Quigg v. State ex rel. Radel

Whitfield, J.

In habeas corpus proceedings before the Circuit Judge it appeared that E. H. Eadel, Jr., was held in custody under a conviction in the municipal court for operating a jitney bus on certain streets, a violation of an ordinance of the city of Miami. The validity of the ordinance was challenged. • To an order of the Circuit Court discharging the petitioner, a writ of error was allowed and taken under the statute. After reciting the conditions that prompted its adoption, the ordinance provides: “That for the purpose of this ordinance, a jitney bus is defined to be any vehicle other than a street railway car operated upon the streets of the city of Miami for the purpose of receiving, carrying and discharging as. passengers for hire such persons as offer themselves for transportation, or operated in such a manner for hire as to offer a means of transportation similar to that afforded by the street railway car:

“Section 2. That no jitney bns shall operate on the following streets:

“On Flagler Street from First Avenue east to Northwest Third Avenue.

“Nor on Flagler Street from Sixth Avenue West to Sixteenth Avenue West.

“Nor on Northwest First Avenue from Flagler Street to Northeast Thirteenth Street.

“Nor or Northeast Thirteenth Street between Northeast First and Second Avenues.

“Nor on Northeast Second Avenue from Northeast Thirteenth Street to Northeast Thirty-Sixth Street.

“Section 3. That any person found guilty of the violation of this ordinance shall be subject to a fine not exceeding one hundred dollars ($100.00) and imprisonment not exceeding thirty (30) days, or both such fine and imprisonment, at the discretion of the court. ’ ’

Under its charter the city has general welfare powers and also specific power ‘ ‘ To license, control, tax and regulate traffic and sales upon the streets, sidewalks and public places within the city — and to license and cause to be registered, and control, tax and regulate carriages, omnibuses, motor buses, cars, wagons, drays, jitney buses and other vehicles.”

The city has only such powers as are confered upon it by its charter or by law. See Florida Cent. & P. R. Co. v. Ocala St. & S. R. Co., 39 Fla. 306, 22 South. Rep. 692; ex parte Davidson, 76 Fla. 272, 79 South. Rep. 727.

Manifestly the express power “to license, control, tax and regulate traffic * upon the streets * and to license and cause to be registered, and control, tax and regulate * jitney buses and other vehicles,” does not confer authority to wholly prohibit the operation of jitney buses on streets of the city. Nor does the general welfare power clause authorize a prohibition of use when such vehicles are not shown to be inherently dangerous to those who travel the streets. Curry v. Osborne, 76 Fla. 39, 79 South. Rep. 293. If they are dangerously operated, that can be remedied by proper regulation, even to the extent of exclusion from use of the streets for not observing permissible regulations that may be enforced in the interest of the public safety and convenience. There is authority to license and to regulate the operation of such vehicles and all other when they- are being used on the streets; and such authority contemplates full regulation in the interest of the public welfare; but prohibition of such use in toto is obviously not contemplated by the express authority to license, tax, control and regulate. See Malone v. City of Quincy, 66 Fla. 52, 62 South. Rep. 992; Lawful regulation may partially prohibit by limiting and controlling the use; but it may not totally prohibit. Under the charter the city may regulate the .use of jitney buses on the streets in any reasonable way that conserves the public welfare, and in doing so may circumscribe their privileges in the use of the streets; but no authority for the quoted- ordinance entirely excluding jitney buses from streets, is shown.

Affirmed.

Browqvie, C. J., and Taylor, J., concur.

Elliíí and West, J. J., dissent.