Leary Goodbody (Edgar T. Brackett, Edward W. Hatch, Samuel F. Moran, Arthur K. Wing, Henry Bennet Leary, William I. Goodbody, of counsel), for plaintiff Yellow Taxicab Company.
Dixon Holmes, for plaintiff Hotel Astor.
Wing Wing, for plaintiff Universal Taximeter Cab Company.
Baldwin Hutchins, for plaintiff Hilliard Hotel Company.
Harvey T. Andrews, for plaintiffs Motor Taximeter Cab Company and the Forty-seventh Street Taxicab Company.
Campbell Boland, for plaintiff Hotel Woodward Company.
Green Barry, for plaintiff Garden Taxicab Company.
Baldwin Hutchins, for plaintiff Waldorf-Astoria Hotel Company.
Corbitt Stern, for plaintiffs Hawk Wetherbee and Mason-Seaman Transportation Company.
John W. Browne, for plaintiff Haverty's Taxicabs, Inc.
Stephen Barker, for plaintiff Jennie K. Stafford.
Hatch Sheehan, for plaintiff Greeley Square Hotel Company.
George C. Norton, for plaintiff The New Taxicab and Auto Company.
Atkins B. Cunningham, for Riverside Taxi Service Co. In support of the motion.
Archibald R. Watson, corporation counsel (Terence Farley and George P. Nicholson, of counsel), for defendants. Opposed to the motion.
Sixteen motions in as many cases were argued and submitted to the court for decision at the same time. The object of the plaintiffs in all of these motions is to secure an injunction pendente lite in actions brought to restrain the defendants from attempting to enforce a certain ordinance passed by the board of aldermen of the city of New York, known as the public hack ordinance. The ordinance was approved by the mayor of the city on June 2, 1913, and by its terms was to become operative on August 1, 1913. The motion in each case is based upon the contention that the ordinance is unconstitutional, beyond the power of the board of aldermen, discriminatory, unjust and unreasonable and therefore void.
The plaintiffs in these cases are of two classes: First, certain taxicab owners engaged in transporting persons for hire, and second, certain persons engaged in the operation of hotels in front of which the defendants, acting pursuant to the ordinance referred to, have assumed to establish public hack stands. While these two classes of persons claim to be affected in a different manner by the enforcement of the ordinance, all of the plaintiffs assert the invalidity of the ordinance upon the same grounds. The court will determine all of the motions and discuss the grounds urged in support of each in a single opinion.
The plaintiffs engaged in the operation of taxicabs have paid to the city a license fee of ten dollars for each cab employed in its business, and for each stand an amount equal to as many times twenty-five dollars as cabs are allowed on such stand. Some of the licenses issued to these plaintiffs expire by their terms on August 1, 1913, and others according to their terms continue beyond this date. Each license states that in consideration of twenty-five dollars the person named "is hereby licensed to keep and use a special hack stand in the city of New York at" a designated place, and provides that "this license is subject to the strict observance of all laws, ordinances and regulations enacted for the protection of the city so far as they may apply, is to continue in force for a period of one year, beginning * * * and ending * * *, unless sooner suspended or revoked, and is not transferable." Section 307 of the ordinances in effect up to and including July 31, 1913, provides as follows: "All licenses shall be granted by authority of the mayor and issued by the bureau of licenses for a term of one year from the date thereof, unless sooner suspended or revoked by the mayor, and no person shall be licensed except a citizen of the United States or one who has regularly declared intention to become a citizen. The mayor shall have power to suspend or revoke any license or permit issued under the provisions of this ordinance."
Those of the plaintiffs who are proprietors or lessees of hotels and are engaged in the business of operating the same assert that they have under contracts with cab companies been enabled to afford to their patrons and guests a taxicab service which has been satisfactory and responsible and that the mayor, pursuant to the ordinance, has located a public hack stand alongside of the curb of the street upon which their hotels front; and that the new ordinance which is now under review does not provide as a condition precedent to the designation of a public hack stand in front of such hotels that the consent of the occupant, owner or lessee must be obtained. These plaintiffs have not given their consent to the designation of public hack stands in front of their respective premises.
The ordinance, the validity of which is assailed in these actions, purports to abolish all public hack stands heretofore designated and all special hack stands. It authorizes the mayor to locate and designate as public hack stands the space alongside the curb adjacent to property used as public parks, public buildings, railroad stations, steamship and ferry landings, hotels, restaurants, theatres and the centre of any street or avenue where the roadway exclusive of the sidewalk is thirty feet in width or more. Art. V, subds. 1, 2, 3. The ordinance gives to the mayor the power to designate the number of public hacks which shall be allowed at the places designated (Art. V, subd. 4), and prescribes the maximum rates of fare for public hacks. Art. VI. The maximum rate of fare for motor vehicles is made to depend on the number of passengers carried and the distance traveled. Art. VI. The ordinance provides that every public hack propelled by mechanical power and seating four persons or less must have a taximeter. Art. III, subd. II. The ordinance also prescribes the qualifications of drivers of public hacks, and makes provisions for the examination of applicants for a driver's license. Art. IV. It also provides for the inspection of the vehicles to ascertain whether their character and condition conform to the requirements of the ordinance. Art. III. The ordinance provides penalties for the violation of any of its provisions.
On the same day that the ordinance was adopted the board of aldermen passed a separate act repealing sections of a former code of ordinances under which all previous hack licenses had been granted. This repealing ordinance was approved by the mayor on the same day that he approved the public hack ordinance, and both ordinances by their terms were to become operative at the same time.
In determining the questions presented the court must keep in mind the well settled principle of law that the fact that there may be void provisions of a statute or ordinance furnishes no reason for declaring the whole statute or ordinance void. Some of the provisions of the ordinance attacked upon these motions may be open to question. Thus, those provisions of the ordinance which provide for the disposition to be made of lost property found in cabs, and the powers conferred upon certain police officials to hear and determine as to violations of the ordinance, contain provisions which are easily severable from the main provisions of the ordinance. The validity of these provisions is in no way involved in these actions, and the court should not go out of its way to anticipate controversies which may not arise. If any such controversies do arise in the administration of the ordinance, the persons who claim that their rights have been invaded will have access to adequate legal remedies. Upon these motions, therefore, the court is to consider only those objections to the ordinance which the plaintiffs claim threaten them with injuries against which they would be remediless if injunctive relief is denied. The claims of the plaintiffs which it is necessary for the court to pass upon are those which rest upon the contention that the ordinance is violative of the Constitution of the state and of the provisions of the Fifth and Fourteenth Amendments to the Constitution of the United States; that the board of aldermen was without legal power to enact it; that it violates the rights of owners or lessees whose property abuts the curb in front of which public hack stands are attempted to be established without the consent of such owners or lessees, and that it is discriminatory and unjust and unreasonable. These objections we shall consider in the order named.
The claim that the ordinance violates the provisions of the State Constitution (Art. I, § 6) and the provisions of the Constitution of the United States expressed in the Fifth and Fourteenth Amendments is necessarily based upon the assumption that those of the plaintiffs who are engaged in the transportation of passengers for hire have already by contract with the city of New York acquired certain property rights which can not be impaired by the repeal of the ordinances under which permits were granted to them to occupy special hack stands heretofore designated. It becomes necessary, therefore, at the outset to ascertain what rights, if any, this class of plaintiffs has to occupy such private or special hack stands. The permits to them were granted under the provisions of an ordinance which prohibited other licensed hackmen from going upon or using a special or private hack stand. Code of Ordinances, §§ 317, 318. The effect of those provisions of the old ordinance and the licenses granted pursuant thereto gave to hotels and other owners of buildings abutting on the public streets the right to maintain private hack stands. These special privileges in the streets of the city enabled those in front of whose property special hack stands were established to sell for their private profit the right to use a part of the public streets. Licenses issued pursuant to such ordinances discriminated against the right of other public hackmen than those who made contracts with the abutting owners to enjoy equal rights in the public streets. It is in evidence before the court that an investigation made by a commissioner of accounts of the city of New York shows that over $360,000 is paid annually to the hotels and other abutting owners for the sale of these privileges, and the report of a commission appointed by the mayor to investigate the whole subject of cab service estimated the amount paid annually for such purposes as not less than $500,000.
Because of the discrimination which licenses issued under the old ordinance permitted against other hackmen than those who sustained contractual relations with the abutting owners its validity is not free from doubt. Pennsylvania Co. v. City of Chicago, 181 Ill. 289; Odell v. Bretney, 38 Misc. 603; 62 A.D. 595; 93 id. 607; Montona Union R. Co. v. Langlois, 8 L.R.A. 753, and authorities therein cited. Notwithstanding the reasons suggested by these decisions against the validity of the ordinance in question it has been upheld in the case of the City of New York v. Reesing, 38 Misc. 129; affd., 77 A.D. 417. This latter case is binding as an authority upon this court and compels it to indulge the assumption that the ordinance under which the licenses were granted to those of the plaintiffs engaged in the business of the transportation of passengers for hire was a valid ordinance while it remained unrepealed. This assumption necessitates an inquiry into the nature of the rights conferred under the licenses granted pursuant to those provisions of the old code of ordinances referred to. It has been pointed out above that the ordinance under which licenses were formerly issued and the licenses in terms provided that such licenses should be revocable by the mayor. The licenses were not contracts with the city of New York. They conferred no right of property in the street. They were mere permits granting privileges to render public service. The right to revoke such a license is the correlative of the right to grant it. 25 Cyc. 625.
The authorities are uniform that such licenses are not contracts and create no property right and are always revocable. Calder v. Kurby, 71 Mass. 597; People v. Roper, 35 N.Y. 629, 635; Laing v. Mayor Council of Americus, 86 Ga. 756; Sullivan v. Borden, 163 Mass. 470; St. Charles v. Hackman, 133 Mo. 634; Newson v. City of Galveston, 76 Tex. 559; Child v. Bemus, 17 R.I. 230, 231; Sights v. Yarnalls, 12 Grat. (Va.) 292; Hutchins v. Town of Durham, 118 N.C. 457, 469; Wiggins v. City of Chicago, 68 Ill. 372; Schwuchow v. City of Chicago, 68 id. 444. A license by its terms revocable, granted pursuant to an ordinance which is repealed, falls with the ordinance which furnished the only authority for granting it. Such revocable municipal licenses may be revoked indirectly as well as directly. Laing v. Mayor Council of Americus, 86 Ga. 756; People ex rel Westervelt v. Meyer, 5 N.Y.S. 69. From these authorities it is clear that the licenses heretofore granted were revoked by the repeal of the ordinance pursuant to which they were granted. The argument of the plaintiffs that the ordinance violates its property rights contrary to the constitutional provisions referred to is based entirely upon a fallacy. These permits, instead of being contracts, as claimed by the plaintiffs, are mere licenses revocable by the power which granted them, and, in fact, by the repeal of the ordinance pursuant to which they were issued have been revoked. These plaintiffs, therefore, have no greater rights than if no permits had ever been issued to them. They have no property rights in the city's streets which have been impaired by the ordinance, and no property which the ordinance confiscates or attempts to take away. There is no merit in the claim that they have rights by virtue of contracts which they have made with the owners or lessees of property abutting upon the curb in front of which special hack stands were formerly established. Whatever the rights of such abutting owners may be, it is clear that they cannot by their private contracts with hackmen confer any right upon them which is inconsistent with the right of the local authorities to regulate the business of hackmen and prescribe reasonable regulations as to the use of the streets. Moreover, it follows from the conclusion announced that the claim of the plaintiffs that the rates of fare prescribed by the ordinance are confiscatory is without merit and not to be considered, except in so far as the reasonableness of the rates prescribed is to be taken into account in determining the general question as to whether the ordinance is itself unreasonable and unjust. This aspect of the plaintiffs' contention we shall subsequently consider. The assumption of the plaintiffs that public hackmen are in the same class as those engaged in private business is without foundation and is contrary to fundamental principles embodied in the common law and in our present constitutional provisions. From time immemorial it has been held that the business of a public hackman is affected with a public interest and falls within the principle of the common law which was long ago asserted by Lord Chief Justice Hale in his treatise De Portibus Maris. Harg. Law Tracts, 78. The underlying principle there asserted was that businesses of certain kinds sustain such a peculiar relation to the public interests that there is superinduced upon them the right of public regulation. This principle is firmly fixed in our modern constitutional law. People v. Budd, 117 N.Y. 1, affd., Budd v. New York, 143 U.S. 517; Munn v. Illinois, 94 id. 113. As was well said by Chief Justice Waite in Munn v. Illinois, supra, in the exercise by government of the power of regulation, "it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, inkeepers, c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold." It has repeatedly been asserted that such persons stood "in the very gateway of commerce and took a toll from all who passed," and that their business tended "to a common charge" and had become a thing of public interest and use, and for that reason ought to be subjected to governmental regulation so that they shall be enabled to "take but reasonable toll." The question as to what is a "reasonable toll" is a legislative rather than a judicial question. These views are so abundantly fortified by the opinion of the court in Budd v. New York, 143 U.S. 517, and the cases therein cited that amplification is unnecessary.
The plaintiffs contend that the board of aldermen were without power to enact the public hack ordinance and that the ordinance is void for that reason. This contention is without merit. The statutory authority of the board of aldermen to enact the ordinance is clearly set forth in the Greater New York Charter. Section 51 of that charter, as amended by chapter 262 of the Laws of 1910, provides as follows: "Subject to the constitution and laws of the state, the board of aldermen shall have power to provide for the licensing and otherwise regulating the business of * * * hackmen, cabmen. * * * The board of aldermen shall also have power to regulate the rates of fare to be taken by owners or drivers of hackney coaches, carriages, motors, automobiles or other vehicles, and to compel the owners thereof to pay annual license fees. All ordinances in relation to any of the matters mentioned in this section shall be general, shall provide for the enforcement thereof in the manner specified in section forty-four of this act as amended, and shall fix the license fee to be paid, if any. All licenses shall be according to an established form and shall be regularly numbered and duly registered as shall be prescribed by the board of aldermen." Section 44 of the charter provides that "No enumeration of powers in this act shall be held to limit the legislative power of the board of aldermen which, in addition to all enumerated powers, may exercise all of the powers vested in The City of New York by this act, or otherwise, by proper ordinances, rules, regulations and by-laws, not inconsistent with the provisions of this act, or with the constitution or laws of the United States or of this state; and, subject to such limitations, may from time to time ordain and pass all such ordinances, rules, regulations and by-laws applicable throughout the whole of said city or applicable only to specified portions thereof, as to the said board of aldermen may seem meet for the good rule and government of the city, and to carry out the purposes and provisions of this act or of other laws relating to the said city, and may provide for the enforcement of the same by such fines, penalties, forfeitures and imprisonment as may by ordinance or by law be prescribed."
The right of a municipality to establish public hack stands has been recognized and acted upon by the city of New York from early times, and is but an incident of the right to license and regulate those who ply the trade of hackmen for hire. The defendants have submitted upon these motions a record of municipal ordinances from 1817 to date, which demonstrate that the corporate authorities of the city have from such time exercised such power as a part of its police functions.
The fact that the ordinance provides that "the enforcement of the provisions of this ordinance shall be under the control of the bureau of licenses," does not justify the contention urged by the plaintiffs that the board of aldermen has delegated to such bureau "the question of whether the ordinance shall be enforced at all or not." There is nothing in the ordinance which justifies such an interpretation being placed upon its provisions. Manifestly the board of aldermen cannot itself attend to the work of licensing and inspecting vehicles and conduct the examination of applicants for drivers' licenses. The duties which the ordinance confers upon the bureau of licenses are purely administrative in character and not legislative. The board of aldermen exercised its legislative function in enacting the ordinance. No discretion is delegated to the bureau of licenses to determine whether or not the ordinance should become operative. That it should become operative followed as a matter of course from the fact that it was enacted by the board of aldermen and approved by the mayor, unless the ordinance is itself illegal. The claim that the chief of the mayor's bureau of licenses has in effect suspended the operation of some of the provisions of the ordinance is not a proper subject of consideration upon these motions. If the fact be as alleged, there are remedies open to the plaintiffs, but that fact would furnish no ground for declaring the ordinance itself void.
The claim that those of the plaintiffs engaged in the transportation of passengers for hire are subject to the exclusive jurisdiction of the public service commission in the first district by virtue of subdivision 9 of section 2 of chapter 480 of the Laws of 1910, as amended by chapter 344 of the Laws of 1913, and that therefore the board of aldermen is without power to enact the ordinance, is unsound and can only be sustained by a process of reasoning which assumes that the legislature in enacting chapter 344 of the Laws of 1913 intended to repeal those provisions of the charter which conferred upon the board of aldermen the right to regulate hackmen and the rates of fare to be charged by them. Such an interpretation not only does violence to that canon of statutory construction, which holds that repeal by implication is not favored, but finds no support in anything contained in the act of 1913 referred to above. The provision of that act, which provides that the jurisdiction of the public service commission in the first district "shall extend under this chapter * * * (D) to any common carrier other than a railroad corporation or street railroad corporation operating or doing business within that district, so far as concerns operation exclusively within that district," does not justify the inference that the legislature intended to repeal sections 51 and 44 of the Greater New York Charter, which confer in unequivocal terms the authority upon the city to enact ordinances regulating the business of hackmen. These charter provisions are but declaratory of powers which the city of New York has enjoyed during its corporate existence, and in the absence of a clear legislative intent it is not to be assumed that the legislature intended to repeal them.
The contention that section 51 of the charter has been repealed by chapter 374 of the Laws of 1910, amending section 288 of the Highway Law, is fallacious.
The amendment made to section 288, upon which the plaintiffs base their claim, so far as applicable to the question under consideration, provides as follows:
"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 to whom this article is applicable any tax, fee, license or permit for the use of the public highways, or excluding any such owner or chauffeur from the free use of such public highways, excepting such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages, or in any other way respecting motor vehicles or their speed upon or use of the public highways; and no ordinance, rule or regulation contrary to or in anywise inconsistent with the provisions of this article, now in force or hereafter enacted, shall have any effect; provided, however, that the power 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." That this law does not contemplate taking away from the local authorities the right to regulate the business of hackmen and cabmen appears not only from the language used and the absence of any express repeal of section 51 of the charter, but also from the exception contained in the law itself. The present ordinance falls within the terms of the exception, which provides "that the power given to local authorities to regulate vehicles offered to the public for hire * * * 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." To imply a repeal of section 51 of the charter from this language would be to act in defiance of the expressed intent of the legislature to the contrary. The amendment made to section 288 of the Highway Law was not intended as a substitute for those charter provisions which equip the city with authority to exercise its police power in reference to those trades and callings which have for many generations been deemed proper subjects for the exercise of such power. The fact that the provisions contained in section 288 of the Highway Law reserve the right "to regulate vehicles offered to the public for hire" and are there expressed in different phraseology from that employed in section 51 of the charter is a circumstance wholly insignificant. The phraseology employed is immaterial when the intent is clearly expressed, and an intention not to repeal section 51 of the charter affirmatively appears in the amendment to section 288 of the Highway Law.
The contention that the power to fix rates must be expressly given and cannot be inferred is inapt in view of the provision of section 51 of the charter that "the board of aldermen shall also have power to regulate the rate of fare to be taken by owners or drivers of hackney coaches, carriages, motors, automobiles or other vehicles." It is difficult to see how the legislature could have expressed more clearly a direct grant of power.
The objection that the board of aldermen is without power to regulate rates because a hackman might contract to carry a passenger from New York to Jersey City, and thus engage in interstate commerce, the power to regulate which rests solely in the congress of the United States, is without merit. The objection seems to me to be frivolous in view of the fact that the ordinance does not assume at all to regulate the rates for interstate commerce. The ordinance in question operates only within the limits of the city, and therefore cannot be held obnoxious as a regulation of interstate commerce. Budd v. New York, 143 U.S. 517, 545. The attempt to show that the ordinance is in excess of the power of the board of aldermen cannot survive an examination of the statutes and the application to them of any reasonable interpretation.
All of the plaintiffs in these actions urge that the provision of the ordinance permitting the establishment of a public hack stand in front of hotels without the consent of owners or lessees of such property is in violation of the right of such owners or lessees and renders the ordinance void. Those of the plaintiffs who are engaged in the business of transportation of passengers for hire claim the right to assert this objection because at the present time, by leave of the owners, they are enjoying the privileges of a private hack stand in front of such hotels. The other plaintiffs are the owners or lessees of hotels or other property abutting upon the streets in front of which the mayor has designated a place for a public hack stand. There is no doubt of the right of the city of New York to designate public hack stands upon the public streets. Such stands are not per se a nuisance. They do not interfere with the street for street purposes, but, on the contrary, facilitate the use of the street for such purposes. The right to establish such public hack stands existed under the ancient charters of the city of New York and has been confirmed by subsequent legislation. The opinion of Judge Jones in Masterson v. Short, 30 N.Y. Super. Ct. 241, and the opinion of Judge Barbour in the same case (Id. 299), although differing as to whether such stands may under the circumstances disclosed in that case create a nuisance, are agreed in asserting the right of the corporate authorities to license hackney coaches and to designate portions of the public streets as the standing places thereof. The object and reason for such regulation was well stated by Judge Jones in his opinion, where he said: "The system of hackney coaches standing at designated places in the streets of a city, grew out of the necessity of meeting the public demands. A demand arose in cities for means of transit, from point to point, other than by walking. As the city increased in extent of territory, and became more populous, the demand increased. This gave rise to a class of men, who procured one or more vehicles, according to their means, and plied the streets for hire. It was soon found necessary to place these men under special police regulations, and as one of those regulations, to assign certain places in the streets where they might stand waiting for customers. Such regulation was necessary for the control of the hackmen, and for the convenience of the public. Its object was to prevent the hackmen from traveling, with their empty vehicles, in search of custom in the streets otherwise sufficiently crowded, and also to prevent their stopping and remaining, for any considerable time, at inconvenient places; but the great object was to have hacks standing at various points where the public would be most likely to want them, and where they would cause the least inconvenience to other vehicles, or injury to the surrounding property."
If the municipal authorities have the right to establish public hack stands, as they undoubtedly have, it follows that they have the right to establish such stands at such places as the public welfare and convenience shall require. The designations pursuant to the ordinance (art. 5, § 3) of spaces alongside the curb adjacent to property used as public parks, public buildings, railroad stations, steamships and ferry landings, hotels, restaurants and theatres, are obviously conducive to the public convenience. Such a designation is not, therefore, in itself either invalid or unreasonable. That such a designation must be made with due regard to the rights of abutting owners is clear, but if such designation does not impair the rights of such owners there can be no legal objection urged against it. It is settled law that a court of equity will withhold injunctive relief where there is no substantial injury to the easements of light, air and access to the premises of an abutting owner. Adler v. Metropolitan E.R. Co., 138 N.Y. 173, 180. The statement of the plaintiffs that the designation of such public hack stands in front of the property of an abutting owner or occupier without the latter's consent is a nuisance and illegal is too broad a statement of the rule of law applicable to this subject to be accurate. The rights of an abutting owner are not paramount to the rights of others of the general public to use the streets for legitimate street purposes. Donovan v. Pennsylvania Company, 199 U.S. 279, 303. The abutting owner has rights special and peculiar to himself which arise out of the relation of his property to the public street. His right of way and his right to the free and unimpeded ingress and egress to and from his property and to the easements appurtenant thereto are clearly recognized by controlling legal authorities. 2 Dillon Mun. Corp. (5th ed.) §§ 1016, 1125, and cases cited; 28 Cyc. 856. A legislative act or municipal ordinance which substantially interferes with this right violates the property right of the abutting owner, whether the fee of the street is owned by the abutting owner or the public. Donovan v. Pennsylvania Co., supra, 199 U.S. 279, 302; Story v. New York El. R.R. Co., 90 N.Y. 122. The rights of the abutting owner are of course subject to such valid regulations as the local authorities may prescribe for the public convenience, but such regulations in order to be valid must recognize the rights of the abutting owner of ingress to and egress from his property. In Donovan v. Pennsylvania Co., supra, Mr. Justice Harlan said: "Generally speaking, public sidewalks and streets are for use by all, upon equal terms, for any purpose consistent with the object for which such sidewalks and streets are established; subject of course to such valid regulations as may be prescribed by the constituted authorities for the public convenience; this, to the end that, as far as possible, the rights of all may be conserved without undue discrimination." If the ordinance now under review, in authorizing the establishment of public hack stands alongside of the curb in front of the plaintiffs' hotels, does not impair the free and unimpeded right of ingress and egress to and from the property of the plaintiffs, the regulation is valid and violates no right of any abutting owner. The framers of the ordinance seem to have had these principles well in mind and to have endeavored to make the establishment of a public hack stand consistent with a recognition of the special and peculiar rights of abutting owners. Thus in section 7, article 5, of the ordinances, it is provided that "no public hack shall stand at any hack stand located and designated by the mayor in accordance with section 3 of this article, adjacent to the curb of the sidewalk, within fifteen feet of the entrance to any building erected on the property adjacent to the said hack stand. The said fifteen feet shall be determined by measuring fifteen feet on each side of a point on the curb opposite the middle of the entrance to the adjacent building. No hack shall stand within five feet of any crosswalk." The ordinance under review therefore specifically sets aside thirty feet in front of the property of the abutting owner for the special uses of such owners and permits no public hack stand to be designated within this space. It is not claimed that the municipal authorities have designated any stand in violation of this provision. The amount of space necessary to secure to the abutting owner the free and unimpeded right of ingress and egress to and from his property must always rest within reasonable limits within the discretion of the municipal authorities. Unless the ordinance and the acts of the defendants done or threatened pursuant thereto clearly show such an abuse of discretion as leaves no doubt that the rights of the abutting owner have been violated, there is neither reason nor excuse for judicial interference. It is not claimed that the agents of the defendants will not observe the requirements of the ordinance in this respect, and if they should disregard the limitations imposed by the ordinance, it is to be presumed that the local authorities will restrain them. The amount of space necessary to be kept free of the presence of public hacks in order to conserve the rights of the abutting owners or occupants is primarily to be determined by the board of aldermen and not by the courts. Bearing in mind the provisions of the ordinance which set aside thirty feet in front of the property of those of the plaintiffs who own or lease the hotels in front of which public hack stands have been designated, it is impossible for the court to determine that the establishment of such stands is per se a nuisance, or that the right of these plaintiffs to the free and unimpeded ingress and egress to and from their property is in any way impaired. Nor is there anything in the affidavits submitted upon these motions which tends to a contrary conclusion. That the rule here applied is in harmony with the weight of legal and judicial authority conclusively appears from an examination of the writings of learned commentators and judges. In Dillon on Municipal Corporations (5th ed., vol. 3, § 1167), the rule is thus stated: "Generally speaking, public sidewalks and streets are for use by all, upon equal terms, for any purpose consistent with the object for which such sidewalks and streets are established, subject, of course, to such general regulations as may be prescribed by the constituted authorities for the public convenience, to the end that, as far as possible, the rights of all may be conserved without undue discrimination. Licensed hackmen and cabmen, unless forbidden by valid local regulations, may, within reasonable limits, use a public sidewalk in prosecuting their calling, provided such use is not materially obstructive in its nature, that is, of such exclusive character as, in a substantial sense, to prevent others from also using it upon equal terms for legitimate purposes. By virtue of its power to regulate the use of streets and sidewalks, and to regulate hackmen, etc., the city council may provide for public hack stands in the city streets, and may prescribe the length of time that hackmen may stand thereat. But it is not within the power of the municipality to authorize the creation or maintenance of a hackstand of such a nature as to interfere with the ingress to and egress from abutting property; nor can the establishment of a hackstand by municipal ordinance be used as a justification for the acts of hackmen in congregating upon the sidewalk, in front of and adjacent to or about the abutting premises, so as to interfere with the ingress and egress of persons desiring to visit the same. Similarly, hotel keepers and other property owners may make such reasonable use of the street adjoining the hotel or property as is reasonably necessary for the purpose that enabled them to keep carriages for the use of their guests on call." In Elliott on Roads and Streets (3d ed., vol. 2, § 883) it is said: "Municipal corporations often enact ordinances setting apart certain places for coaches, hacks or express wagons to stand, and the validity of such ordinances does not seem often to have been questioned. If the easement of access is not interfered with it may be that the abutter could not, ordinarily, enjoin such a use of the street."
In City Council of Montgomery v. Parker, 114 Ala. 118, it was held that a municipal ordinance providing that a portion of a street in front of a designated hotel shall be "established as a stand for two hacks" was within the power of the municipality, not unreasonable, and that the penalties prescribed for a violation thereof were enforceable. The opinion of the court makes it clear that provided such stand does not obstruct the property and guests of a hotel which abuts such street in their reasonable ingress to and egress from the hotel and in the transportation of baggage, no ground for injunctive relief is presented.
In Veneman v. Jones, 118 Ind. 41, the court said: "There can be no question but that the ordinance authorizing the depot marshal to prescribe the places where omnibuses, hacks and other vehicles should stand at the railroad depot, and requiring drivers to obey the directions of police officers in regard to the places which their respective vehicles should occupy, was a proper regulation and one which the municipal authorities had the power to pass. City of St. Paul v. Smith, 27 Minn. 364; Commonwealth v. Robertson, 5 Cush. 438; Commonwealth v. Stodder, 2 id. 562. Such regulations tend to the convenience of the general public by protecting persons from the annoying solicitations of hackmen and others, who when acting without restraint often confuse travelers, besides engendering strife and contention among themselves."
In Pennsylvania Co. v. City of Chicago, 181 Ill. 289, it was held that railroad depots in cities are in the nature of public buildings, and the city council may establish hack stands in front of them so long as access to and egress from the building are not prejudicially interfered with. In Donovan v. Pennsylvania Co., 199 U.S. 279, 303, Mr. Justice Harlan says: "By the Illinois statutes it is provided that the city council in cities may regulate the use of streets and sidewalks, and license, tax and regulate hackmen, omnibus drivers, carters, cabmen, porters, expressmen and all others pursuing like occupations, and to prescribe their compensation. Hurd's Ill. Stat. 1901, pp. 285, 287. And by ordinance of the city council of Chicago it is provided that any licensed hackney coach, cab or other vehicles for the conveyance of passengers may stand, while waiting for employment, at the following places and for the period of time hereinafter provided: * * * Stand No. 4. The east side of Canal street, occupying one hundred and ten feet between Adams and Madison streets, as the superintendent of police shall direct. * * * Stand No. 6. At all railroad depots ten minutes previous to the arrival of all passenger trains' (Rev. Code of Chicago, sec. 498). The validity of this ordinance has been sustained by the Supreme Court of Illinois (Pennsylvania Co. v. Chicago, 181 Ill. 289)." After making this statement Mr. Justice Harlan adds the following significant sentence: "Perceiving nothing in the above provisions inconsistent with any right secured by the Constitution of the United States, we accept the decision of the State court as authoritative upon this point."
These authorities and the others referred to in them leave no doubt in the mind of the court that the ordinance in question in so far as it permits the establishment of public hack stands in front of the hotels of some of these plaintiffs is a police regulation which offends against no constitutional provision and does not impair the rights of easement which the owners abutting on the street possess.
The decision in McCaffrey v. Smith, 41 Hun, 117, upon which these plaintiffs place great reliance, does not seem to me to be contrary to the authorities cited, because in that case the stand in front of the plaintiff's premises "interferes somewhat with access to the hotel and premises of the plaintiff." Upon the facts before the court the actual decision in McCaffrey v. Smith, supra, may be sustained, although I think that the authorities cited above demonstrate that the rule declared in the opinion in that case is too broadly stated to be an accurate statement of the law governing this subject.
It is further contended by the plaintiffs in these actions that the ordinance is unreasonably discriminatory in its provisions, and that therefore it violates the provisions of section I of the Fourteenth Amendment of the Constitution of the United States, which prohibits any state from denying to any person within its jurisdiction the equal protection of the laws. The respects in which it is claimed that the ordinance is unreasonably discriminatory are: First. That it singles out and attempts to reach and affect only those engaged in transportation of individuals for hire who solicit business upon the streets and not at all other persons so engaged in transporting individuals for hire. Second. That it requires taximeters on motor-driven vehicles designed to carry not more than four persons, and makes no such requirement as to horse-driven vehicles or motor-driven vehicles of a greater carrying capacity than four persons. Third. That it fixes lower rates of fare for motor-driven vehicles than for horse-drawn vehicles for the same distance. Fourth. That it requires a fixed payment — five dollars license fee for a cab and ten dollars license fee for coaches and a ten-dollar license fee for sight-seeing cars or those that carry more than seven persons. In so far as the first objection is concerned, it is a natural and just classification between those who solicit business upon the public streets and other persons who are engaged in the transportation of passengers for hire. The hackman who ply the streets for hire are because of that fact engaged in a public employment which naturally and necessarily differentiates their position from that of private livery men. In Professor Wyman's work on Public Service Corporations (Vol. I, § 107), it is said: "The hackmen who ply for hire have always been regarded as in the employment of the public. Theirs is really one of the most striking cases of temporary monopoly. In the case of any hackman his rival may be around the corner prepared to make a fair price; and yet as the traveler cannot bide his time he will often submit to an extortionate price rather than let a moment pass. For the time being the monopoly is effective; and, therefore, the necessity of regulating the business of hackmen upon the principles of public service law has long been apparent."
The classification which the ordinance makes between those operating motor-driven vehicles and horse-drawn vehicles and which is objected to in the second objection, set forth above, is one which has repeatedly had the sanction of the courts. People v. McWilliams, 91 A.D. 176; Christy v. Elliott, 216 Ill. 31; State v. Swagerty, 203 Mo. 517. The purpose of a taximeter is to enable the occupant of the cab to determine the distance traveled and the rates of fare therefor. It is a matter of common knowledge that the distance traveled is more easily ascertainable in the case of horse-drawn than in the case of motor-driven vehicles.
The fact that motor-driven vehicles designed to carry not more than four persons are required to have taximeters, while the same requirement is not made as to motor-driven vehicles of greater carrying capacity, cannot be said to be unreasonably discriminatory. The smaller cabs designed to carry a few persons are more generally engaged in transient business, while touring cars and sight-seeing vehicles designed to carry a larger number of persons are more generally employed to travel a fixed route between known points or are employed for a definite time at an agreed rate. In determining whether or not a provision of an ordinance is discriminatory, it is always to be borne in mind that regulations which are designed to promote public convenience are not to be condemned, and whether or not such regulations are adapted to this end rests largely within the discretion of the governing body of the city. City of Buffalo v. New York, L.E. W.R.R. Co., 152 N.Y. 276, 281.
The objection that the ordinance fixes lower rates of fare for motor-driven vehicles than for horse-drawn vehicles, the court cannot determine from the proof presented to be unreasonably discriminatory It may be that there are those among the public who prefer the horse-drawn to the motor-driven vehicle and that if a lower rate than that prescribed for motor-driven vehicles were adopted the horse-driven vehicle would cease to exist. If this be so, then the difference in rate would be justified, not on the ground that it gives the owner of the horse-driven vehicles an advantage over his better equipped competitor, but on the ground that it was essential in order to have horse-driven hacks operated at all, and thus make it possible to satisfy the demand of those who may prefer horse-drawn to motor-driven vehicles. Those engaged in operating horse-drawn vehicles are engaged in a different kind of public service from those engaged in operating motor-driven vehicles. The character of service being different, the provisions of the ordinance which place them in a different class are not on that account unreasonably discriminatory. The fourth objection urged relates to what is obviously a mere classification between vehicles of different character and in no way discriminates against any person.
There is not, therefore, anything in the provisions objected to that denies to any person or class of persons the equal protection of the laws. The distinctions made in the ordinance are not made arbitrarily, but are, generally speaking, a classification made with due regard to the acts sought to be regulated and bear a natural and reasonable relation to the objects classified. Such being the case it follows that the ordinance is not unreasonably discriminatory.
Finally, it remains only to consider the contention of the plaintiffs that the ordinance is unreasonable and unjust, and therefore void. The plaintiffs claim that it is unjust and unreasonable in the following respects:
First. It requires expensive meters. Second. It imposes unreasonable penalties for incorrect meters. Third. The requirements exacted of an applicant for a driver's license are unreasonable. Fourth. That the provisions for the suspension and revocation of a driver's license are unreasonable. Fifth. That the requirement that no person shall solicit passengers for a public hack or hacks upon the streets or highways of the city, except the driver of a public hack when sitting upon the box of his vehicle is unreasonable. Sixth. The prohibition against any one riding on the seat with the driver is unreasonable. Seventh. That the rates prescribed are so low as to make it impossible to operate motor vehicles at a profit, and that therefore the ordinance is unreasonable.
1. The requirement that meters shall be used has been shown by experience to be essential in order to check the frauds which might easily be perpetrated upon passengers. The commissioner of accounts of the city of New York and the commission appointed by the mayor of the city to investigate this whole subject of taxicab regulation have both reported that such frauds have been commonly committed. The requirement that meters shall be used is not only necessary if the frauds heretofore practiced are to be prevented, but is obviously so just and reasonable a regulation as not to justify further discussion.
2. If the requirement that meters shall be used is reasonable it follows as a corollary that the ordinance may impose penalties for the failure to comply with this requirement. The requirement of the ordinance is that correct meters shall be used. Meters of any other character would only serve to facilitate the perpetration of fraud. The penalties prescribed for a violation of the ordinance are reasonable and are such as have been commonly prescribed in similar cases by other municipalities.
3. The requirement that an applicant for a driver's license shall present a sworn testimonial as to his character by two reputable citizens and a further testimonial from his last employer, unless a sufficient reason is given for its omission, is a reasonable and wise requirement designed to afford protection to those who in using such vehicles are obliged to commit the safety of their persons and property to the care of such persons. In the opinion of the board of aldermen, this requirement was deemed essential to securing competent and reliable men to operate such vehicles. The plaintiffs object to the ordinance on the ground that the abolition of private hack stands deprives them of the opportunity to protect their patrons, because they will no longer have any control or authority over those operating motor vehicles. This objection would not be without force if it were not for the requirement that the bureau of licenses should exercise care in the selection of such drivers and retain a measure of control over them after their appointment. Notwithstanding the fact that this provision is well calculated to protect the patrons and the guests of the plaintiffs and others, it is objected to by the plaintiffs on the ground that it will prohibit "many thoroughly competent and reliable men from pursuing this calling." In a careful report submitted to the mayor by the commission appointed to investigate the subject of the regulation and control of public hacks and hack stands the commission in suggesting a proposed ordinance which has since been enacted into law and which is the ordinance now under review say: "Proprietors of some of the large hotels object to the elimination of private stands, insisting that if this be done they cannot insure to their guests the safe and efficient service they have now. They fear that unaccompanied women using public hacks will not be so well protected and that lost articles will not be so well handled. Their objections would be well founded if it were proposed merely to abolish the private stands without providing for much more thorough regulation than we have at present. We fully appreciate the fact that if the private stands be abolished the city must assume a much heavier burden of regulation, inspection and oversight of the general hack service than is imposed upon it at present. In other words, it will be necessary that the city administration shall so control and regulate public hackmen that the proposed public hack service shall be at least equal in efficiency to the present private service. Such control is essential to the success of the change we recommend. It is therefore necessary, in considering the proposed ordinance which we submit, to read it at all times in connection with our views herein set forth."
4. The provision of the ordinance giving to the mayor the power to suspend or revoke a driver's license is only a reasonable method of securing such continued control over such drivers as is essential to the protection of those using such vehicles.
5. The requirement that no person shall solicit passengers for a public hack upon the streets except the driver when sitting upon the box of his vehicle is obviously designed to prevent the annoyance of those near such hack stands and to prevent the drivers of such hacks from congregating upon the sidewalk in front of hotels and other public buildings, and by their solicitations obstructing traffic and making a nuisance of themselves to the patrons and guests of such hotels and to others going to and from such public buildings.
This requirement is in all respects reasonable and just, and is well adapted to secure the accomplishment of the purpose which the framers of the ordinance had in mind.
6. The prohibition against allowing any one to ride on the seat with the driver is a reasonable police regulation and will tend to promote the safety of those using such hacks. The argument that this provision confiscates physically a fractional part of the usable value of the cab loses sight of the reason which impelled the adoption of the provision. The reasons leading to the adoption of this prohibition are well set forth in the report made to the mayor by the commissioner of accounts in January, 1912, which has already been referred to. In that report it is said: "Finally we would suggest that no license be granted by the bureau of licenses to any cab or taxicab which is constructed with a seat beside the driver. The reason for this provision is obvious. Police records in all cities give evidence of robberies and assaults committed by hackmen with the assistance of companions. Section 324 of the ordinances provides that `no licensed hackman shall carry any other person than the person first employing the hack without the consent of such passenger.' This section, however, is inadequate. There would appear to be no violation of the provision unless the passenger actually protests. At any rate, the passenger's acquiescence is quite sufficient. Most travelers in New York would, if requested by the driver, readily consent to his carrying an additional passenger so long as the latter was not to occupy a seat inside the vehicle. In a lonely spot the passenger inside would be quite helpless against two men. This practice, which is not uncommon, may be reduced to a minimum, we believe, by climinating the possibility of any person sitting beside the driver of a cab or taxicab."
I have thus set forth at length the reasons which impelled the adoption of this provision, because a mere statement of them shows that the requirement was adopted not arbitrarily, but as a necessary police regulation to secure the safety of passengers.
7. The contention that the rates prescribed are so low as to make it impossible to operate motor vehicles at a profit and are therefore unjust and unreasonable is urged in the briefs of the counsel for the plaintiff, under the contention that the rates prescribed are confiscatory. It has already been pointed out that this contention is founded upon a false assumption that those operating hacks under the former ordinances did so under a contract with the city and without regard to the fundamental distinction asserted at common law and recognized in our constitutional provisions between those engaged in conducting a private business and those the nature of whose business subjects their occupation the public regulation. This contention fell with the false assumption upon which it was founded when it appeared that the permits issued were not contracts conferring property rights, but revocable licenses, and that the rates of fare which the city attempted to prescribe related only to the business of hackmen who from time immemorial have been the subject of public regulation. If, however, the rates prescribed were in fact so low as to make it impossible to operate motor vehicles under them at a profit, that fact would tend to establish that the ordinance itself was unjust and unreasonable. The ordinance prescribes the following rates: For not more than two passengers for the first half mile or any portion thereof, thirty cents, and for each succeeding one-quarter mile or any portion thereof, ten cents. For three or more passengers for the first half mile or any portion thereof, forty cents, and for each succeeding one-sixth mile or any portion thereof, ten cents. The affidavits submitted upon these motions fall far short of satisfying the court that the rates of fare prescribed are unjust and unreasonable. On behalf of the defendants evidence is adduced to show that such motor-driven vehicles can be operated at a profit upon the rates prescribed. Upon this question the motions present a sharp conflict of fact which should not be determined upon affidavits upon a preliminary hearing in advance of trial. When it is realized that the rates heretofore prevailing were necessarily so high as not only to pay a fair profit to those rendering service, but also to defray the large sums which these persons were accustomed to pay to those operating hotels in front of whose premises private hack stands were established, it is easy to understand that the rates heretofore prevailing represented a profit upon something other than the cost of rendering the service.
Indeed, the plaintiffs contend that the rates of fare prescribed are confiscatory and unreasonable, not because they will not permit those rendering such services to receive a fair profit for the service rendered, but because they would fail to yield a fair return upon all the property employed by the corporation rendering the service. In short, the contention is that the rule declared by the United States Supreme Court for determining the reasonableness of rates in cases of a railroad corporation operating under a franchise are applicable to hackmen operating under a revocable license. The claim is too unreasonable, too clearly contrary to the fundamental principles which have been discussed above to be entitled to further comment.
The contention advanced by the plaintiffs that the ordinance requires the driver to have been a resident of the city for at least a year and that it therefore violates article IV, section 2, of the Federal Constitution, which provides that "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states," is completely answered by pointing out that the ordinance does not contain such a requirement or prescribe conditions from which it can reasonably be inferred that such a requirement exists. The examination made of the objections urged to the ordinance shows that these objections are without merit and that the ordinance itself, in so far as its provisions are involved upon these motions, in no way offends against any constitutional or statutory provision or against any canon by which the validity of a municipal ordinance may justly be tested.
The ordinance was not hastily adopted. Careful and thorough examination and investigation of the whole subject matter involved preceded the framing and adoption of the ordinance. Upon the whole the ordinance must be pronounced a serious and well considered attempt to remedy abuses which have grown to such an extent as to make the application of a remedy imperative.
The motions are denied, with costs, and the temporary injunctions heretofore granted are vacated and set aside.
Motions denied, with costs.