This is an original proceeding in habeas corpus. The petitioner alleges in his petition:
That he is unlawfully restrained by the chief of police of Oklahoma City. That he is charged in the police court with the violation of Ordinance No. 4395, section 1, which is as follows:
"It shall be unlawful and an offense for any person, firm or corporation to drive or operate any ambulance on the streets within the city of Oklahoma City, on any emergency call without first having called the police station of the city of Oklahoma city and having received permission to make said emergency call. The radio dispatcher in *Page 368 the said police station shall authorize the first ambulance operator who calls reporting an emergency call to make said call and shall inform all subsequent persons who report said call that the emergency call is already being made by the one who has called first. Any person, firm or corporation other than the first one to report and receive permission to make said call, who makes an emergency call, shall be guilty of an offense."
That he was convicted and fined the sum of $10 and costs. Your petitioner further alleges:
"That his restraint is illegal and unauthorized in that said Ordinance No. 4395 is unconstitutional, void and violative of petitioner's rights under the Constitution of the United States and the Constitution and Statutes of the state of Oklahoma; in that said ordinance is arbitrary, discriminatory in restraint of trade, and unreasonable, both in its contents and method of administration. Said ordinance is unconstitutional and void, for the further reason that it is not within the police power of the city of Oklahoma City, Oklahoma, and deprives your petitioner of his liberty and use of his property without due process of law.
"Your petitioner further alleges and states that said ordinance is void and unreasonable for the reason that said ordinance requires your petitioner to first secure a permit to make an emergency call and in case a permit has been granted to another ambulance driver to make the same call, then your petitioner is refused said permit, all of which prevents this petitioner from making a call to any particular place within the city limits, as well as any particular place at any distance outside the city limits, for the reason that said ordinance prohibits him from using the city streets in reaching the city limits in making a call outside of the city limits."
It is further alleged by the petitioner that said ordinance is a violation of section 10327, rule 7, Oklahoma Statutes 1931, which is as follows: *Page 369
"At intersecting roads or streets, vehicles approaching from the right shall have the right of way over those approaching from the left. United States mail, fire apparatus, ambulances, police patrols, and vehicles of physicians, when plainly designated, shall have right of way in any street or road or through any procession."
Petitioner further alleges that he has at all times driven his ambulance plainly designated in large letters in four different places the word "ambulance"; that in making the call for which he was arrested and convicted it was necessary for your petitioner to use South Robinson street in the city of Oklahoma City, or some other adjoining street, in order to arrive at the city limits; the call he was answering was several miles outside the city.
This being a proceeding in habeas corpus, the question to be determined is the validity of the ordinance. If the ordinance is within the police power of the city of Oklahoma City, the police court had jurisdiction of the defendant and the subject-matter, and the writ should be denied, but, if the city of Oklahoma City in passing this ordinance went beyond the power granted to it by the statute laws of Oklahoma and its charter and exceeded its police power, then the writ should be granted.
In Ex parte Hall, 49 Okla. Cr. 366, 294 P. 823, this court, in considering an ordinance of the city prohibiting ambulances using sirens as a warning to pedestrians of the city that the ambulance was approaching, said:
"An ambulance, when plainly designated, has the right of way in any street or road through any procession."
Hall had been convicted of having used a siren on his ambulance, in violation of the city ordinance which prohibited the use of the siren. The respondent, the city *Page 370 of Oklahoma City, urged the ordinance was for the purpose of preventing an obnoxious noise which disturbed the peace and repose of the citizens of the city.
This court sustained the ordinance and held that the ordinance applied to all ambulances alike, and that it did not take away any right or give any preference to one ambulance driver over another. The question in the Hall Case is not the same as the question in this case. It is not disputed a city under its police power may regulate the operation of traffic, and it is conceded that the statutes give the city the right to regulate the kind of horn, bell, or gong vehicles having a preference may use.
In this case the question involved is, Has the city the right to compel the owner of an ambulance, when he receives an emergency call, to delay and take time to report it to the police department, and get its permission to make the call? We do not think so. The respondent urges the ordinance the defendant is charged with violating is a valid ordinance, and that it has the right to enforce the same, notwithstanding it requires the owner of the ambulance who receives the emergency call to report to the police department and secure permission to make the call before an ambulance owner can answer the call. The petitioner insists that, when the city attempts to enforce the ordinance that requires him on receiving an emergency call for an ambulance to report to the police department and get permission to make the call, it interferes with, restrains and injures his business, and that part of the ordinance requiring him to secure permission to make the call before he starts is unconstitutional and void.
It is shown by the petitioner that he complied with the regulations of the statutes, and ordinance of the city, *Page 371 by having his ambulance plainly labeled in four different places with the word "Ambulance," and that in making the call it was driven with care, and all the rules and regulations of the city as to operating an ambulance on the streets of said city, regarding signals, speed, and signs, were observed by the driver.
In Choctaw Pressed Brick Company v. Townsend, 108 Okla. 240,236 P. 46, 50, the Supreme Court in part said:
"There is no such thing as the proper exercise of police power, where the exercise of such power results in pecuniary injury to private citizens without compensation for such injury.
"Section 7, art. 2, and sections 23 and 24, art. 2, of the Constitution, each forbids such a policy, and each renders such policy incompatible with the doctrine of proper exercise of police power."
In United States v. Cohen (D.C.) 268 F. 420, the court said:
"A statute cannot declare a thing a nuisance which is obviously not a nuisance, the abatement of which as a nuisance would violate the constitutional guaranty of due process of law and just compensation for private property taken for public use."
In vol. 6, R. C. L. § 226, p. 236, it is said:
"The police power of the state extends only to such measures as are reasonable, and the general rule is that all police regulations must be reasonable under all circumstances. In every case it must appear that the means adopted are reasonably necessary and appropriate for the accomplishment of a legitimate object falling within the domain of the police power."
In volume 6, R. C. L. § 227, it is further stated:
"One application of the familiar rule that the validity of an act is to be determined by its practical operation and *Page 372 effect and not by its title or declared purpose is that a constitutional right cannot be abridged by Legislature under the guise of police regulations; since the Legislature has no power, under the guise of police regulations, to invade arbitrarily the personal rights and personal liberty of the individual citizen, or arbitrarily to interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations, or to invade property rights."
In City of Hagerstown v. Baltimore Ohio R. Co.,107 Md. 178, 68 A. 490, it is held:
"An ordinance making unlawful the keeping of domestic animals in a town in a certain manner, without a permit from the mayor and council, is invalid, as capable of being administered partially or unreasonably."
In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, the Supreme Court of the United States, in construing an ordinance in the fourth and sixth paragraphs of the syllabus, said:
"4. The order of the city and county of San Francisco, providing that it should be unlawful for any person to engage in the laundry business within the corporate limits 'without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone,' does not prescribe a rule and conditions for the regulation of the use of laundry property, to which all similarly situated may conform; but it confers a naked arbitrary power upon the board to give or withhold consent, and makes all engaged in the business the tenants at will as to their means of living, under the board of supervisors."
"6. Though a law be fair on its face and impartial in appearance, yet, if it is administered by public authority with an evil eye and an unequal hand, so as practically to make illegal discriminations between persons in similar circumstances, material to their rights, the denial of *Page 373 equal justice is still within the prohibition of the Constitution."
This court has been extremely liberal in its interpretation of police power of municipalities, but the effect of the ordinance in question is to carry such regulations to an absurd, unjustifiable, and unreasonable extreme, and beyond the police power of the city. The administration of the ordinance in question is left entirely to the radio dispatcher, and, if that radio dispatcher should see fit to favor a certain funeral home, whether for profit, friendship, or because of malice toward others, it would be easy for him to do so. It matters not how urgent the emergency call, under the terms of this ordinance the owner of the ambulance cannot answer without being subjected to a fine, unless he first secures permission of the radio dispatcher to make the call.
If Oklahoma City, in the exercise of its police power, may regulate ambulances to such an extent that all calls must come through the police department, then it may, by ordinance, require all taxicabs, milk wagons, grocery delivery wagons, trucks, and all other means of transportation which uses its streets to fill orders only by calls placed through the police department. To advance such an argument immediately reveals its absurdity.
Under the police power of the city it has the right to regulate the use of its streets in a reasonable manner by prohibiting reckless driving, establishing stop lines, and prohibiting undue noises and other things of like character, but the city may not in the exercise of its police power place arbitrary, unreasonable, and discriminatory regulations upon any business.
For the reasons stated herein, we hold that the ordinance in question exceeds the police power of the city. *Page 374 The writ is granted, and petitioner ordered discharged.
CHAPPELL, J., concurs.