Opinion
7 Div. 37.
March 27, 1934. Rehearing Denied April 10, 1934.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Robert Wright was convicted of violating an ordinance of the City of Anniston, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Wright v. City of Anniston, 228 Ala. 554, 154 So. 599.
The ordinance in question makes it unlawful to solicit business, for passenger or baggage vehicles or hotel or lodging house, at or upon the premises, or along the tracks, under the sheds or in the passageways, walkways, or waiting rooms of the passenger station of any railway company in the city of Anniston, except as provided in the ordinance. It is then provided that all persons so soliciting shall do so beyond a designated line from the depot shed or tracks, marked under direction of the city counsel, but providing, however, that any railroad having a depot in said city may designate one agent or licensee who may maintain a booth or other place of business within said station or on its premises, and may designate an area (within limits fixed) within which solicitation may be done by such agent or licensee.
The ordinance further prohibits parking of vehicles for hire at depots within an area fixed, provided that licensees or designated agents of the railways may park one vehicle for transfer of baggage or passengers in a space to be designated and marked under direction of the council, within such area.
Merrill, Jones Whiteside, of Anniston, for appellant.
The policy of the law in Alabama is to prevent any discrimination or any favors or rebates or any concessions to any person or member of any class by a common carrier or public utility. Const. 1901, §§ 243, 245; Code 1923, §§ 10028, 10029, 5353, 5372; Montgomery v. West, 149 Ala. 311, 42 So. 1000, 9 L.R.A. (N.S.) 659, 123 Am. St. Rep. 33, 13 Ann. Cas. 651; Talladega v. Sims, 8 Ala. App. 471, 62 So. 958. It is against public policy for any railroad company or public utility to grant to a transfer company the exclusive right and privilege to enter upon the premises for the purposes of soliciting trade or patronage, and any ordinance to authorize or ratify any such act is void. Lindsay v. City of Anniston, 104 Ala. 257, 16 So. 545, 27 L.R.A. 436, 53, Am. St. Rep. 44; Kalamazoo H. B. Co. v. Sootsuma, 84 Mich. 194, 47 N.W. 667, 10 L.R.A. 819, 22 Am. St. Rep. 693; Mont. U. R. Co. v. Langlois, 9 Mont. 419, 24 P. 209, 8 L.R.A. 753, 18 Am. St. Rep. 745; Palmer Tr. Co. v. Anderson, 131 Ky. 217, 115 S.W. 182, 19 L.R.A. (N.S.) 756, 133 Am. St. Rep. 237; State v. Reed, 76 Miss. 211, 24 So. 308, 43 L.R.A. 134, 71 Am. St. Rep. 528.
J. F. Matthews and Knox, Acker, Sterne Liles, all of Anniston, for appellee.
The city council has the right and authority to regulate the use of streets, avenues, alleys, or public utility, or private enterprise, and to regulate and license the use of carts, drays, wagons, coaches, omnibuses, and every description of carriage and vehicle kept for hire. Const. 1901. § 220; Code 1923, § 2163; Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117; Birmingham Elec. Co. v. Allen, 217 Ala. 607, 117 So. 199: Giglio v. Barrett, 207 Ala. 278, 92 So. 668. Municipal corporations and railroad companies may regulate the parking of vehicles in a public highway adjacent to a railroad depot and may prefer one transportation company as against all others. Donovan v. Penna. Co., 199 U.S. 279, 26 S.Ct. 91, 50 L.Ed. 192; Kenyon Hotel Co. v. Oregon S. L. R. Co., 62 Utah, 364, 220 P. 382, 33 A.L.R. 343; Depot C. B. Co. v. K. C. T. R. Co. (C. C.) 190 F. 212; CityCab, C. T. Co. v. Hayden, 73 Wn. 24, 131 P. 472, L.R.A. 1915F, 726, Ann. cas. 1914D, 731.
This action originated in the recorder's court, where the appellant was tried and convicted for the violation of a certain ordinance of the city of Anniston, entitled: "An ordinance regulating the solicitation of business of taxicab drivers, hack drivers, hotel porters, and the parking of motor vehicles and other vehicles at and in front of railway depots in the City of Anniston."
The specific charge was "Soliciting passengers at Southern Depot under shed."
An appeal was taken to the circuit court where the trial was had upon a complaint filed by the attorney for plaintiff.
The cause was tried by the court without a jury, upon an agreed statement of facts, the court rendered judgment against the defendant, from which this appeal was taken.
In the lower court, as here, the sole question is whether or not the ordinance, supra, under which appellant was convicted, is valid. This question is properly presented for consideration; the point of decision being presented in several ways.
The facts of the case as agreed upon are as follows:
"1st. It is agreed that an ordinance was adopted by the City of Anniston on September 22, 1927 and approved by the Mayor on the 23rd day of September, 1927, true copy of which is hereto attached, and all questions as to the adoption of said ordinance or of the production of the original or certified copy of said ordinance are hereby waived, and said ordinance is to be used as evidence subject to the objections by defendant further than objections as to the adoption of said ordinance.
"2nd. It is further admitted that a few days prior to the swearing out of the warrant in this case on the 16th day of March, 1933, Robert Wright did go under the shed at the Southern Railway Depot within the City of Anniston, Alabama, and there solicit business contrary to said ordinance and as alleged in complaint filed in this cause.
"3rd. That as provided under the provisions of said ordinance the Southern Railway Company had designated or named as its agent or licensee the Nixon Baggage Cab Company of Anniston, a company operating a fleet of taxicabs, and that the said Nixon Baggage Cab Company regularly during said time sent two of its drivers under said sheds to solicit passengers from incoming trains and also parked a taxicab on the south side of Fourth Street as provided in said ordinance could be done by such licensee or agent. That defendant is and was at said time a driver of Patty Taxi Company operating a fleet of taxicabs and being a competitor of the Nixon Baggage and Cab Company."
Appellant insists, in effect, that the ordinance in question is unreasonable, unfair, and discriminatory, hence void.
Appellee, of course, takes the opposite view.
Upon investigation we find the authorities on the point of decision here involved in conflict. We, of course, shall not attempt to reconcile this conflict, but after a full investigation we are impressed that the weight of authority does not sustain the insistence of appellant and that the ordinance must he upheld. One of the leading and one of the most instructive decisions bearing upon the question is that of Donovan v. Pennsylvania Company, 199 U.S. 279, 26 S.Ct. 91, 50 L.Ed. 192. This case supports our view as to the validity of the ordinance, but we shall refrain from quoting the decision at length, for by mere reference thereto it will be ascertained that the case is directly in point, and this eminent authority must of necessity control the holding of this court.
Another decision which further convinces us that the ordinance here is not unfair and discriminatory as contended as Kenyon Hotel Company et al. v. Oregon Short Line Railroad Company et al., 62 Utah, 364, 220 P. 382, 33 A.L.R. 343. This case appears to be directly in point. The court said: "A municipal corporation and railroad company may regulate the parking of vehicles in the public highway immediately in front of depot entrances, and prefer certain operators of transportation conveyances to others in the allotment of space." Also: "An ordinance allowing the public authorities to designate parking places in the public streets, near railroad depots, and forbidding passenger vehicles to which space is not allotted to park except at such places as are designated by the railroad companies, does not unlawfully delegate authority over the public streets to the railroad companies," etc.
Unless it appears upon the face of an ordinance formulating rules for the use of streets adjacent to railroad stations that they are arbitrary and unreasonable, the court must assume that they were adopted to meet some existing emergency and that the city authorities were warranted in passing them. Kenyon Case, supra.
Without prolonging this opinion, we hold that the ordinance in question is not only constitutional and valid, but under the facts shown is proper and reasonable.
It follows that the judgment in the court below from which this appeal was taken must be, and is, affirmed.
Affirmed.