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McDevitt v. Shore Yellow Cab Co.

Decided: April 12, 1944.

JAMES MCDEVITT ET AL., PROSECUTORS,
v.
SHORE YELLOW CAB CO., A CORPORATION, ET AL., RESPONDENTS



On writ of certiorari.

For the prosecutors, Irving I. Jacobs.

For the respondents, Vincent S. Haneman.

Before Justice Case, Donges and Porter.

Case

The opinion of the court was delivered by

CASE, J. The writ brings up for review an order made by Joseph Altman, Director of Parks and Public Property of Atlantic City, revoking and ordering seized six municipal taxicab licenses issued by Atlantic City to prosecutors for the year from July 1st, 1943, to June 30th, 1944.

We find the facts to be as follows: Prosecutors, James McDevitt and his associates, and respondent Shore Yellow Cab Co., are the operators of competing taxicab services in Atlantic City. Respondent, as its corporate name indicates, uses yellow as a distinguishing color of its taxicabs. It and its predecessors have done so for nearly twenty years. At and prior to the beginning of the present controversy respondent was using a two-tone yellow paint coat. Prosecutors operate under the name of City Service Cab Co., have been

in business for eight or nine years and, until August, 1943, maintained, earlier, the colors of green and white, and, later, the colors of blue and white on their cabs, of which they had thirty-eight. In the summer of 1943 they purchased six second-hand cabs from the Philadelphia Yellow Cab Co. and undertook to operate them in Atlantic City in the two-tone yellow paint that was on the cabs when purchased. Prosecutors were arrested on a charge of infringing the color scheme of the Shore Yellow Cab Co. in violation of a municipal ordinance which prohibited the use by one taxicab service of the color scheme, name, monogram or insignia of another taxicab service and were convicted in the Recorder's Court. On appeal the Atlantic Pleas reversed, not upon the merits, but upon a finding that, by the terms of the ordinance, the Director of Parks and Public Property had exclusive jurisdiction to hear the cause. Prosecutors thereupon varied their coloring by painting the tops of their cabs in white and the body and fenders in an orange-yellow and made a still further slight variation at the informal suggestion of the Director of Parks and Public Property. Nevertheless there remained a similarity in the body colors of the competing taxicabs in that while they were in different shades they nevertheless all carried a yellow body and were not, in all positions and all conditions of light, readily distinguishable. Prosecutors made another change which increased the resemblance of their recently acquired cabs to those long in use by respondents. They had carried the insignia of their service in decalcomania letters on the back door of their cabs whereas respondents carried its designation in block letters on the front door. Prosecutors transferred the lettering on the disputed cars to the front door and in block letters.

Atlantic City is a commission governed municipality (R.S. 40:72-1, et seq.). Under the authority of R.S. 40:72-4, which directs the distribution of judicial as well as of executive, administrative and legislative powers among the several departments, Apple v. Atlantic City, 104 A. 89 (not officially reported); Foley v. Orange, 91 N.J.L. 554, the supervision of taxicabs had been assigned by the Board of Commissioners to the Department of Parks and Public Property.

The municipality was empowered by statute to provide for the licensing of buses and for the revocation of licenses for sufficient cause and ...


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