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Ex Parte Counts

October 1915

IN THE MATTER OF THE APPLICATION OF W. L. COUNTS FOR A WRIT OF HABEAS CORPUS.


Sweeney & Morehouse, for Petitioner.

Lester D. Summerfield, City Attorney of Reno, for Respondent.

By the Court, Norcross, C. J.:

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully held in custody by the chief of police of the city of Reno upon a charge of misdemeanor for the violation of a certain ordinance in said city, known as City Ordinance No. 183, and entitled:

“An ordinance to fix, impose and provide for the collection of a license tax upon jitney busses, and to regulate the operation and running of the same within the city of Reno; to fix a penalty for the violation of its provisions; and to repeal all ordinances and parts of ordinances in conflict therewith, and particularly City Ordinance No. 176.”

Section 1 of the ordinance in question, under the heading “Definition of Terms,” provides:

“A ‘jitney bus' shall mean and include any self-propelled

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motor vehicle, other than a street-car, employed in the business of carrying passengers for hire over fixed routes, or between certain definite points, within the city of Reno.”

Section 2 of the ordinance requires a written application, according to a prescribed form, for a license to engage in the business of operating or running a “jitney bus” to be filed with the city clerk.

Section 3 of the ordinance requires that the written application be accompanied with a surety company bond or a policy of insurance executed by a company authorized to do business in Nevada, in the sum of $10,000 for the operation of not to exceed one “jitney bus,” and $5,000 for each additional “jitney bus” proposed to be operated, such indemnity bond “conditioned to the effect that in the event of any person or property being injured or damaged by negligence or carelessness in the operation of any jitney bus owned or operated by or under the control of the person filing such indemnity bond, the person so injured in his person or property shall have a right of action thereon. * * *”

Such policy of insurance, if furnished in lieu of a bond, to insure the owner, lessee, or person in control of said “jitney bus against loss by reason of damage that may result to any person or property by reason of negligence or carelessness in the operation of any jitney bus owned, operated, or under the control of the person filing such policy of insurance. * * * Said policy, or policies, of insurance shall guarantee payment of any final judgment rendered against the said owner or lessee of said jitney bus, under the terms and conditions hereinbefore set forth, irrespective of the financial responsibility of the owner, lessee, or person having the control of said jitney bus.”

Section 4 of the ordinance provides that the city council shall grant a license to operate such jitney bus or busses upon the approval of such bond or policy of insurance; the other provisions of the ordinance appearing to have been fully complied with.

Section 5 of the ordinance fixes the amount of a quarterly license tax at $15 for a bus of a capacity of not

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exceeding five passengers; $20 for a bus with a capacity of more than five and less than ten passengers; and $30 where the capacity of the bus exceeds ten passengers.

Sections 6, 7, and 9-16 of the ordinance contain other provisions in the nature of regulations, not necessary to here refer to.

Section 8 makes it unlawful to operate a “jitney bus” without the prescribed license, and section 17 makes it a misdemeanor to violate any provision of the ordinance.

Section 19 provides:

“This ordinance is hereby declared to be passed and adopted, both for the purpose of revenue and for the regulation of the business herein legislated upon.”

It is the contention of petitioner that the ordinance in question is void, in that the city council of the city of Reno is not invested with any power to adopt such an ordinance; that the city council has no power to classify an automobile as a jitney bus or to define the points in the city of Reno over which an automobile should run, or to authorize or compel or demand of petitioner a bond in the sum of $10,000 or any other sum, before he could run his said automobile, he being licensed by the State of Nevada; that the said ordinance is void because the license tax is not made uniform in proportion to the approximate amount of business done by the licensee, and further, because it is unreasonable and discriminating, in that street railroads, ...


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