
    ORDINANCES — HACKS AND OMNIBUSES — DEPOTS.
    [Sandusky Circuit Court,
    December, 15, 1899.]
    Parker, Haynes and Hull, JJ,
    Charles Moerder v. Fremont (City).
    1. Presumption in Favor of Ordinances.
    The presumption is in favor of an ordinance passed by a municipal corporation. It is for the council to say, in the first instance, whether an ordinance is necessary or not, and the court will not find such ordinance unreasonable unless it clearly appears to be so.
    2. Whether Ordinance is Reasonable — Question for Court.
    Whether an ordinance passed by a municipal corporation, under a general grant of authority, is reasonable or not is a proper subject for judicial inquiry and is a question for the court; and if the ordinance is found to be unreasonable, it may be declared invalid.
    3. Paragraph 10, Sec. 1692, Rev. Stat., Governs such Ordinances.
    Under paragraph 10, sec. 1692, Rev. Stat., conferring power “to regulate the use of carts, drays, wagons, hackney coaches, omnibuses and every description of carriages which may be kept for hire, or livery stables,” a municipality has power to pass a proper ordinance to regulate the running and use of hacks and omnibus.
    4. May Prohibit Soliciting on Depot Grounds.
    An ordinance prohibiting the soliciting of patronage upon the platform of a depot or grounds round about it, is a reasonable and proper regulation under paragraph 10, sec. 1692, Rev. Stat., and is not an invasion of public rights or in restraint of trade.
    Error to the Court of Common Pleas oi Sandusky county.
   Hull, J.

This case comes into this court on error to the court of common pleas.

Charles Moerder, the plaintiff In error, was arrested and tried before the mayor of Fremont on the charge of violating a certain ordinance of said city which prohibited hackmen from soliciting patronage on any railroad platform or ground used for railroad purposes. He was found guilty and sentenced to pay a fine.

The motion for a new trial was overruled and the case taken to the common pleas court on error, and the judgment of the mayor there affirmed.

The question made here is that the ordinance under which Moerder was arrested and prosecuted and convicted is unreasonable, and in restraint of trade.

The ordinance reads as follows : “That it shall be unlawful for any person, within the limits of this city, as a runner for the benefit of himself or another, on any railroad platform or ground used for railroad purposes, or any railroad depot or building, to ask, solicit or engage any person to take passage in any omnibus, carriage or conveyance or to recommend any particular hotel, tavern or house of public entertainment, or to solicit or ask passengers to repair to any such hotel or' public house named by such runner, and any person violating the provisions of this section, shall, upon conviction thereof,'be fined in any sum not exceeding twenty dollars.”

The plaintiff in error was charged with violating this ordinance, in an affidavit which was filed before the mayor and which charged that Moerder, “being then and there a hack driver and acting as a runner in the employ of and for the benefit of Bisnette and Bonnell, a certain livery and hack firm in the said city, did unlawfully on the platform and grounds owned and used for railroad purposes by the Lake Shore and Michigan Southern Railway Company, at their passenger depot, within the limits of said city, ask and solicit certain passengers and persons to take passage in the hack or conveyance so being driven and used by him for said Bisnette and Bonnell,” and, as I have said, upon this charge he was found guilty.

It is claimed that this ordinance is unreasonable, in that it prohibits a hackman from soliciting patronage for himself in and about a railroad depot, railroad platform or grounds. It is claimed that this is a right which the owner or driver of a hack has in plying his trade, and that -to interfere with it in this manner is a restraint, and an unlawful restraint, of his trade and occupation, and that the ordinance is unreasonable and therefore invalid.

Under paragraph 10 of sec. 1692, Rev. Stat., villages and cities are empowered to regulate the use of carts, drays, hackney coaches, etc. The section reads as follows:

“In addition to the powers specifically granted in this title and subject to the exceptions and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of the same.”

Paragraph 10 reads as follows:

“To regulate the‘use of carts, drays, wagons, hackney coaches, omnibuses and every description of carriages which may be kept for hire, or livery stables.”

In our judgment, under this section of the statutes and this para-, graph, a municipality has the right and power to pass a proper ordinance' to regulate the running and use of hacks and omnibuses; and paragraph ten is the one under which this comes, and not paragraph one or paragraph three, as was suggested.

Having this power, the sole question made here is whether the power was exercised in a reasonable manner, by the enactment of this ordinance.

Whether an ordinance passed by a municipal corporation is reasonable or not is a 'proper subject for judicial consideration, and is a question addressed to the court, and if an ordinance is found by the court to be unreasonable, it will, for that reason, be found invalid.

I cite 46 Am. St. Rep., 390. The case is found in 138 Indiana, 339. The third paragraph of the syllabus is : “The reasonableness of a municipal ordinance is a proper subject for judiciaL inquiry, if enacted under a general grant of authority, not prescribing the manner of its exercise.”

Now it is claimed by counsel for plaintiff in error that this ordinance is unreasonable, and should have been so found by the courts below and should now be so found by this court. Quite a large number of cases are cited. One case that is especially relied upon by plaintiff in error is Thomas v. Hot Springs, 36 Am. Rep., 24, an Arkansas case. The syllabus is : “A city ordinance prohibited drumming and soliciting patronage for hotels, boarding houses, bath-houses, physicians, quacks and vendors •of nostrums: Held, void as to competent physicians; and so, it seems, as to hotels, boarding houses and bath-houses.”

In this case a person was prosecuted for soliciting patronage for a physician and the court says, toward the end of the opinion, on page 29: “ In this case appellant was charged and convicted for soliciting a patient to a physician, who was a graduate of medicine, and skilled, it is admitted, in his profession. It may be in bad taste, and a violation of the ethics of his profession, for a physician to employ a drummer to procure patients for him, but appellee had no legal power to make such drumming a crime, and punish it as such,” and the judgment was reversed for the reason that the ordinance was illegal and invalid and was in restraint of trade — the ordinance “prohibiting drumming” or soliciting patronage for hotels, etc., not in any particular place, or places, but generally throughout the city.

Ordinances similar to the one under consideration have been upheld in many states, and after an examination of the authorities we are of the opinion that this ordinance is not unreasonable, but is .a valid ordinance and within the power of the municipal corporation as conferred upon it b3r this statute which I have read.

The running and management of hacks and omnibuses has always been, to a greater or less extent, subject to the control of the provisions of ordinances passed by municipalities. A hack and omnibus is a public vehicle for the convenience df the public, and their owners and drivers exercise certain privileges , at any rate they have the use of and do use the streets of the municipality to a greater extent than private individuals. In many cities they are required to take out a license and pay a small fee therefor. The amount they may charge for their services is regulated in nearly all large cities. The places where hacks and such vehicles shall stand, when they are not being used, is provided for and regulated by ordinance in manjr cities.

The presumption is in favor of an ordinance passed by a municipal corporation. It is for the council to say, in the first instance, whether such an ordinance is necessary, whether the public interests require it, and the court will not find it to be unreasonable unless it^ clearly appears to-be so. Upon this proposition I cite 1st Dillon Municipal Corporations, sec. 327. He sa)^: “ Whether an ordinance be reasonable and consistent with the law or not is a question for the court and not for the jury.” In a foot-note, under this section, he quotes from a decision as follows: “ Where the municipal legislature has authority to act, it must be governed, not by our discretion, but by its own ; and we shall not be hasty in convicting them of being unreasonable in the exercise of it. The courts doubtless have the power to deny effect to a by-law obnoxious to the objection that it is unreasonable. It is, however, a power to be cautiously exercised, especially where the question is a practical one — for example, the length of time which ought to be allowed to vehicles to remain in the street, and as to which the city authorities, it is to be presumed, can judge better than the court.”

I cite on the proposition that it must clearly appear that the ordinance is unreasonable, White v. Kent, 11 Ohio St., 550; and read from 553

“ It is said, however, that the prohibition of this ordinance, though it might be necessary in a large and populous city, is unreasonable in such a city as Columbus. On this subject, much must be left to the discretion of the city council, and unless that discretion be exercised in a manner clearly unreasonable, so • as to infringe upon private rights, it is not within the province of courts to interfere. Columbus is one of the largest cities of the second class within the state, and the prohibition in question, especially in its application to sidewalks, may, for aught we can know, be eminently proper. It violates no private right; it does not forbid sales by auction, nor assume to regulate them in any other way than by prohibiting an invasion of the public rights. It is, therefore, not in restraint of trade.”

This ordinance in question prohibits the soliciting of patronage upon a platform of a depot or grounds round about it. The purpose, evidently, was to prevent disorder and disputes and contentions between proprietors, or managers of the different omnibuses and hacks and different hack lines in regard to travelers as they alighted from trains, and to prevent such a contention, as it appears from the record, arose in this case over a passenger; and it is a matter of common knowledge that those things are liable to arise out of the soliciting of patronage of people as soon as they alight from trains. As I said, there have been ordinances upheld in other states that went perhaps further than this one.' I cite Commonwealth v. Matthews, 122 Mass., 60. The first- paragraph of the syllabus-is : “ Under the General Statutes C. 19, sec. 14, which provides that the mayor and alderman of any city may make rules for the regulation of carriages, the mayor and alderman of the city of Boston may make a regulation that no person having charge of any hackney carriage, shall stand with it to solicit patronage in any place other than the place assigned to it.”

In our statute the power to regulate is given in the most general terms, as in the Massachusetts statute.

I call attention also to City of St. Paul v. Smith, 27 Minn., 364, 286, There the ordinance provided that hackmen should take the place at railroad stations assigned them by the police officer on duty at the stations no particular place was named, but they were put under the control and authority of the member of the police force at the railroad station at the-time. The court say, at the end of the opinion: “ The authority thus to assign places must necessarily be committed to some officer, and for obvious reasons it is very properly committed to the policeman on duty at the depot. As in other cases mentioned this authority should of course be exeicised with fairness to all concerned. The fact that the ground about the depots or stations where these ordinances are to be enforced is not the property of the city or public property of any kind, strictly speaking, is not important. The fact that it is commonly used b3r hackmen in their business for the purposes- mentioned in the ordinance, is sufficient.”

Greene & Greene and Kinney & O'Farrel, for plaintiff in error.

M. L. Shackleford, city solicitor, for defendant in error.

We think that these authorities and the general doctrine relating to this subject, as laid down by the courts, abundantly sustain the proposition that this ordinance of the city of Fremont was a reasonable and proper regulation and ordinance. Some of the cases cited by plaintiff in error are not applicable to this case. If the railroad company were complaining, it being the owner of the grounds, and if it had entered into a contract with a hack line permitting the use of its grounds for any consideration, a different question would arise, but that question does not arise in this case, and we express no opinion upon it. But we hold that this ordinance, so far as this plaintiff in error is concerned, is a reasonable regulation and provision enacted by the council of the city of Fremont, and was authorized by the statute of the state giving the city power to regulate the running and management of hacks.

For these reasons the judgment of the court of common pleas will be affirmed.  