[No. 14239. En Banc. November 8, 1917.]
EARL HADFIELD et al., Appellants, v. ALFRED H. LUNDIN,
as Prosecuting Attorney for King County, Respondent. «1»
MUNICIPAL CORPORATIONS - USE OF STREETS - MOTOR VEHICLES -
REGULATION - BONDS - CONSTITUTIONAL LAW - DUE PROCESS - EQUAL
PROTECTION OF LAWS. The jitney bus act, Rem. Code, SS 5562-37
et seq., requiring city motor carriers of passengers for hire
to give a security bond executed by a qualified surety company,
does not violate the constitutional prohibitions against
depriving one of property without due process of law, or of
the equal protection of the laws, notwithstanding the act is
prohibitive from the fact that there are no qualified surety
companies from which such bonds are obtainable; since the state
in the exercise of its police power can prohibit the use of the
streets as a place of private business.
SAME - USE OF STREETS - MOTOR VEHICLES - REGULATION - BONDS -
STATUTES. Rem. Code, SS 5562-38, requiring city motor carriers of
passengers for hire to give a security bond executed by a surety
company to do business in this state, running to the state of
Washington, conditioned for the faithful compliance with the
provisions of the act, is not satisfied by procuring a liability
bond by a mutual union insurance company indemnifying the carrier
against liability for damages, and assigning such bond to the
state for the benefit of third persons who may be injured by the
negligent driving of the vehicle.
Appeal from a judgment of the superior court for King
county, Gilliam, J., entered May 25, 1917, dismissing an
action for an injunction, upon sustaining a demurrer to the
complaint. Affirmed.
William R. Crawford and Ralph S. Pierce, for appellant.
Alfred H. Lundin and Frank P. Halsell, for respondent.
James B. Howe, amicus curiae.
«1» Reported in 168 Pac. 516.
658 HADFIELD v. LUNDIN.
Opinion Per ELLIS, C.J. 98 Wash.
ELLIS, C.J. - Plaintiff, in his own behalf and in behalf of
others similarly situated, seeks in this action to enjoin
defendant, as prosecuting attorney of King county, from
prosecuting persons for operating motor propelled vehicles for
hire upon the public streets of Seattle without having filed
the bond and obtained the permit required by chapter 57,
Laws of 1915, p. 227; Rem. Code, SS 5562-37 et seq.
He alleged, in substance, that, since the passage of that
act up to and including a time shortly preceding the
commencement of this action, he had been engaged in the
business of transporting for hire passengers along the public
streets of Seattle in an automobile; that, during such time,
he had on file with the secretary of state a bond executed by
a qualified surety company in the sum and conditioned as
required by that act; that the bond has expired and is now
under its terms null and void; that he has been unable to
secure a new bond from any surety company doing business
in this state, and that no such surety company will write
such a bond for him or for any other person engaged in a
business similar to that of plaintiff, and this, regardless of
the financial responsibility of the applicant; that the
secretary of state threatens to, and will, cancel plaintiff's permit
and will refuse to issue to him another permit, unless and
until plaintiff procures and files a surety bond as required
by the act. He further alleged that the Mutual Union
Insurance Company, a domestic mutual insurance company,
has been organized and is authorized to write liability or
indemnity insurance against loss or damage resulting from
accident or injury suffered by an employee or other person
for which the insured is liable; that such company has issued
to plaintiff its contract for such liability in the penal sum
of $2,500 which is, by its terms, assignable to the state of
Washington in behalf of any person who may be injured
through the negligence or unlawful conduct of plaintiff in
the conduct of his business of carrying passengers for hire;
that this contract has been assigned to the state of
HADFIELD v. LUNDIN. 659
Nov. 1917 Opinion Per ELLIS, C.J.
Washington for the protection of any person so injured; that,
notwithstanding the fact that a solvent fund has been so
provided, defendant threatens strictly to enforce such law
and compel plaintiff to secure a permit from the secretary of
state and to furnish a bond signed by a surety company
licensed to do business in this state; that such a course will
force plaintiff out of a profitable and legitimate business,
deprive him of his means of livelihood and inconvenience the
public. Finally, it is alleged:
"That such law is null and void because so burdensome as
to be unreasonable; because it is arbitrary, confiscatory,
impossible of fulfillment and tantamount to a prohibition against
the carrying on by the plaintiff of a legitimate business;
that it contravenes the constitution of the state of
Washington, section 3, article 1 thereof, and the constitution of
the United States, article 14 thereof, in that it deprives the
plaintiff of his liberty and property without due process of
law and denies to the plaintiff the equal protection of all the
provisions of the constitution of the state and of the United
StaLes applicable thereto."
Defendant moved to dismiss the complaint on the ground
that it did not state facts sufficient to constitute a cause of
action. The motion was sustained and the complaint was
dismissed. Plaintiff appeals.
Appellant's contentions are (1) that chapter 57, Laws
of 1915, p. 227 (Rem. Code, SS 5562-37 et seq.), is
unconstitutional; (2) that, in any event, he should be permitted to
assign to the state and file the indemnity bond tendered in
his complaint as a sufficient compliance with the statute.
I. It is urged that the statute is unconstitutional in
that it deprives appellant of his liberty and property without
due process of law, thus contravening section 3, article 1,
of the state constitution, and in that it deprives him of the
equal protection of the law in contravention of the
Fourteenth Amendment of the Federal constitution. We have
twice held this law constitutional. State v. Seattle Taxicab
87 Transfer Co., 90 Wash. 416, 156 Pac. 887, State v. Ferry
660 HADFIELD v. LUNDIN.
Opinion Per ELLIS, C.J. 98 Wash.
Line Auto Bus Co., 93 Wash. 614, 161 Pac. 467. But it is
argued that, in neither of those cases, did it appear that
bonds of the character prescribed by the law could not be
procured, which fact does appear in the record now before us
and which, it is asserted, demonstrates the unconstitutionality
of the law. We shall confine our discussion to a consideration
of that question.
The streets and highways belong to the public. They are
built and maintained at public expense for the use of the
general public in the ordinary and customary manner. The
state, and the city as an arm of the state, has absolute
control of the streets in the interest of the public. No private
individual or corporation has a right to the use of the streets
in the prosecution of the business of a common carrier for
private gain without the consent of the state, nor except upon
the terms and conditions prescribed by the state or
municipality, as the case may be. The use of the streets as a place
of business or as a main instrumentality of business is
accorded as a mere privilege and not as a matter of natural
right. In State v. Seattle Taxicab 4; Transfer Co., supra,
we said:
"As to those who were denied bonds, the act may be
prohibitive, but this does not argue against its constitutionality.
It in no manner proves that the regulation is unreasonable.
Highways are constructed primarily as a convenient
passageway for all of the people, and no one has an absolute
right to use them for his own private gain, even though such
use be to carry over them people who desire the service."
In Green v. San Antonio (Tex. Civ. App.), 178 S. W. 6,
it is said:
"So in this case, appellant has never had any vested right
to use the streets of San Antonio to engage in the business
of a common carrier of passengers for hire, and no right of
his is infringed or invaded by the ordinance requiring
certain things to be done in order to enter into business on the
streets, which have, at the expenditure of large sums, been
placed by the city in prime condition for automobile travel.
HADFIELD v. LUNDIN. 661
Nov. 1917 Opinion Per ELLIS, C.J.
The streets belong to the public, the city being its trustee,
and no private individual or corporation has a right to use
such streets for the prosecution of a business without the
consent of the trustee and a compliance with the conditions
upon which the permission to use them is given."
In Le Blanc v. New Orleans, 138 La. 243, 70 South.
it is said:
"The streets of the cities and towns in Louisiana being
among the things that arc 'public' and 'for the common use,'
no individual can have a property right in such use for the
purposes of his private business, unless, speaking generally,
that business being in the nature of a public service or
convenience, such as would authorize the grant, the right has
been granted by the state, which alone has the power to make
or authorize it, or, by the particular city or town, acting
under the authority of the state, and in such case the right
can be exercised only in accordance with the conditions of
the grant; that is to say, an individual seeking, but not
possessing, a right of that kind, may accept the grant, with the
conditions imposed by the offer, in which case he becomes
bound by the conditions, or he may refuse to accept the
conditions, in which case there is no grant, and without the grant
so offered, or some other, from the authority competent to
make it, he can never acquire the right to make use of a
street as his place of business."
See, also, to the same effect, Memphis Street R. Co. v.
Rapid Transit Co., 133 Tenn. 99, 179 S. W. 635, Ann. Cas.
1917C 1045, L. R. A. 1916B 1143, P. U. R. 1916A
Memphis v. Stole ex rel. Ryals, 133 Tenn. 83, 179 S. W. 6,91,
Ann. Cas. 1917C 1056, L. R. A. 1916B 1151, P. U. R.
1916A 825; Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781,
L. R. A. 1915F 840; Ex parte Lee, 28 Cal. 719, 153 Pac.
992; Lutz v. New Orleans, 235 Fed. 978. These cases,
though involving regulatory statutes or ordinances, all
recognize and are based upon the fundamental ground that
the sovereign state has plenary control of the streets and
highways, and, in the exercise of its police power, may
absolutely prohibit the use of the streets as a place for the
662 HADFIELD v. LUNDIN.
Opinion Per ELLIS, C.J. 98 Wash.
prosecution of a private business for gain. They all
recognize the fundamental distinction between the ordinary right
of a citizen to use the streets in the usual way and the use
of the streets as a place of business or main instrumentality
of a business for private gain. The former is a common
right, the latter an extraordinary use. As to the former,
the legislative power is confined to regulation; as to the
latter, it is plenary and extends even to absolute prohibition.
Since the use of the streets by a common carrier in the
prosecution of its business as such is not a right, but a mere
license or privilege, it follows that the legislature may
prohibit such use entirely without impinging any provision either
of the state or Federal constitution.
In Allen v. Bellingham, 95 Wash. 12, 163 Pac. 18, we said:
"But the use to which the appellant purposes putting the
streets is not their ordinary or customary use, but a special
one. He purposes using them for the transportation of
passengers for hire, a use for which they are not primarily
constructed. As to such users, we think the power of the
municipality is plenary, in so far as this particular clause of the
statute is commenced. It denies no form of regulation
pertaining to business of this character, even to the prohibition of
the business entirely."
That language may be said to be obiter, but it states the
correct principle as amply sustained by authority. In
Cummins v. Jones, 79 Ore. 276, 155 Pac. 171, the supreme court
of Oregon, after discussing and quoting at length from many
authorities said:
"We conclude, therefore, that since the ordinance in
question is purely prohibitory, and cities have the undoubted
right to prohibit such use of their streets, the demurrer should
have been sustained."
In Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W.
668, the Texas Court of Civil Appeals said:
"The ordinance in question does not undertake to prevent
or interfere with the right of the appellees to purchase, sell,
or otherwise deal in the products referred to upon their own
HADFIELD v. LUNDIN. 663
Nov. 1917 Opinion Per ELLIS, C.J.
premises; nor does it prohibit other persons from carrying
such products and delivering them to appellees upon their
premises. . . . But appellees have no vested right to
make marts of the streets, alleys, and other public places;
and to deny them the privilege of so doing is not to destroy
or deteriorate any of their property rights."
In Ex Parte Dickey, supra, the supreme court of West
Virginia used the following language:
"The right of a citizen to travel upon the highway and
transport his property thereon, in the ordinary course of life
and business, differs radically and obviously from that of
one who makes the highway his place of business and uses it
for private gain, in the running of a stage coach or
omnibus. The former is the usual and ordinary right of a citizen,
a common right, a right common to all, while the latter is
special, unusual, and extraordinary. As to the former, the
extent of legislative power is that of regulation; but as to the
latter, its power is broader. The right may be wholly denied,
or it may be permitted to some and denied to others, because
of its extraordinary nature. This distinction, elementary
and fundamental in character, is recognized by all the
authorities."
See, also, People v. Rosenheimer, 209 N.Y. 115, 102 N. E.
580, Ann. Cas. 1915A 161, 46 L. R. A. (N. S.) 977; Memphis
v. State ex rel. Ryals, supra; Fifth Ave. Coach Co. v. New
York, 194 N.Y. 19, 86 N. E. 824, 21 L. R. A. (N. S.) 744.
The regulation here involved, even considered as a
prohibition, does not contravene the Fourteenth amendment of the
Federal constitution.
"It is settled that the fourteenth amendment does not
create any right in a citizen to use the public property in
defiance of the laws of the state." Lutz v. New Orleans, supra.
See, also, Davis v. Massachusetts, 167 U. S.
If any proposition may be said to be established by
authority, the right of the state, in the exercise of its police power,
to prohibit the use of the streets as a place of private
business or as the chief instrumentality in conducting such
business, must be held so established. Nor can it be questioned
664 HADFIELD v. LUNDIN.
Opinion Per ELLIS, C.J. 98 Wash.
that the power to prohibit includes the power to regulate,
even to the extent that the regulation under given
conditions may be tantamount to a prohibition. Where the power
to prohibit exists the reasonableness of any regulation is
palpably a legislative question, pure and simple. To hold
otherwise, would be to assert an absurdity. When the
legislature acts within its constitutional authority in the exercise
of the police power, the expediency of its action is not a
question for the courts. In such a case, the power once being
established, the legislature determines by the enactment itself
that the law is reasonable and necessary. State v. Mayo,
106 Me. 62, 75 Atl. 295, 26 L. R. A. (N. S.) 502.
The complaint before us shows that the statute in
question not only could be complied with, but for over a year was
complied with by the appellant himself. If, as asserted,
appellant is now unable to meet those requirements because the
character of bond required by the act cannot be secured, then
he is not entitled to the privilege which the statute grants;
and this, simply because the grant was conditioned upon the
meeting of those requirements. Le Blanc v. New Orleans,
supra.
II. Appellant urges that he should be accorded the right
to procure a liability bond indemnifying himself against
liability for damages, written by the Mutual Union Insurance
Company, and should be permitted to assign it to the state for
the benefit of third persons who may be injured by the
negligent operation of his vehicle and file it in lieu of "a bond
running to the state of Washington in the penal sum of
twenty-five hundred dollars, with good and sufficient surety company
licensed to do business in this state as surety to be approved
by the secretary of state, conditioned for the faithful
compliance by the principal of said bond with the provisions of
this act" as required by Rem. Code, SS 5560-38. We have
held that the Mutual Union Insurance Company cannot write
the bond required by the statute. State ex rel. Mutual Union
Ins. Co. v. Fishback, 97 Wash. 565, 166 Pac. 799.
McKNIGHT v. SHADBOLT. 665
Nov. 1917 Syllabus.
Appellant does not claim that an arrangement such as tendered
in his complaint would be a compliance with the law but
argues, in substance, that it is something just as good. But the
courts cannot legislate. The law-making body, acting within
its undoubted powers, has prescribed in plain terms the
conditions upon which appellants and others in like case may use
the streets in the prosecution of their business. The courts
have no power to alter such conditions. The statute is too
plain for construction. We are asked not to construe the
statute but to amend it under the guise of construction. We
must decline that office.
HOLCOMB, MAIN, MORRIS, CHADWICK, PARKER, MOUNT,
and FULLERTON, JJ., concur.
WEBSTER, J., took no part.