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by a public interest. American Surety Co. v. Shallenberger, 183 Fed. 636.

The great misfortune of the present day is the mania for regulating all human conduct by legislation. There has been of late years a reaction from the faith and responsibility of individualism which half a century ago was certain. Sense does not dictate, morals are forgotten or overlooked, the mutterings of the mob element are too greatly considered. Judges hand down decisions, legislatures pass acts, doctrines are advocated, which two or three generations ago would have been considered as shocking. In those days liberty was deemed the right of the citizen, to live and act as he thought best so long as his conduct did not invade the rights of others. Today the most fundamental principles of personal human rights are disregarded.

Since the Civil War the country has been divided on issues that normally belong to the conduct of the affairs of a great nation. These issues, and greater ones, too, are before us in the immediate and more remote future. We shall need all our resources of foresight, of patriotism, of good-will, to meet them as they should be met. But throughout this long vista of grapplings with great national questions we see looming up a source of division having no bearing upon them, having no proper relation to our national Union of self governing states, creating animosity and bitterness where once there had been concord; undermining the foundations of respect for law, breeding personal and official corruption on a scale never before approached, weakening in a thousand ways the moral resources of the nation. And this has come about not through the force of imperious necessity, but in the face of a peaceful and legitimate development which none have acclaimed more loudly than those responsible for the pernicious enactment which has brought that development to an end.

We favor removing the incubus of a statutory enactment imbedded in a Constitution to whose purpose and spirit it is wholly foreign. The drink question should be dealt with by laws which are repealable like other laws-when conditions change to suit civilization. Local option by the great Commonwealths is the safe sane method of dealing with the question. Today sixty per cent. of the American people are law breakers and outlaws. Let us once more become a people of self-government and law abiding freemen..

NOTICE

THE SO-CALLED "LAWYERS' GUARANTEED DIRECTORY" OF LAWYERS AN ALLIED PROFESSIONALS OF DETROIT, MICHIGAN, HAS NO CONNECTION WHATSOEVER WITH THE LAWYERS AND BANKERS DIRECTORY AND SELECT LIST OF COUNSEL.

WE ALSO WISH TO ANNOUNCE THAT MR. L. B. VANDERHOOP IS NO LONGER IN THE EMPLOY OF THE LAWYERS AND BANKERS CO. MR. VANDERHOOP'S ADDRESS IS 1716 FORD BUILDING. DETROIT, MICHIGAN.

JITNEY'S RIGHTS TO ROAD

By Edmund E. Shepherd of the Detroit, Michigan, Bar.

Editor's Note The legal rights of jitneys to the city roads in common with other vehicles is well set out in the brief of Edmund E. Shepherd, Esq., which follows. It was accepted by the Wayne Circuit Court as the law governing in an issue recently heard and determined at Detroit, Michigan. Mr. Shepherd is considered one of the ablest brief writers in the United States.

The bill of complaint was filed by the plaintiffs to enjoin the City of Detroit, its Mayor and Police Commissioner, and the Sheriff of Wayne County, from enforcing a certain ordinance of said city, known as the jitney ordi

nance.

Upon the filing of this bill, a temporary restraining order was signed, filed and entered by the Court. This case then came before the Court upon defendants' motion to dissolve the temporary restraining order, which was refused.

The sole questions involved in the hearing concern the constitutionality and validity of the ordinance, adopted by the Common Council of the City of Detroit and approved by the Mayor on the 29th day of May, 1922. The title of the Ordinance is as follows:

"An ordinance to license and regulate jitneys, so-called and to provide the conditions under which they may be operated on the streets, avenues and public places of the City of Detroit; providing for the establishing of the rate of fare that may be charged and providing a penalty for the violation thereof."

It contains nineteen sections; and with the exception of the latter portion of Section 4, each of these sections contain provisions for the regulation of jitneys, so-called. Section 4 provides:

"Every person, persons, firm or corporation operating any jitney shall supply the police department of the City of Detroit with the name, number and address of the owner and driver of and route upon which any jitney shall travel and make a prompt report showing any change regarding same. Provided, however, jitneys are hereby excluded from operating on Fort Street, West. Fort Street, East, Michigan Avenue, Grand River Avenue, Woodward Avenue, Gratiot Avenue, Jefferson Avenue, Cass Avenue, John R. Street and the parks and boulevards described in Chapter 65 of the Compiled Ordinances of 1920."

Turning to Chapter 65 of the Compiled Ordinances of 1920 we find that the boulevards described therein, include Grand Boulevard, East and West, Lafayette Boulevard, Boston Boulevard, Chicago Boulevard, Arden Park, LaSalle Boulevard, Washington Boulevard, Second Boulevard and Dexter Boulevard.

The constitutionality and validity of this ordinance is attacked upon the following grounds:

FIRST It contravenes the provisions of Section 28 of Article 8 of the Michigan Constitution, inasmuch as it provides for the unreasonable control and regulation of the jitneys on the streets of the City of Detroit, in that:

(a) It forbids the use by drivers of jitneys of any street in the City of Detroit, which might profitably be used by them, in the conduct of their business.

(b) It would utterly confiscate the property and business of the plaintiffs, and the true and only purpose for its adoption

is to eliminate jitneys from the streets and avenues of the City of Detroit, and utterly prohibit the conduct of such business, thereby rendering the remaining provisions of said ordinance mere surplusage and camouflage.

SECOND-It is in contravention of Section 28 of Article 8 of the Michigan Constitution and of Section 1 of the 4th Amendment to the Constitution of the United States, in that:

(a) It deprives said plaintiffs of property without due process at law.

THIRD-It embraces within its provisions more than one
object, thereby contravening the provisions of Section 17 of
Chapter 1 of Title 3 of the Charter of the City of Detroit.
FOURTH-It is class legislation.
ARGUMENT.

ONE: The ordinance embraces within its provisions more than one object.

Section 17 of Chapter 1 of Title 3 of the Charter of the City of Detroit, found on page 24 of the Charter, provides, in part, as follows:

"No ordinance shall embrace within its provisions more than one object."

A careful examination of the ordinance in question discloses not only two distinct objects embraced within its provisions, but the fact that the true object of the ordinance is carefully concealed as a joker within the provisions of Section 4, which, in effect, absolutely prohibits the operation of jitneys upon the principal streets and avenues and main thoroughfares of the City of Detroit, these constituting the only trunk lines and arteries of travel in that municipality. Its apparent object is to license and regulate these common carriers; some sixteen or seventeen sections of the ordinance are devoted to the development of an elaborate code governing the future conduct of the jitney drivers of the City of Detroit, while the proviso contained in Section 4 has the effect of nullifying all other terms and conditions under which the privilege to operate jitneys in the City of Detroit is to be governed. In other words, consent is given and a privilege extended, while in the same ordinance that privilege is withheld.

We cite the following authorities upon the subject of duplicity:
Manufacturing Company vs. Chambers, 58 Mich. 381.
Village of Fairview vs. City of Detroit, 150 Mich. 1.
People vs. Blumrich, 183 Mich. 133.

In People vs. Blumrich, supra, it is held:

"Act No. 226, Pub. Acts 1909, prohibiting the manufacture and sale of adulterated cigarettes and prohibiting the sale to minors, under penalty of fine or imprisonment, is unconstitutional and void, in so far as and because the title, 'An act to prohibit the manufacture, sale or use of adulterated cigarettes and prohibiting the use of cigarettes by minors,' is insufficient to warrant the insertion of a clause prohibiting the sale of cigarettes to minors"

The Court had to say:

"Whether the provisions of Section 2 absolutely prohibiting the sale of all cigarettes to minors can be sustained under this entitling will depend upon whether it can be considered by fair intendment as having a necessary or proper connection with the clause in the title of the act prohibiting the use of cigarettes by minors.

TWO:

"The highest authority states this proposition as follows: ""The generality of a title is therefore no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as Дhaving a necessary or proper connection.' Cooley's Constitutional Limitations (7th Ed.), p. 206, and cases cited."

The ordinance in question constitutes class legislation.

In this respect, it is complained that, while the driver of any motorpropelled vehicle designed to carry not to exceed seven persons, which is operated on the streets of the City of Detroit as a public carrier, and affording service similar to that of the street railway, for the service of which fares are charged or collected, are utterly prohibited from operating such jitneys upon the main thoroughfares of the city, at the same time the municipality allows, permits and licenses motor busses, so-called, to be operated upon the same streets.

The defendants, in their answer, reply to this by saying that the motor busses are constructed for the specific purpose of being operated as common carriers, but we respectfully submit that such contention is mere sophistry.

No complaint is here made of any discrimination in the mode of regulation of these sub-classes. What we do attack is the vicious purpose of the ordinance in prohibiting jitney drivers the use of the streets entirely, while permitting motor busses to be operated upon the restricted streets and avenues under practically the same regulations and conditions.

We respectfully submit the stressing by defendants' counsel, in their answer, of the fact that these motor busses are operated by a wealthy and responsible corporation, is but indicative of the real purpose for which the jitney ordinance was adopted, and illustrates the viciousness of this particular type of class legislation. It should also be pointed out in this particular connection that the ordinance was obviously adopted for the purpose of creating a monopoly to be exercised by the Street Railway Commission of the City of Detroit in the operations of these cars. In meeting this contention, it is asserted in defendant's answer, in substance, that jitneys constitute a greater peril to life, limb and body than do street cars; but this Court will take judicial notice of the fact that, while many actions are pending against the Street Railway Commission for injuries caused through the negligent operation of its street cars, few, if any, are pending against jitney drivers, or their sureties. It is also an open and notorious fact that, since the city took over the operation of the Street Railway System, accidents too numerous to mention have occurred.

Class legislation has been defined by our Supreme Court as:

"Such legislation as denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon another in like case offending."

People vs. Bellet, 99 Mich. 151.

It has also been said:

"Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the same class to which it naturally applies; but if it fails to include and affect alike all persons of the same

class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary sub-classification, it comes within the constitutional prohibition against class legislation."

Haynes vs. Lapeer Circuit Judge, 201 Mich. 138.

And in the case of Chaddock vs. Day it was held that a by-law adopted by the Village of Allegan, making it invalid for any person to sell or offer for sale on any street in the Village of Allegan, any fresh meat of any animal, in pieces or quantities less than a quarter of any such animal, without first paying into the village treasury the sum of ten dollars in advance, for each month, was invalid and unconstitutional, in that it constituted class legislation, and the Court say:

"It is quite common in these latter days for certain classes of citizens—those engaged in this or that business-to appeal to the government-national, state or municipal-to aid them by legislation against another class of citizens engaged in the same business, but in some other way. This class legislation, when indulged in, seldom benefits the general public, but nearly always aids the few for whose benefit it is enacted, but also at the expense and to the detriment of the many, for whose benefit all legislation should be, in a republican form of government, framed and devised. This kind of legislation should receive no encouragement at the hands of the courts, and be only upheld when it is strictly within the legitimate power of Congress, or the state or municipal legislatures."

Chaddock vs. Day, 75 Mich. 527.

THREE: The “regulations" prescribed and defined in the ordinance, and especially Section four (4) thereof, are so unreasonable as to render the ordinance invalid.

The pertinent terms and conditions of the ordinance have been pointed out in another sub-division of this brief, dealing with the question of duplicity; it provides for the issuance of a license by the Mayor to such applicants as may qualify under the conditions set forth, the payment of a license fee for the privilege thus granted, uniform rates of fare to be charged for a prescribed distance and within certain "mile circles," and an extra fare beyond the four-mile point, the displaying of certain credentials upon the car, and contains numerous other regulatory provisions, of a miscellaneous character. Yet, concealed and hidden, as a proviso and joker, within Section four of the ordinance, we find a clause excluding jitney drivers from operating upon any of the main arteries of travel in the city, and, in effect, absolutely prohibiting the driving of jitneys within the city limits; we submit the court will take judicial notice of the fact that this city is so laid out that it would be absolutely impossible to drive a car, as a common carrier of passengers, upon any route whatsoever, without infringing upon this provision of the ordinance.

Our Supreme Court, as well as the high courts of many other states, has repeatedly held that, in passing and adopting an ordinance regulating the use of streets and alleys or any other subject-matter, a municipal corporation must be governed by reason, and where such a local enactment is palpably and grossly unreasonable and arbitrary, it will not be allowed to stand. (a) People vs. Armstrong, 73 Mich. 288 (289). Chaddock vs. Day, supra.

(b)

(c) Hughes vs. Rec. Ct., 75 Mich. 574.

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