PACKARD v. BANTON(1923)
3. We come then, to the question whether the statute assailed contravenes the provisions of the Fourteenth Amendment. That the selection of cities of the first class for the application of the regulations and the exclusion of all others is not an unreasonable and arbitrary classification does not admit of controversy. Hayes v. Missouri, 120 U.S. 68 , 7 Sup. Ct. 350. We cannot say that there are not reasons applicable to the streets of large cities-such as [264 U.S. 140, 144] their use by a great number of persons or the density and continuity of traffic-justifying measures to safeguard the public from dangers incident to the operation of motor vehicles which do not obtain in the case of the smaller communities.
The contention most pressed is that the act unreasonably and arbitrarily discriminates against those engaged in operating motor vehicles for hire in favor of persons operating such vehicles for their private ends, and in favor of street cars and motor omnibuses. If the state determines that the use of streets for private purposes in the usual and ordinary manner shall be preferred over their use by common carriers for hire, there is nothing in the Fourteenth Amendment to prevent. The streets belong to the public and are primarily for the use of the public in the ordinary way. Their use for the purposes of gain is special and extraordinary, and, generally at least, may be prohibited or conditioned as the Legislature deems proper. Neither is there substance in the complaint that street cars and omnibuses are not included in the requirements of the statute. The reason, appearing in the statute itself, for excluding them is that they are regulated by the Public Service Commission Laws, and this circumstance, if there were nothing more, would preclude us from saying that their noninclusion renders the classification so arbitrary as to cause it to be obnoxious to the equal protection clause. Decisions sustaining the validity of legislation like that here involved are numerous and substantially uniform. Among them we cite the following: Nolen v. Riechman (D. C.) 225 Fed. 812, 818; Schoenfeld v. Seattle (D. C.) 265 Fed. 726, 730; Lane v. Whitaker (D. C.) 275 Fed. 476, 480; Huston v City, 176 Iowa, 455, 468, 156 N. W. 883; City of Memphis v. State, 133 Tenn. 83, 89, 179 S. W. 631, L. R. A. 1916B, 1151, Ann. Cas. 1917C, 1056; Ex parte Dickey, 76 W. Va. 576, 578, 85 S. E. 781, L. R. A. 1915F, 840; Melconian v. City of Grand Rapids, 218 Mich. 397, 403, 188 N. W. 521; State v. Seattle Taxicab & Transfer Co., 90 Wash. 416, 423, 156 Pac. 837; Donella v. Enright et al. (Sup.) [264 U.S. 140, 145] 195 N. Y. Supp. 217; People v. Martin, 203 App. Div. 423, 197 N. Y. Supp. 28, where the statute now under review was sustained against the attacks here made as to its constitutionality. And see Fifth Avenue Coach Co. v. New York, 221 U.S. 467 , 31 Sup. Ct. 709; Pacific Express Co. v. Seibert, 142 U.S. 339, 353 , 12 S. Sup. Ct. 250
It is asserted that the requirements of the statute are so burdensome as to amount to confiscation, and therefore to result in depriving appellant of his property without due process of law. The allegation is that the rate of premium fixed by insurance companies operating in New York amounts to about $18.50 per week for each taxicab, while the net income from each is about $35 per week. The operator, under the statute, however, is not confined to this method of security, but instead may file either a personal bond with two approved sureties or a corporate surety bond. Appellant says that he cannot procure a personal bond, but it does not appear that he might not procure the corporate surety bond at a less cost. Affidavits filed below on behalf of appellees tend to show that insurance policies in mutual casualty companies may be secured for $540 a year, and that operators of upwards of a thousand cars have furnished personal bonds. The fact that, because of circumstances peculiar to him, appellant may be unable to comply with the requirement as to security without assuming a burden greater than that generally borne, or excessive in itself, does not militate against the constitutionality of the statute. Moreover, a distinction must be observed between the regulation of an activity which may be engaged in as a matter of right and one carried on by government sufferance or permission. In the latter case the power to exclude altogether generally includes the lesser power to condition and may justify a degree of regulation not admissible in the former. See Davis v. Massachusetts, 167 U.S. 43 , 17 Sup. Ct. 731.