it may be, also, that the interest of the public will be better served by a distribution of the licenses in smaller proportions than three to each operator. Such conclusions are, we think, left to the sound discretion of the commission, to say nothing of the individual merits of each application, upon which the commission must pass its judgment.
2. Under the ordinance referred to, the commissioner of public safety is without legal authority to pass upon the merits of an application for license. That authority is vested in the city commission as a whole. Nor has the commissioner any authority to grant or issue or cause to be issued such a license. That authority, also, is vested exclusively in the commission.
The reply filed by petitioner to respondent's answer was no part of the petition, and could not supply its deficiencies. But, in any case, neither the assumption of unwarranted powers by the commissioner of public safety, nor the acquiescence of the city government therein, could operate as a repeal or suspension of the regulatory ordinance, which must be given the effect of law until it is duly repealed or amended.
The showings of the petition could not support the relief prayed for and granted, and the trial court erred in not sustaining the demurrer to the petition.
It may be observed, in view of the general prayer of the petition, that, if the petitioner wishes to apply for a license, as provided by the ordinance, and cannot procure an application form from the city, he may draft one for himself, and file it with the commissioner; and, if the commissioner fails to report his findings thereon to the commission, as he is required to do, a writ of mandamus may be the appropriate remedy to compel him to make his findings and to so report them. But no other relief is available against this respondent, because no other duties rest upon him.
For the error stated, the judgment of the circuit court will be reversed, and the cause will be remanded for further proceedings.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.