the benefit of laborers and materialmen on terms that would make him liable for 25 per cent. above the contract price. The court held that the act there in question was not justifiable by the police power, and was violative of constitutional provisions pointed

out.

We fail to see the pertinency of these cases to the one at bar, which involves the right to regulate a common or public carrier in respect of the use of public streets.

[7] It is too clear for extended discussion that it was competent for the Legislature under the police power to regulate the use of the streets and public places by jitney operators, who, as common carriers, have no vested right to use the same without complying with a requirement as to obtaining a permit or license. The right to make such use is a franchise, to be withheld or granted as the Legislature may see fit. Dill. Mun. Corp. 88 1210, 1229; Fifth Ave. Coach Co. v. New York, 194 N. Y. 19, 86 N. E. 824, 21 L. R. A. (N. S.) 744, 16 Ann. Cas. 695. Further, the

with conditions in our large cities that the comparatively recent introduction of this class of vehicle, commonly known as the 'jitney,' for the carriage of passengers on the public streets, for a charge closely approximating that made on street cars, in view of the almost phenomenal growth of the institution, has made clearly apparent the necessity of some special regulations in order to reasonably provide for the comfort and safety of the public. It may well be that the board of supervisors concluded that, in view of the number of this class of public conveyances that were operated upon the public streets, especially upon the principal streets already occupied almost to overflowing during the hours of heaviest traffic by street cars and other vehicles, as well as by pedestrians at street crossings, the speed at which they would naturally be operated in order to make them pay on such a low rate of fare, and the probable lack of substantial financial responsibility on the part of very many undertaking to operate such vehicles, special regulations as to condition of car, * as well as security to protect against improper or negligent operation, were essential to the public safety. We certainly cannot say that the legislative body was not justified in so determining." [6] Counsel for the appellee relator treats his case against the act as made out if he be able to present some points of similarity in the jitney and the taxicab or privately operat-ecution of a bond for the indemnification of use or license may be conditioned on the exed automobile. But mathematical or logical those injured. So held in respect of motorexactness, in every aspect, in a division for classification is not always possible, and it is propelled vehicles in the recent cases of State not required in order to validity. "The best City of San Antonio (Tex. Civ. App.) 178 v. Howell (Wash.) 147 Pac. 1159, Greene v. that can be done is to keep within the clearly S. W. 6, Ex parte Dickey (W. Va.) 85 S. E. reasonable and practicable. That is accom- 781, and Ex parte Cardinal, supra. plished where there are such general characteristics of the members of the class as to subject to the objections urged by the appelreasonably call for special legislative treat-lee, and that therefore the lower court erred ment. That may be true, generally, and yet in its disposition of the case. Reversed and some such characteristics sometimes may be found to exist outside the boundaries of the remanded; all costs to be paid by the reclass." Mehlos v. Milwaukee, 156 Wis. 591, 146 N. W. 882, 51 L. R. A. (N. S.) 1009, Ann. Cas. 1915C, 1102; Central Lumber Co. v. MEMPHIS ST. RY. CO. v. RAPID TRANSIT South Dakota, 226 U. S. 157, 33 Sup. Ct. 66, 57 L. Ed. 164; Motlow v. State, supra; 6 R. C. L. p. 360, § 373.

We therefore hold that the segregation of the jitney automobile for regulation in the matter of the execution of an indemnity bond by its owner is not vicious or unreasonable class legislation.

We are of opinion that the statute is not

lator.

CO. et al.

(Supreme Court of Tennessee. Oct. 23, 1915.) 1. CONSTITUTIONAL LAW 46

CONSTITUTIONAL QUESTIONS-NECESSITY OF DECISION. The Supreme Court on appeal has jurisdiction and will determine the constitutionality of a law, although the cause can be decided upon other grounds, where the constitutional question is made in good faith and relied on in the case, since by Acts of 1907, c. 82, establishing and defining the powers of the Court of Civil Appeals, jurisdiction of that court is defeated by the presence of a constitutional question.

Law, Cent. Dig. §§ 43-45; Dec. Dig. ~46.]
[Ed. Note.-For other cases, see Constitutional

2. MUNICIPAL CORPORATIONS 703-REGU-
LATION OF JITNEYS.

Counsel for appellee commends to our consideration People v. Coolidge, 124 Mich. 664, 83 N. W. 594, 50 L. R. A. 493, 83 Am. St. Rep. 352, and Gibbs v. Tally, 133 Cal. 373, 65 Pac. 970, 60 L. R. A. 815. In the first of these cases it was held that an act, requiring all merchants who sell farm produce on a commission to execute a bond of $5,000 to faithfully per- Under Acts 1915, c. 60, making jitneys comform their contracts, was unwarranted class mon carriers, and requiring them, under erdilegislation, and that the act could find no sup-nances of the cities or towns, to file bonds and port in the police power, since there was noth-perform the conditions of the statute and ordiing in the business hostile to the comfort, health, morals, or even convenience of a community. The second case involved an effort on the part of the Legislature to require the owner of property, who contracts for the placing of a building thereon, to furnish a bond for

nances, a jitney company is altogether without right to do business on the streets of a city, where the city has passed no ordinance pursuant to the act, and the company has failed to procure any license or execute any bond under the act.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. 703.]

3. INJUNCTION 64-RIGHT TO INVOKE-EX-| the chancellor, and the complainant has apCLUSIVE FRANCHISE. pealed to this court.

The General Assembly of Tennessee, in 1915, by chapter 60, Acts of that year, undertook to regulate the jitney business in the Action by the Memphis Street Railway cities and towns of this state. This act deCompany against the Rapid Transit Compa-clared those operating such vehicles to be ny and others. From an order dismissing common carriers, and provided that the opthe bill on defendants' demurrer, complain-eration of these conveyances should be unant appeals. Reversed.

lawful in the incorporated cities or towns of this state without first obtaining a permit or license under ordinance from said city or town, and it was further provided that no such license should be issued unless the owner or operator filed with the clerk of the county court in the county in which the busiGREEN, J. This bill was filed by the ness was proposed to be done, a bond of not Memphis Street Railway Company to enjoin less than $5,000 to cover loss of life or inthe Rapid Transit Company and other de- jury to person or property inflicted by such fendants from operating jitneys on the streets carrier or caused by his negligence. It was of Memphis in competition with the com- further enacted that said license should emplainant's street cars. A demurrer was in- body such routes, terms, and conditions as terposed by defendants, and sustained by the city or town might elect to impose, pro

vided that no such permit or license should will not be considered or adjudged if the be granted which did not require the execu- case can be otherwise decided. We do not tion and filing of the bond mentioned above. Said act is set out in the margin of this opinion.1

ant to an injunction against defendants under the circumstances above detailed.

Although we appreciate the delicacy of passing on the validity of an act of the Legislature, such a duty is often imposed upon The complainant does not seek an injuncus, and we must not dodge our jurisdiction. tion here on the theory that it is possessed Where an act of the Legislature undertakes of an exclusive franchise to conduct the busito regulate a particular subject, and the ap-ness of common carrier of passengers on the plication of such an act is invoked by one streets of Memphis. The contention of comparty in a suit involving that subject, and plainant is that, having been granted a franthe validity of the act is questioned by the chise as such common carrier, it has a propother party, we think it proper that the stat- erty right that will entitle it to restrain any ute should be tested. Statutes are enacted to person or corporation from attempting to enmake the law plain and rights distinct. They gage in the business of common carrier of are intended to be administered, and it is passengers on the streets of Memphis, in comnot incumbent upon the courts to enter up- petition with complainant, without legislative on a difficult and doubtful investigation of or municipal authority. Complainant conthe rights of the parties under the common cedes that its franchise is not exclusive, in law-such rights being defined by a statute the sense that a similar franchise might not merely to avoid passing on the constitution- be granted to another to be exercised and enality of such a statute. joyed in the city of Memphis; but it maintains that its franchise is exclusive against all persons upon whom similar rights have not been conferred by legislative sanction.

So we think that there is a constitutional question in this case properly made, and that this court has appellate jurisdiction.

[2] Chapter 60, Acts of 1915, has been considered, and the act adjudged valid and constitutional, in the case of City of Memphis et al. v. State of Tennessee ex rel. S. B. Ryals, 179 S. W. 631, opinion in which has just been filed by Mr. Justice Williams. It is not, therefore, necessary to further discuss this question in this opinion.

The act being valid, there is little trouble as to its proper construction. We have heretofore intimated our conception of its meaning. Under it, no jitney may be operated in any city or town of the state of Tennessee, except under a license or permit from said city or town, issuing under an ordinance passed in conformity with the said statute, nor shall such permit or license be issued until the statutory bond has been executed and filed with the county court clerk. In other words, jitneys have no right to operate on the streets of any incorporated city or town in Tennessee until an ordinance has been passed providing for licenses or permits, and such permits or licenses have been secured, and they have no right then to operate until they have made bond as required by the

statute.

In the case before us the city of Memphis has passed no ordinance authorizing the is suance of licenses or permits to engage in this business, nor have the defendants undertaken to procure any such licenses, nor have they executed any bonds.

We think this contention is well founded and supported by the great body of authority. In Pomeroy's Equity Jurisprudence it

is said:

"An injunction is the appropriate remedy to protect a party in the enjoyment of an exclusive franchise against continuous encroachments. Such continuous encroachments constitute a private nuisance, which courts of equity will abate by injunction. The jurisdiction rests on the firm a ruinous multiplicity of suits, and to give adeand satisfactory ground of its necessity to avoid quate protection to the plaintiff's property in his franchise. To be entitled to relief, a plaintiff need only show that he is entitled to a franchise, and that there is continuous interference therewith by the defendant. It is not necessary that the plaintiff first establish his right at law." Pomeroy's Eq. Jur. § 583.

*

Further it is said:

*

"It is not necessary, 'to entitle the owner to relief in equity, that the franchise should be an exclusive franchise in the sense that the granting of another franchise to be exercised and enjoyed at the same place would be void.' The theory is 'that the defendant who has no franchise, is acting in violation of law in operating * without authority from the sovereign power, and that the owner of the franchise may complain of and restrain such illegal acts when they result in injury to his franchise, which, in the eye of the law, is property. As to the one who is invading his rights without legal sanction, the franchise is an exclusive franchise, although the owner of it might not be entitled to any protection as against the granting of a similar franchise to another.'" Pomeroy's Eq. Jur. § 584.

In dealing with a controversy between two electric light companies, one without a franchise, the Supreme Court of Oklahoma ob

served:

It is very clear, then, that defendants have no right whatever to do business on the streets of Memphis. They are lawbreakers, "When plaintiff accepted its franchise, it did subject to criminal prosecution, operating in so subject to the power of the municipality to direct violation of the statute of this state. grant other persons or corporations similar fran[3] These conclusions upon the statute be- chises, and with the knowledge that it might be ing reached, many of the questions presented chise with others exercising similar rights. If, compelled to exercise its rights under its franby the demurrer of defendants as to their by the competition of rival companies to whom common-law rights are eliminated from fur- the use of the streets and public grounds has ther consideration. The status of defendants rendered unable to discharge the obligations of been granted by the municipality, plaintiff is is fixed by the act. There remains, however, its contract to furnish the city and its inhabthe question as to the right of the complain-itants with light and power at stipulated prices,

of his constant attendance at the ferry, and of the due and speedy transportation over it of all persons and property desired to be transported, and to secure these and other stringent duties required of him he is placed under heavy liabilities, civil and criminal, for their performance, all of which is necessary for the public convenience, and as a remuneration for his services and liabilities he is allowed a fixed rate of ferriage. The right secured to the licensee is a legal right, created by public law, and not to be infringed except by the authority of the state itself; and such right would be of no avail, unless the party holding it is protected by law in its enjoyment. Indeed, it is a maxim of law that there is no right without a remedy, for 'whensoever the law giveth any right,' says Coke, 'it also giveth a remedy.' Coke on Litt. 56. The ferry right of appellant should have secured to him the tolls lost to him by the infringement of his right by the defendants, and they should make him whole for the damages that he has sustained, to be measured by the amount of tolls diverted." McInnis v. Pace, 78 Miss. 550, 29 South. 835.

except at a financial loss to it, plaintiff cannot | him, which impose upon him the duties of keepcomplain, for it must be held to have contem- ing a proper and safe boat and equipments, and plated such condition might arise, and to have agreed thereto when it accepted the franchise; but such cannot be said of the defendant, who unlawfully occupies the streets and public grounds of the city in competition with plaintiff. By its unlawful acts defendant can and will take from plaintiff a portion of its business. At the same time, defendant is under no obligation to the city or its inhabitants, and is all the while maintaining upon the streets and public grounds of the city a public nuisance, and the loss plaintiff sustains is to defendant its fruits from its violation of the law. By these unlawful acts of defendant, plaintiff may be rendered financially unable to comply with the obligations of its contract, and may be subjected to suits for damages, mandamus proceedings to enforce the performance of its contract, or an action to forfeit its franchise. Defendant does not undertake to compete with plaintiff for the business of the city and its inhabitants by furnishing to them light and power other than by the use of the streets and alleys. Its right to sell light and power is not dependent upon any franchise, but its right to use the streets and public grounds of the city for that purpose does depend upon the consent of the city; and, when it uses the streets without that consent, it is not only guilty of maintaining a public nuisance, but also inflicts upon plaintiff a special injury by its unlawful act, which may be restrained." Bartlesville E. L. & P. Co. v. Bartlesville I. R. Company, 26 Okl. 457, 109 Pac. 229, 29 L. R. A. (N. S.) 81.

Other ferry cases are Patterson v. Wollmann, 5 N. D. 608, 69 N. W. 1040, 33 L. R. A. 537; Green v. Ivey, 45 Fla. 338, 33 South. 711; Tugwell v. Ferry Co., 74 Tex. 480, 9 S. W. 120, 13 S. W. 654. All these cases sustain the views expressed in the foregoing quotations, and many other cases in which the same doctrine is recognized are collected

In a similar case the New Jersey court in a note to Bartlesville Elec. L. & Power said:

"Legislative grants of franchises of the nature claimed by complainant, whether granted by special * privileges which are necessarily exclusive in their nature as against all persons upon whom similar rights have not been conferred, for any attempted exercise of such rights, without legislative sanction, is not only an unwarranted usurpation of power, but operates as a direct invasion of the private property rights of those upon whom the franchises have been. Raritan & Delaware Bay R. R. Co. v. Delaware & Raritan Canal Co., 18 N. J. Eq. (3 C. E. Gr.) 546, 569; Penn. R.' R. Co. v. Nat. R. R. Co., 23 N. J. Eq. (8 C. E. Gr.) 441, 447; Jersey City Gas Co. v. Dwight, 29 N. J. Eq. (2 Stew.) 242, 250; Elizabethtown Gas Co. v. Green, 46 N. J. Eq. (1 Dick.) 118, 124 [18 Atl. 844]. It follows that, if complainant is at this time entitled to exercise in the disputed territory the privileges set forth in the legislative act referred to, and defendant, as claimed, enjoys no legislative sanction for the conduct sought to be enjoined, complainant will be entitled to the relief prayed for." Millville Gas L. Co. v. Vineland L. & P. Co., 72 N. J. Eq. 305, 65 Atl. 504.

The same question has often arisen with reference to ferries, and the courts have awarded injunction against the operation of unlicensed ferries at the suit of the ferryman legally authorized to conduct his busi

ness.

Co. v. Bartlesville I. R. Co., reported in 29
L. R. A. (N. S.) 77.

We are unable to follow the effort of learn

ed counsel for the defendants to distinguish the cases from which we have quoted from the case here presented. We think the foregoing authorities are sound and should control this controversy.

When a business may not be conducted as a matter of common right, but legislative authority is necessary, such authority, when conferred, is exclusive against all persons not endowed with like authority. Such rights, so bestowed by law, may not be infringed, except by authority of the state, and will be protected by injunction against unlawful invasion.

[4] As a matter of course, the observation just made is only applicable to clear cases, as the case before us. If the franchise or license of a complainant was doubtful, an injunction would not be awarded to protect it, nor could the validity of a license or franchise possessed by a competing defendant be questioned, and its exercise restrained, in proceedings of this character. GenevaSeneca Electric Co. v. Economic Power & Const. Co., 136 App. Div. 219, 120 N. Y. Supp.

In one of these cases the Supreme Court of 926; Coffeyville Min. & Gas Co. v. Citizens' Mississippi said:

"A public ferry cannot be erected and operated in this state without a special license therefor, and such license bestows upon the licensee the exclusive right of such ferry-exclusive as to all persons, except that the board of supervisors may establish as many ferries as the public convenience may require at the same or adjacent places of crossing. Every such licensee, however, is required to give bond with security for

Natural Gas & Min. Co., 55 Kan. 173, 40 Pac. 326; Market St. Ry. Co. v. Pen. Ry. Co., 51 Cal. 583. We are in full accord with the views expressed in these and like cases. Questions upon the regularity of a charter, the validity of a franchise, and the like, are to be determined upon suit of the Attorney General or other constituted authority, and