
    Allen v. City of Cincinnati et al.
    (Decided May 5, 1930.)
    
      Messrs. Goebel, Dock & Goebel, for plaintiff.
    
      Mr. John D. Ellis, city solicitor, and Mr. Milton IT. Schmidt, for defendants.
   Hamilton, J.

This case is here on appeal from the decision of the trial court overruling a demurrer to the amended petition of the plaintiff, Arthur Allen. The defendants, not desiring to plead further, appeal to this court from that decision.

Plaintiff seeks by this action to enjoin the enforcement, as against him and others similarly situated, of an ordinance of the city of Cincinnati numbered Sections 61-1 to 65-48, and Sections 65a-l to 65a-28, of the code of ordinances of said city.

The ordinance is not attached to the amended petition, and it may be that the failure to so set up the ordinance would in effect constitute a failure to plead a cause of action. However, the amended petition pleads that said ordinance “by Section 65b-l attempts to classify and define an automobile for hire, such as owned and operated by the plaintiff and herein described as a public vehicle, and by Section 65-a attempts to fix a fee, termed a license fee, which must be paid by the owner of such vehicle, in the sum of $18.00 for each such automobile, before being permitted to operate the same in the City of Cincinnati ; ’ ’ that said ordinance ‘ ‘ provides that such automobile shall only be operated by a driver licensed by the City of Cincinnati; and further provides for the licensing of drivers and the payment of fees by such drivers for such licenses.”

We will therefore consider the question involved in these allegations.

The plaintiff claims that the classification of his automobiles under said ordinance as public vehicles is illegal and unjust, unconstitutional and void, for the reason that said automobiles are not public vehicles, or common carriers, but are strictly private .livery vehicles, or used in each instance as a private contract carrier; that the plaintiff does not hold himself out to the public indiscriminately to give service to the utmost of his capacity to all who may apply-for service in said vehicles; that at all times he re-serves the right at his discretion to hire said automobiles or refuse to hire them.

The amended petition further challenges the ordinance as applied to him as not being within the police power of the city to enact and enforce.

The prayer of the petition is that the ordinance be declared unconstitutional and void as to him and others similarly situated. We presume he desires injunctive relief.

That general regulatory powers are conferred upon the city to control vehicles in the use of its- streets for business purposes cannot be questioned. This power has been so frequently declared by the courts that it is not necessary to cite authorities.

It is also the law that it is not within the police power of a municipality to control by license private business. We take it from the-allegations of the petition that the plaintiff claims to be within the protection reserved in the Constitution of private businesses as against public regulation.

The question then is: Do the allegations of the amended petition bring the plaintiff in the hiring of his automobiles within the scope of exclusive private business or private carrier under private contract?

The case of Hissem v. Guran, 112 Ohio St., 59, 146 N. E., 808, 809, is cited by plaintiff as an authority for his position that he is not subject to regulation under the ordinance. This case was decided on the question whether or not a hauler of milk over a certain route through arrangement by the transporter with the farmers, between fixed termini, was within the Freeman-Collister Motor Transportation Act, requiring it to have a certificate of necessity, and the case, therefore, does not involve the proposition presented here. However, the opinion does present what appears to be the distinguishing test of public regulation of motor vehicles. In the opinion, Chief Justice Marshall makes this statement: “There does not therefore, upon principle, appear to be any sound basis for the exercise of public regulation of motor vehicles not dedicated to public use.” The converse of this proposition would be that there is sound basis for the exercise of public regulation of motor vehicles dedicated to public use. The further holding in this case is to the effect that a private carrier cannot be made a public carrier by legislative fiat.

So that, while the ordinance in question in all probability brings the plaintiff’s automobiles into the class subject to licenses as public vehicles, this would not make it so in fact, and we are in the last analysis required to go to the facts of the case, as alleged, in determining the question. Since the case is here on a demurrer to the amended petition, and since all the allegations of the amended petition well pleaded must be considered as true, we turn to the amended petition to ascertain whether' under the facts alleged the plaintiff’s automobiles are dedicated to public use.

We quote fully from the amended petition the method and manner of use of the automobiles. These facts as alleged are as follows:

“Plaintiff says that he is the owner of-automobiles which he owns and keeps for his own uses, and also hires the same out to certain persons for their individual use; that said automobiles bear no marks or characteristics of any kind that would distinguish them from any privately owned automobiles, and are not different in type, appearance or character than other privately owned automobiles.
‘1 That when such automobiles are hired by others, such hiring is done under an arrangement or agreement made in advance by and between the plaintiff and the person who hires the same. All such agreements are made in person at the plaintiff’s place of business, or by telephone or letter; that the plaintiff has no fixed schedule of rates, and the contract made in each case varies and depends upon the particular circumstances surrounding each individual hiring; that said automobiles are hired out for a period of hours, or by the day, or by the trip, and the basis upon which they are hired is agreed upon in advance. At no time does the rate exceed $3.00 per hour; that in some instances a flat rate is agreed upon for a particular trip. The hirings made by the people who use plaintiff’s automobiles are for the purpose of attending formal affairs, making special trips, sometimes to other points or cities, and, in general, such use as is made by the individual owner of his own automobile, but in each case the amount paid for the use of the automobile depends upon the distance, and length of time the automobile is used. Said automobiles are only hired out to the regular customers of the plaintiff, which include families living in and about the place of business of plaintiff, located in what is known as the suburb of Clifton in the city of Cincinnati.
“Plaintiff does not hire out his said automobiles to every one who may apply indiscriminately or indifferently, but such hiring is limited to the particular class of customers of the plaintiff or the persons whom he knows and always upon contract made in advance or understood by the regular customers.
“Said automobiles are at no time used on the streets of the City of Cincinnati for the purpose of soliciting business; they do not use or occupy any of the public taxicab stands; they do not wait for passengers on the streets, at the depots, hotels, taxicab stands, or any other public place or highway in and about the city of Cincinnati; that such automobiles when not in use are kept in the private garage of the plaintiff and operated strictly to and from said garage, and returned to the garage immediately upon being discharged by the hirer.
“That these automobiles when hired and in operation are under the absolute control and domination of the hirer, who directs the driver where to proceed, over what route or by what street, when and where to stop, how long to stop, and the hirer may send the vehicle away and order its' return, and in every respect has the same full and complete control of the automobile, to the exclusion of all other persons, in the same manner and to the same extent that any private owner controls and directs his own individual automobile and his personally employed chauffeur.
“That said automobiles are not used in making what are classed as taxicab trips, or for any purpose which is similar to that of a taxicab business.”

Analyzing these allegations, we are of opinion that the service rendered and the manner in which the service is rendered show that the automobiles are in fact dedicated to public use, and are therefore subject to regulation.

Another proposition argued in the brief is that the license fee-attempted to be levied by the ordinance in question is a tax for revenue, and that the city does not possess the power to levy such tax under the guise of a license. It is true that a license becomes a tax, and is not enforceable if it goes further than the necessary expense of issuing the license and cost of regulation. However, there is nothing in the amended petition bringing this question before us. All the amended petition states with reference to the license is that the ordinance “by Section 65-a attempts to fix a fee, termed a license fee, which must be paid by the owner of such vehicle, in the sum of $18.00 for each such automobile, before being permitted to operate the same in the City of Cincinnati.” There is no allegation that this sum of $18 per automobile is in excess of the cost of issuing the license and the cost of regulation under the ordinance.

■ Our conclusion is that under the allegations of the amended petition the ordinance is not unconstitutional and void as against this plaintiff. :

The amended petition not alleging a cause of action, the demurrer thereto is sustained, and the amended petition dismissed.

Demurrer sustained.

Cushing, P. J., and Ross, J., concur.  