179 S. W. 1193;

Tex. Crim. Rep. 1, Dallas v. Gill (1917) - Tex. Civ. App. -, 199 S. W. 1144; Ex parte Parr (1918) 82 Tex. Crim. Rep. 525, 200 S. W. 404.

Washington.-State v. Seattle Taxicab & Transfer Co. (1916) 90 Wash. 416, 156 Pac. 837; Allen v. Bellingham (1917) 95 Wash. 12, 163 Pac. 18; Hadfield v. Lundin (1917) 98 Wash. 657, L.R.A.1918B, 909, 168 Pac. 516, Ann. Cas. 1918C, 942.

West Virginia.-Ex parte Dickey (1915) 76 W. Va. 576, L.R.A.1915F, 840, P.U.R.1915E, 93, 85 S. E. 781.

Nor is the power vested in the city treasurer, to require a further surety or sureties upon a bond after determining that the existing sureties are insufficient, open to objection. Com. v. Slocum (1918) 230 Mass. 180, 119 N. E. 687.

A statute requiring a bond as condition to carrying passengers in a motor-propelled vehicle in a city applies, although the vehicles have no fixed rate and charge different fares for different distances, and sometimes carry passengers across the boundary lines of the city. Puget Sound Traction, Light & P. Co. v. Grassmeyer (1918) 102 Wash. 482, L.R.A.1918F, 469, 173 Pac. 504.

In Com. v. Theberge (Mass.) supra, it was held that a town which had duly accepted chap. 293, Statutes 1916, which authorizes the licensing by cities and towns of motor vehicles carrying passengers for hire, may adopt a by-law providing that a bond shall be furnished by jitney operators who run their vehicles through the town, but do not solicit trade, or take on or let off passengers within the town. The court stated: "The constitutionality of the statute

conferring upon cities and towns the power to license and regulate the transportation by motor vehicles of passengers for hire is no longer open to question. . . . The only new element in the present case is the application of the by-law to persons transporting passengers for hire through the town, and not merely within it. Ordinarily the municipalities, in regulating motor vehicles which run 'be

tween fixed and regular termini,' will deal mostly with 'jitneys' doing a local business. But § 2 of the statute provides that 'nothing in this act shall be construed as requiring the licensee to file more than one bond, which shall be filed in any city or town in which a license has been taken out,' and § 1 expressly limits the authority of the municipalities to the operation of such vehicles 'within their own limits.' It seems to us that the necessary implication from this language is that the legislature intended to make 'jitneys' which pass through a town amenable to control, as well as those whose 'fixed and regular termini' are within the municipality. . . . One purpose of the statute, if not the main one, was the protection from injury of persons properly using the public ways; and the legislature well may have considered that one frequent and serious cause of danger is the reckless or careless automobilist rushing through country towns. The town did not exceed the power given to it by the statute in adopting the regulation in question."

II. As creating a civil liability. A provision that as a prerequisite for a license to operate a jitney, there be filed with the city "an indemnity bond or policy of insurance in the sum of $5,000, conditioned that the licensee shall pay any judgment of court finally rendered against him etc., to the extent of $2,500, on account of injuries to or death of any person or injury to the property of another, and to the extent of $5,000 for like injuries occurring in one accident to more than one person, caused by the negligence of such licensee, etc., and further conditioned to hold the city harmless from any and all claims, etc., resulting to it from the granting of such license,"is a reasonable regulation, and is not void or unconstitutional as creating or attempting to create in behalf of any person any liability against the licensee or his surety. Ex parte Bogle (1915) 78 Tex. Crim. Rep. 1, 179 S. W. 1193. The court stated that neither these sections, nor the ordinance as a whole, as it understood it, in any way

created or attempted to create in behalf of any person any liability against the licensee or his bondsmen, but that it merely provided, as one of the reasonable regulations of the licensee, that he shall provide by such bond or indemnity a means to satisfy the judgment for loss to one who may be damaged by him, finally rendered by a court; that it in no way prescribes any contingency under which the licensee shall be liable to any person for any negligence whatever committed by him, or other action by him.

It was contended in Willis v. Ft. Smith (1916) 121 Ark. 606, 182 S. W. 275, that the requirement of the execution of a bond for the payment of judgments is a restriction the municipality is not authorized to impose, it creating in effect a civil liability. But the court stated that such contention is without merit, as the requirement creates no liability where none existed under the law, nor was it intended to do so, but only to secure the payment of damages for injury from the operation of instrumentalities that were so dangerous as to require the prescribed regulation, and appeared to the city council so irresponsible as to make necessary the restriction for the security required. III. As depriving one of property without due process of law.

A statute requiring a jitney driver to furnish a bond to indemnify against loss or injury through negligence is not, where such jitney driver is unable to furnish a bond, unconstitutional as depriving him of his property without due process of law, as the requiring of such bond is a valid exercise of the police power. Nolen v. Riechman (1915) 225 Fed. 812.

So, a statute which requires operators of jitney busses to furnish an indemnity bond in the sum of $2,000 to protect any person who may receive bodily injuries or suffer death by reason of the negligence or misconduct on the part of the driver or operator of the machine is not invalid as depriving such jitney owner of his property without due process of law. Huston v. Des Moines (1916) 176 Iowa, 455, 156 N. W. 883.

IV. As discriminatory class legislation. An ordinance requiring jitney drivers to furnish bonds is not invalid as discriminatory class legislation, or as denying to the operators of jitneys equal protection of the law, because not made to apply to street cars and taxicabs or other motor vehicles used and kept for hire. Nolen v. Riechman (1915) 225 Fed. 812; Willis v. Ft. Smith (1916) 121 Ark. 606, 182 S. W. 275; Hazleton v. Atlanta (1916) 144 Ga. 775, 87 S. E. 1043; West v. Asbury Park (1916) 89 N. J. L. 402, 99 Atl. 190; Memphis v. State (1915) 133 Tenn. 83, L.R.A.1916B, 1151, P.U.R. 1916A, 825, 179 S. W. 631, Ann. Cas. 1917C, 1056; Ex parte Sullivan (1915) 77 Tex. Crim. Rep. 72, P.U.R.1915E, 441, 178 S. W. 537; State v. Seattle Taxicab & Transfer Co. (1916) 90 Wash. 416, 156 Pac. 837; State v. Ferry Line Auto Bus Co. (1916) 93 Wash. 614, 161 Pac. 467.

Nor is an ordinance requiring common carriers of passengers in city streets to furnish a bond in the sum of $5,000 for each vehicle operated invalid as discriminating against jitneys in favor of street cars. Lutz v. New Orleans (1916) 235 Fed. 978, affirmed in (1916) 150 C. C. A. 654, 237 Fed. 1018. The court stated that, while it may be easier for the street cars to comply with the ordinance than for the plaintiff to do so, and by a mathematical calculation it may be shown that the security required is more for each passenger carried in the case of jitneys, these facts would not make the provision so unequal as to deprive the plaintiffs of their constitutional rights in this regard.

The court in the Willis Case (1916) 121 Ark. 606, 182 S. W. 275, supra, said that the classification bears a just relation to the purpose intended to be effected and classification made.

And in Nolen v. Riechman (Fed.) supra, the court said: "It may well have been that the legislature had in mind, when it enacted the statute in question, that those engaging in the business which the act sought to regulate operated vehicles susceptible of becoming dangerous to the public by the manner of their operation; that

they had no fixed track upon which to run and were at liberty to move over the entire surface of the street; that they had no schedule; that pedestrians had no way of knowing when and where to expect them; that they increased the danger to persons using the street, whether as pedestrians or while boarding or leaving street cars or other vehicles; that they stopped at street crossings, or along the curb between street crossings, to receive and discharge passengers; that very often the driver owns the machine, or at least an equity in it; that many of them are financially irresponsible; that the patrons of such vehicles are composed of men, women, and children; that the vehicles, in the hands of careless drivers, might rush through crowded streets at a dangerous rate of speed, probably without any financial responsibility to their patrons or others upon whom damage might be inflicted by such machines because of the negligence of the operators. Furthermore, a substantial distinction between the property of the owner of a street railway and that of the owner of a 'jitney' should not escape attention. The former consists of a fixed plant, including rolling stock, which is operative only along tracks provided for the purpose, while that of the latter is fugitive in character, since it is operative through its own power upon any portion of the surface of an ordinary highway. It results that the street railway property is, in its nature, an indemnity against the consequences of negligence, and so is at least an equivalent for the bond of indemnity which is here resisted by the owner of the 'jitney.'" And the court further added: "There is another distinction that should be noted; it concerns the taxicab. While the 'jitney' and the taxi-' cab are physically the same, yet the services they perform materially differ. The service of the one is designed to accommodate persons traveling along distinct routes and at a rate of fare common to all; but the service of the other is intended for the accommodation of persons whose destinations involve varying distances

and lines of travel, and presumably at varying prices. The two kinds of service would signify substantial difference in numbers of vehicles needed to meet the respective demands; and so the dangers attending the operation of the 'jitney' presumably would materially exceed those arising in the taxicab service. These considerations are independent of the question argued by counsel whether the taxicab is not embraced within the terms of the statute a question we do not decide."

V. Right to require bond of surety company.

The requirement that a bond be furnished is not invalid because restricted to bonds of surety companies. Lutz v. New Orleans (1916) 235 Fed. 978, affirmed in (1916) 150 C. C. A. 654, 237 Fed. 1018; Re Cardinal (1915) 170 Cal. 519, L.R.A.1915F, 850, P.U.R. 1915E, 282, 150 Pac. 348; State v. Seattle Taxicab & Transfer Co. (1916) 90 Wash. 416, 156 Pac. 837; State v. Ferry Line Auto Bus Co. (1916) 93 Wash. 614, 161 Pac. 467.

And especially where it is not shown that the surety company exacts exorbitant fees, or that personal surety could be secured on a better basis, or at all. Lutz v. New Orleans (Fed.) supra.

That the provision of an ordinance regulating jitneys requiring a surety bond may necessitate the incurrence of an expense which the applicants for license may not be able to bear, and that therefore they will be required to abandon the operation of their motor busses, is not of itself sufficient to make the ordinance unreasonable or invalid. Auto Transit Co. v. Ft. Worth (1915) Tex. Civ. App.

P.U.R.1916C, 565, 182 S. W. 685. Nor is it invalid as prohibitive because of the fact that persons of insufficient financial ability to meet losses are refused bonds by the surety company; and especially where it is shown that persons of financial ability have no difficulty in procuring them. State v. Seattle Taxicab & Transfer Co. (1916) 90 Wash. 416, 156 Pac. 837, supra.

In New Orleans v. Le Blanc (1915) 139 La. 113, 71 So. 248, an ordinance was upheld which provided, inter alia, that a bond to be furnished by a jitney operator should be executed by a surety company, and should always be maintained at the original amount.

There is no right to use a public highway in the operation of the business of a common carrier for private gain without consent of the state, and therefore no constitutional right is impaired by refusing to permit such use without the filing of an indemnity policy, although no insurer will issue such policy. Hadfield Lundin

V.

(1917) 98 Wash. 657, L.R.A.1918B, 909, 168 Pac. 516, Ann. Cas. 1918C, 942.

But in Jitney Bus Asso. v. WilkesBarre (1917) 256 Pa. 462, 100 Atl. 954,

an

ordinance which restricted the bond to be furnished by the operator of a jitney to one furnished by a surety company was held to be unreasonable where it was difficult to procure a bond from a surety company. The court said: "The municipality is entitled to require good and sufficient security, but beyond that it should not go. The terms of the ordinance in this respect would forbid the deposit of cash, or of a certified check, or municipal bonds as security by the applicant for a permit, or the acceptance as sureties upon his bond of individual freeholders of unquestioned financial responsibility. We know of no other instance in which, where security is required by law to be given, an attempt has been made to confine such security to surety companies, to the exclusion of solvent and responsible personal sureties."

VI. As affected by amount or extent of liability.

a. In general.

The requirement of a municipal ordinance that the licensee of a motor vehicle used for the transportation of passengers for hire shall furnish a bond in the penal sum of $1,000 for the benefit of those who may be injured by the carelessness of the licensee or his employees is not unreasonable. Com.

v. Slocum (1918) 230 Mass. 180, 119 N. E. 687.

And a statute requiring jitney operators to furnish an indemnity bond in the sum of $2,000 was held in Huston v. Des Moines (1916) 176 Iowa, 455, 156 N. W. 883, not to be invalid as requiring a bond in a prohibitive amount. The court stated: "If a bond may be required at all for the purpose of indemnifying the public,which, of course, means the individuals going to make up that public, else it means nothing,-it is perfectly apparent that the bond, rather than being excessive, is, to say the least, inadequate in amount as compared with the damage which may be done any day through the carelessness of an op erator. If it results in keeping irresponsible people off the street, it is not an unmixed evil. That it will have a tendency to make drivers more careful in the operation of their machines needs no argument, and that it may be beneficial to the owner or operator himself is not beyond the pale of reason. Many private individuals carry automobile insurance, believing it to be a good business investment, and this has not been productive of accident. But, aside from all speculations upon the point, it is clear that, if any bond may be required for the purposes indicated, the one fixed by the council is not unreasonable."

A bond of $2,500 was held in Com. v. Theberge (1918) 231 Mass. 386, 121 N. E. 30, not to be unreasonable in amount in view of the fact that it was designed to furnish security for injury to personal property, or damages for death, caused by the negligent or unlawful act of the principal named in the bond or his agent or servant.

So, too, an ordinance requiring jitney operators to furnish an indemnity bond in the sum of $5,000 was held not to be invalid as requiring the furnishing of a bond in an unreasonable and oppressive amount. Hazleton v. Atlanta (1916) 144 Ga. 775, 87 S. E. 1043.

Also the requirement of a municipal ordinance regulating the operation of jitney busses, that as a condition of the granting of a license an indemnity

bond be furnished in the sum of $5,000, was held in New Orleans v. Le Blanc (1915) 139 La. 113, 71 So. 248, not to be unreasonable, especially in view of the absence of any evidence to rebut the presumption of the existence of conditions which required the enactment of such ordinance and its application to the jitney nuisance.

Nor is the requirement that an applicant for a license to operate a jitney shall furnish a bond in the sum of $10,000 unreasonable. Ex parte Parr (1918) 82 Tex. Crim. Rep. 525, 200 S. W. 404.

b. Continuing liability.

An ordinance requiring a jitney-bus operator to furnish bond, which provides that the obligor shall continue to be liable for other and additional amounts without limit, after recovery to the amount of the penal sum in the bond, is clearly unreasonable, as no surety company could possibly be asked to undertake such an indefinite and unlimited responsibility. Jitney

Bus Asso. v. Wilkes-Barre (1917) 256 Pa. 462, 100 Atl. 954.

And see the reported case (STATE EX REL. STEPHENSON V. DILLON, ante, 227.

VII. Inability to procure bond. See also supra, V.

Inability to procure a bond does not relieve the operator of a jitney bus from the provision of the statute requiring a bond as a condition to the operation of such vehicle. Puget Sound Traction, Light & P. Co. v. Grassmeyer (1918) 102 Wash. 482, L.R.A.1918F, 469, 173 Pac. 504.

The courts cannot, when one desiring to operate a jitney bus on the public highway is unable to secure the bond prescribed by the legislature as a condition to the transaction of such business, permit the substitution of a different bond and require the issuance of a license based upon such substituted bond. Hadfield V. Lundin (1917) 98 Wash. 657, L.R.A.1918B, 909, 168 Pac. 516, Ann. Cas. 1918C, 942. J. H. B.