(dissenting in cases 24973 and 249741). The streets do not belong to the city. The public has the unquestionable right to the free use of them, and automobiles have this same right, subject only to reasonable regulations by the city.
“Ordinances which.are partial or unfair, or which discriminate in favor of one class against another, are invalid.” 28 Cyc. 370. “As it would be unreasonable and unjust to make, under the same circumstances, an act done by one person penal, and if done by another not so, ordinances which have this effect cannot be sustained.” Dillon, Mun. Corp. (3d Ed.) § 322.,
All these propositions are elementary, and are disputed by no one.
The accused, Calamar!, was arrested because his automobile was stationary on the street with a sign upon it announcing that it was “for hire.” The accused, Le Blanc, was arrested because while his automobile was stationary on the street he said “Auto?” to two passers-by, .as an invitation to them to hire his automobile. These arrests were thus made under an ordinance reading:
“Whereas to relieve congested traffic conditions in streets in the central business district of the city, it is expedient to facilitate the primary use of the streets as ways for public travel by limiting their use as stands for vehicles operated for hire, therefore,
“Section 1. Be it ordained, etc., that except as otherwise provided in this ordinance, no person shall use as a stand for any vehicle operated for a fee, charge, profit, reward or hire, any part of any of the following streets,” etc.
Here are named all the streets, except Canal street, in the central part of the city, on which alone, of course, it would pay to operate automobiles for hire. And the ordinance then continues:
“Provided that nothing herein shall be construed as depriving operators of such vehicles of the rights common to them and to operators of other vehicles to park vehicles in the streets for other purposes, as said rights are or may be determined and regulated by law or ordinance.”
It is here said that automobiles for hire may stand or park like other automobiles, provided they so stand or park for other purposes than for hire; that is to say, that they may not stand or park at.all.
*745How long an automobile for Lire may be at a standstill without violating the ordinance is a matter left to the sweet discretion of the policeman, for the ordinance makes no mention of length of time. It simply makes' It penal to stand or park.
Interpreting it, I should say that the meaning was that an automobile for hire may stop to put off, or. take on, a passenger, but not longer; that, for instance, it may not remain stationary for the length of time that might be required for the person hiring it to go into a store and make purchases.
As illustrative of this, I may say that on the trial of these two cases no evidence was adduced to show what length of time the .automobiles in question had remained stationary on the street. That point was -evidently considered to be immaterial. And, so it, in fact, is, for the ordinance forbids standing on the street, and makes no mention of length of time. .The effect is to forbid stopping at all except perhaps transitorily.
The proviso of the ordinance says that .automobiles for hire may stand or park “for other purposes” than for hire. This is but sdying that they cannot stand or park at all, for an automobile for hire operates for no other purpose than for hire, and hence to forbid it to stand for that purpose is to forbid it to stand at all. The reservation, therefore, which the proviso makes in their favor of “the rights common to them and to operators of other vehicles to park for other purposes” than for hire, reserves to them nothing. It is the exact equivalent of what the reservation to a negro of all the rights common in law to him and the white man would be if coupled with the proviso that in order to exercise these rights he would have to cease to be a negro and become a white man, or that he would have first to die.
The right of automobiles other than those for hire to stand or park is regulated by section 2 of article 5 of ordinance 6173, Com. O. These other automobiles may stand or park all day on Sundays and from 6 p. m. to 8 a. m. on other days, and for 15 minutes at a time during the other hours of these other days.
In the “whereas” of the ordinance in question in this case the reason is given why automobiles for hire are not allowed to park. That reason is declared to be “to relieve eon gested trafile conditions.” The automobiles for hire are allowed to operate to their hearts’ content: only they must not stand or park. It is the standing or parking, alone and exclusively, that is declared to congest the street and to be forbidden. In other words, automobiles for hire are thus discriminated against not for the reason that the fact of their being operated for hire renders them amenable to the police power in a greater degree than other automobiles, but solely and simply for the reason that if allowed to stand or park they would congest the traffic on the street. Their right to use the street is recognized and approved. Only they must not stand or park, and the reason, and sole reason, why they may not do so, is that if they do they will congest the street. Now, in all reason, will not any other class of automobiles congest the street just as much as an automobile for hire will; and, if both kinds congest the street alike if allowed to stand or park, is not an ordinance whose declared and sole purpose is to avoid congestion of the street unreasonable when solely to avoid congestion it excludes altogether the automobiles for hire and admits all others.
Says Dillon, supra:
“As it would be unreasonable and unjust to make, under the same circumstances, an act done by one person penal, and if done by another not so, ordinances which have this effect cannot be. sustained.”
*747The “circumstances” which led to the enactment of the ordinance in question are declared in the whereas of the ordinance to be that traffic on the streets in question will be congested if automobiles of all description are allowed to stand or part upon them. These “circumstances” are precisely alike for the automobiles for hire as for all other classes of automobiles, because a stationary automobile for kii;e will not congest the street any more than a stationary automobile of any other kind- will do. Observe that it is not because the automobile for hire is for hire that it is denied the right to stand or park, but, by' the express declaration of the whereas of the ordinance it is in order that the traffic on the street may not be congested. Manifestly, therefore, under this ordinance one class of automobile is penalized for an act for which, under precisely similar circumstances, other classes are not.
If it is said that the reason of this discrimination is that these automobiles for hire are more numerous, I answer that that is not a ground for excluding them altogether from privileges enjoyed by other automobiles ; and that, moreover, if mere number or numerousness is to be the basis of discrimination, the exclusion should be of the Ford automobiles, which in all probability are more numerous than those for hire.
If the reason for the discrimination is said to be that the automobiles for hire have a less right to the use of the street for standing purposes, or that they congest or obstruct the street to a greater degree than others, I answer that the very reverse is the case. The automobiles for hire being for the use of the public have in a sense a better right to the use of the streets which belong to the public than the other automobiles have which are merely for private use. And they are less likely to congest or obstruct, since they are at all times in chafge of a chauffeiir and remain stationary only so long as strictly necessary; whereas most other automobiles are used by their owners for coming and returning from the places of business of these owners, and would be left parked and unattended during the entire business day if allowed. These private automobiles when thus parked are in reality using the public street as a garage; whereas the operation of the automobile for hire, as well when standing as when moving, is for a public or quasi public purpose.
This view of the situation would come out very strongly if the commission council undertook to exclude the cars of the New Orleans Railways Company from the streets in order to make room for street cars'operated for private use. The automobiles for hire are operated for public use as much so as the cars of the New Orleans Railways Company are; and the other kinds of automobiles are operated for private purposes.
The operation of those automobiles for hire is for the convenience of the public. That they are for hire, far from being a circumstance justifying their exclusion, is a circumstance fortifying their right to admission.
I respectfully dissent.
Case No. 24974 is reported at post, p. 751, 91 South. 177.