
    The Public Service Commission of the State of New York, Second District, Respondent, v. Elmer G. Booth, Appellant.
    Third Department,
    December 3, 1915.
    Public service corporations—jitney bus lines operating in cities — nature of municipal permit — constitutional law — police power — legislation placing jitney bus lines under jurisdiction of Public Service Commission—when no impairment of vested rights.
    A license from the State or a municipality is construed not as a contract, but as a temporary permit to do what otherwise would be unlawful, and is not property in any legal or constitutional sense.
    Thus a municipal license permitting the licensee to operate a jitney bus line within the municipality does not create a vested right in the licensee so as to exempt him from the operation of chapter 667 of the Laws of 1915, amending section 25 of the Transportation Corporations Law, subsequently enacted, which required persons operating such bus lines in cities to obtain a certificate of convenience and necessity from the Public .Service Commission and subjects such line to reasonable regulations imposed by the Commission.
    In view of the fact that a jitney bus line uses the highways of a municipality and comes in competition with other vehicles carrying passengers for hire, the Legislature, in the exercise of its police powers, may subject such carriers to the jurisdiction of the Public Service Commission.
    Although said statute places only those bus lines charging a fare of fifteen cents or less under the jurisdiction of the Public Service Commission, there is no illegal discrimination against such carriers in violation of their constitutional rights.
    Appeal by the defendant, Elmer Gr. Booth, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on the 28th day of September, 1915, enjoining him from operating a motor jitney bus carrying passengers for hire in the city of Rochester, unless and until he shall procure the assent of the local authorities of said city, and a certificate of public convenience and necessity from the Public Service Commission of the State of New York, Second District, as required by sections 25 and 26 of the Transportation Corporations Law (Consol. Laws, chap. 63; Laws of 1909, chap. 219), as amended by chapter 667 of the Laws of 1915.
    
      Richard R. B. Powell, for the appellant.
    
      Ledyard P. Hale, for the respondent.
   Kellogg, P. J.:

In consideration of one dollar, the city of Rochester, on the 3d day of March, 1915, granted to the defendant a license permitting him “to carry on the business of public vehicle” within the city until December 31, 1915. While he was operating his motor jitney bus under that license, chapter 667 of the Laws of 1915 became effective, May twenty-second. He continued to operate his bus, claiming that the statute did not apply to him as he had a license from the city, and this action results.

Licenses from the State or a municipality are ordinarily to be considered, not as contracts, but as temporary permits to do what otherwise would be unlawful, and are not property in any legal or constitutional sense. (Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; People ex rel. Lodes v. Dept. of Health, 189 id. 187.)

By the charter and ordinances of the city of Rochester, a hackman or vehicle for transporting people from place to place for hire cannot operate in the city without a license, and the common council had power to grant such a license by section 86 of the charter of said city (Laws of 1907, chap. 755, as amd. by Laws of 1910, chap. 250). The only effect of the license was to make legal that which without it would be illegal. The Legislature of the State, therefore, under the police power, in providing for the safety and welfare of the public, may make laws defining what vehicles may be operated in the cities as public conveyances and the terms of operation. The Legislature cannot bargain away the police power of the State.

We do nob understand that the power of the Legislature to declare all jitney busses common carriers, and to require that they shall not operate without the certificate of the Public Service Commission as to convenience and necessity, is seriously questioned in this case. The contention is that the terms of the act indicate that it has no application to busses already operating under city license, and that it does not interfere with the existing contracts or vested rights. But we have seen that there are no existing contracts or vested rights under such a license, and that its effect is merely to permit the business to be carried on. From the fact that between J anuary 1 and May 22,1915, 737 licenses for jitneys or similar busses were granted in the city of Rochester, we may infer that it is a traffic of sudden and rapid growth, and that somewhat similar conditions exist throughout the State. These jitneys operate upon any part of the street and are not confined to a fixed track, and it is evident that when they are seeking fares in competition with the street cars and other busses, some regulation is necessary to protect the passengers and the public from careless driving and improper operation. It is evident that the Legislature in passing the statute in question had in view the protection of the public from the dangers incident to the traffic, and also the fact that these busses, carrying passengers for a small fare, come directly in competition with the street cars which can only be operated under a certificate of convenience and necessity and the reasonable regulations of the Public Service Commission. There is no difficulty in determining that the Legislature, within the police power, had the right to make this law. If the enactment of the statute was necessary, it was also necessary that it should have force at once, and as to all busses of this class. The mere fact that a bus had received a license from the city before the enactment of the statute, made it no less dangerous to the public than one which had no such license. There is no good reason why the statute should apply to the unlicensed bus any more than to one having a license. A law enacted for the safety and protection of the public should be so construed that the public may have the benefit of its full enforcement wherever its interests are threatened. The language of the statute seems to leave no doubt that it applies to all busses of the kind, no matter whether they were under a previous license or not. The expression in the 25th section of the Transportation Corporations Law (added by Laws of 1913, chap. 495, as amd. by Laws of 1915, chap. 667), “Any person or any corporation who or which owns or operates a stage route, bus line or motor vehicle line or route * * * shall be deemed to be included within the meaning of the term ‘ common carrier,’ ” etc., evidently refers to every stage route or line, and the expression in the 26th section (added by Laws of 1915, chap. 667), that no bus line shall operate except upon the conditions mentioned therein, clearly applies to every bus. We see that not only the language of the law but the very purpose for which it was enacted compels the construction that it is intended to apply to all such busses operated in cities, without regard to whether they had or had not received a prior city license.

It is further urged that this statute, relating only to busses which charge fifteen cents or less, discriminates between them and busses charging a higher rate, and that there is no reasonable ground for the statutory discrimination; that the statute permits a bond to be required for the safety not only of the passengers but the public, when like provisions are not made with reference to other vehicles operated for hire, and that the statute imposes a tax upon the jitney which is not imposed upon other vehicles carrying passengers for hire, and that these discriminations are illegal and in violation of the defendant’s constitutional rights.

Many circumstances exist which place the jitney in a different class from the motor vehicle which carries passengers by the hour, or from one fixed place to another. The jitney, by reason of its low fare and the manner of its operation, comes in direct competition with the street cars, which are common carriers and require a certificate of convenience and necessity. The jitney, by moving rapidly from place to place upon either side of the street, in picking up passengers in competition with the street cars or other jitneys, presents a menace to its passengers and the people upon the street which is greater than that from the ordinary cab or vehicle; and other reasons may have seemed to the Legislature to require that these busses be put in a class by themselves. We cannot say that the classification is unreasonable; upon the contraiy, it seems reasonable.

We conclude, therefore, that the statute in question is valid and prevents the operation of the appellant’s bus until he complies with its terms. The injunction was, therefore, properly granted, and the order is affirmed, with costs.

All concurred, except Woodward, J., not voting.

Order affirmed, with ten dollars costs and disbursements.  