In Marchand v. Fournier (1916) Rap. Jud. Quebec 49 C. S. 298, it was held that one whose permit of occupation of public land under the Quebec statutes was revoked might recover, against a subsequent grantee of the land, the value of improvements and outlays by him.

e. Under statutes expressly relating to state lands.

1. Tennessee.

Harvey v. Jones (1842) 8 Humph. 157, involved a statute providing that persons in the actual possession of vacant and unappropriated land should have priority for 160 acres, including their dwelling and improvements; that any person settling upon vacant land and making valuable improvements, and not entering or transferring the same, need not surrender possession until the value of the improvements was paid, the improvements being entered by any third person; and that, when any valuable improvements might be entered which did not give a preference of entry to the owner, the person entering the improvements should pay the value to the person owning the improvements. It was held that a person seeuring 160 acres as an occupant enterer, and who had also made improvements on adjoining land, was entitled to remuneration for the improvements from the person entering such adjoining land.

2. Washington,

The Washington statute relative to the appraisal and sale of the state's school lands requires the appraisers to appraise all improvements found on the land, and to deduct therefrom all damages and waste, and provides that if the purchaser be not the owner of the improvements he shall pay to the owner the appraised value thereof. Pearson v. Ashley (1892) 5 Wash. 169, 31 Pac. 410. A later statute apparently limits the right to compensation for improvements to persons who were not holding or claiming the land adversely to the state. Sullivan v. Callvert (1902) 27 Wash. 600, 68 Pac. 363. Thereunder it has been held that a person making improvements on

school lands is entitled to be reimbursed therefor, though the improvements had not been appraised pursuant to the statute (Wilkes . Hunt (1892) 4 Wash. 100, 29 Pac. 830; but see Wilkes v. Davies (1894) 8 Wash. 112, 23 L.R.A. 103, 35 Pac. 611, where the court, though holding that the question was res judicata between the parties to that action, said that it would not consider itself bound by the decision in Wilkes v. Hunt, supra, when the question arose in an independent action); that the purchaser cannot recover possession until such payment is made, and that, even though there are more than one person claiming to be the owners, he must, in some manner, determine to whom payment should be made before he can maintain an action for possession (Pearson v. Ashley, supra; Brummett v. Campbell (1903) 32 Wash. 358, 73 Pac. 403); that the improvements are to be appraised at the time the land is appraised, and the owner of the improvements cannot demand a new appraisal at the time of the sale, but can only recover their value as previously appraised (Holm v. Prater (1893) 7 Wash. 207, 34 Pac. 919); but that an appraisement at the time of the sale was valid, though the land had been previously appraised, where there had been no appraisement of the improvements (J. F. Hart Lumber Co. v. Rucker (1896) 15 Wash. 456, 46 Pac. 728); that the owner of the improvements is not required to yield up possession before bringing an action against the purchaser of the land for their value (Wilkes v. Davies, supra); and that, an appraisement having stated that the improvements were upon the lot sold, the purchaser must be presumed to have bought with the expectation of paying therefor, and cannot take advantage of the fact that some portion of the improvements was upon tideland in front of the upland purchased (J. F. Hart Lumber Co. v. Rucker, supra).

Improvements on tideland must be appraised before any sale thereof, and the value of the improvements paid by the purchaser into the state treasury for the use of the owner of the im

tracks over which street car service is maintained, and within 700 feet of said street car tracks, and did thereafter discharge the said passenger upon and along Twelfth street, said street now being traversed by street car tracks over which street car service is maintained, and within 700 feet of said street car tracks, contrary to and against the ordinance;" that the imprisonment is illegal because, among other reasons, the ordinance is unjust, arbitrary, and unreasonable. A writ of habeas corpus was issued.

By return the officer sets up that the petitioner is held "by virtue of a warrant and affidavit of complaint issued out of the municipal court of the city of Miami, a true copy whereof is attached to the petition for writ of habeas corpus." The court discharged the petitioner and allowed a writ of error which was taken by the officer under the statute. Gen. Stat. 1906, Comp. Laws 1914, § 2257; Pounds v. Darling, 75 Fla., L.R.A.1918E, 949, 77 So. 666; Hardee v. Brown, 56 Fla. 377, 47 So. 834.

Section 6 of the ordinance referred to is as follows: "It shall be unlawful for any jitney bus operator or owner to take on or discharge passengers upon or along, or within 700 feet of any street, avenue, or highway in the city of Miami, which is now or may hereafter be traversed by street car tracks over which street car service is maintained. Provided, however, that passengers taken on at points more than 700 feet distance from street car tracks may be discharged at any point, and provided further that passengers boarding any jitney bus within less than 700 feet of any street car tracks shall not be discharged at any point nearer than 700 feet of any street car tracks."

There appears to be no statute or provision of the city charter expressly authorizing the regulations contained in the quoted § 6 of Ordinance 236 of the city of Miami, but the city is given power "to pass

all ordinances necessary to the health, convenience, comfort, and safety of the citizens," and also is given "power to do and perform all things necessary for the government of the city not inconsistent with the Constitution and laws of the United States, the Constitution of the state of Florida, and the terms and provisions of this act." Acts 1913, § 27, chap. 6724.

"A municipal ordinance of a regulatory nature, in contravention of the natural rights of individuals, enacted under general charter powers, is not only required to be constitutional, but it must be reasonable as well; that is, the court before which it is brought must be able to see that it will tend to promote the public health, morals, safety, or welfare; that the means adopted are adapted to that end, ation, and not unduly oppressive and that it is impartial in operupon individuals." 19 R. C. L. p. 805, and authorities there cited."

In this case the quoted provision general welfare powers of the city of the ordinance adopted under is obviously not designed to exclude jitney service from certain streets for safety, sanitary, or other reasons involving the public welfare, but its manifest purpose and effect are to curtail the use of jitneys where they will compete with street cars; and in accomplishing this object the public are unreasonably deprived of

the use of jitneys Municipal corporation-reguin streets from lation of Jitney which they are thus validity. arbitrarily exclud

busses

ed. Even if the quoted section of the ordinance is not invalid as tending to produce and promote a monopoly for the street cars, it forbids the use of jitneys by the public in certain streets or sections of the city, without any basis therefor in matters affecting public safety, health, morals, or welfare; it is therefore arbitrary and unreasonable, and consequently invalid. Judgment affirmed.

Browne, Ch. J., and Taylor, Ellis, and West, JJ., concur.

That jitney busses and their use of public streets and highways are subject to reasonable regulations seems to be well settled. Questions may arise, however, as to the constitutionality or reasonableness of particular regulations, or, in the case of municipal ordinances, as to whether they are within the powers delegated to the municipality. In most of the cases hereinafter cited, the particular restrictions which come within the subject of this note are merely incidental provisions of ordinances intended to cover the whole matter of the regulation of jitney busses. Questions which relate to the validity of such an ordinance as a whole, rather than to the validity of the particular provisions with which this note is immediately concerned, such, for example, as the question of whether such ordinances are unconstitutionally discriminatory because of applying to jitney busses, and not to other common carriers, are not discussed herein.

The ordinance considered in the reported case (CURRY V. OSBORNE, ante, 108) was enacted under the general welfare powers of the city, and provided in substance that it should be unlawful to take on or discharge passengers within 700 feet of any street over which street car service was maintained. The court says: "It forbids the use of jitneys by the public in certain streets or sections of the city, without any basis therefor in matters affecting public safety, health, morals, or welfare; it is therefore arbitrary and unreasonable, and consequently invalid."

An ordinance which, while not directly restricting the places where jitneys might receive passengers, required the owners, before being permitted to solicit or receive passengers on the paved portions of certain designated streets, to pay a license fee, in addition to that required of all jitneys, so large in amount as to be prac

tically prohibitive, was held in Dresser v. Wichita (1915) 96 Kan. 820, L.R.A.1916D, 246, 153 Pac. 1194, to be within the general powers conferred by the legislature upon the city, among which was included the power to levy and collect a license tax upon, and regulate, wagons and other vehicles transporting passengers for pay. It was also held that it was not rendered invalid by reason of the fact that its enforcement would necessarily benefit the street railway company. The court recognized the rule that such regulations must be reasonable, but on the ground that those who pass ordinances for a city are primarily the judges of what requirements are reasonable, and that it is not for the courts to interfere unless and until it appears beyond question that the thing done was not a use, but a misuse, of power, refused to enjoin the ment of the ordinance.

e

In Allen v. Bellingham (1917) 95 Wash. 12, 163 Pac. 18, it was urged against a provision in a jitney ordinance, making it unlawful "to stop while in the fire limits of the city of Bellingham for the purpose of accepting or discharging passengers, except such stop be made within not less than 10 feet or more than 50 feet of the near side of an intersecting alley, or within not less than 10 feet nor more than 50 feet of the center of such blocks as contain no intersecting alley;" or to "stop when outside of the fire limits of the city of Bellingham, on the intersection of any street or within 25 feet thereof, for the purpose of accepting or discharging passengers," that it was unreasonable and unnecessary and not required for the benefit of the public, but intended to make the operation of jitneys unprofitable, and thus to benefit other public carriers, particularly street cars; but the court held that the regulation was within the power of the city, and justifiable as intended to mitigate congestion of traffic.

West v. Asbury Park (1916) 89 N. J. L. 402, 99 Atl. 190, involved an ordinance providing, among other things, that it should be unlawful for auto busses "to receive or discharge passengers except at the curb, or the regularly provided stands, and except at the nearest side of street intersections and on the right-hand side of the street." The city charter authorized the council to regulate, clean, and keep in repair the streets and highways; to regulate the speed and running of motor or other cars through the city; to license and regulate all carriages and vehicles used for the transportation of passengers and goods and chattels of any kind, and the owners and drivers thereof; and to make and establish such other ordinances as they may deem necessary to carry into effect the powers and duties conferred on them, and as they may deem proper for the good government, order, protection of persons and property, preservation of the public health, and prosperity of the city. The court, after reciting various provisions of the ordinance, including the one above quoted, says: "We think all the provisions we have recited are well within the express powers given to the council, or within the powers necessarily inferred from the general clause."

In Thielke v. Albee (1915) 79 Or. 48, 153 Pac 793, an ordinance regulating

the operation of motor busses was attacked on the ground, among others, "that it is void for the reason that it requires motor busses, when approaching intersecting streets, to stop at the near crossing thereof to take on or discharge passengers." The opinion, beyond reciting this ground of attack, makes no reference to the point raised, but, after discussing other questions, sustains the ordinance.

Ordinances containing restrictions of the kind considered in this note have been sustained in other cases, but apparently without consideration of these provisions. Ex parte Sullivan (1915) 77 Tex. Crim. Rep. 72, P.U.R. 1915E, 441, 178 S. W. 537 (forbidding stops except at right-hand curb); Hazleton v. Atlanta (1916) 144 Ga. 775, 87 S. E. 1043, subsequent appeal in (1917) 147 Ga. 207, 93 S. E. 202 (forbidding stops at intersection of cross streets, except at curb on rear side and right-hand side of street, in such position as not to interfere with pedestrians crossing street or passengers boarding or alighting from street cars); Com. v. Slocum (1918) 230 Mass. 180, 119 N. E. 687 (forbidding taking on or discharging passengers except at curb, or standing to wait for passengers except at places to be designated by the police commission). M. A. L.

V.