State v. Clifford

• Decision Date: 26 May 1910
• Citation: 228 Mo. 194,128 S.W. 755
• Parties: STATE ex rel. ST. LOUIS TRANSFER CO. v. CLIFFORD.
• Court: Missouri Supreme Court

128 S.W. 755

228 Mo. 194

STATE ex rel. ST. LOUIS TRANSFER CO. v. CLIFFORD.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

1. EVIDENCE (§ 598) — WEIGHT AND SUFFICIENCY—NUMBER OF WITNESSES.

A numerical preponderance of witnesses is not decisive of the controversy between the parties to an action.

2. EVIDENCE (§ 584)—WEIGHT AND SUFFICIENCY—COMMON KNOWLEDGE.

The evidence which contradicts the evidence of the senses, and which is contrary to the information of people generally, must be received with caution.

3. MUNICIPAL CORPORATIONS (§ 111)—ORDINANCES —CONSTRUCTION.

Where the question of the reasonableness of a municipal ordinance is in issue, all reasonable doubts are to be resolved in favor of the municipality, and courts will declare an ordinance unreasonable only when the prima facie case made by the passage of the ordinance is overcome in the most satisfactory manner.

4. MUNICIPAL CORPORATIONS (§ 703)—ORDINANCES—REGULATION OF WIDTH OF TIRES.

An ordinance regulating the width of tires to be used on all kinds of vehicles used on the streets of a city is not discriminating, nor in derogation of common right, nor unreasonable.

5. MUNICIPAL CORPORATIONS (§ 58)—GRANT OF LEGISLATIVE POWER—CONSTRUCTION.

The grant by the state to a city of power for a certain purpose must be strictly construed, and, where the city is empowered by its charter to make ordinances for certain purposes, its power of legislation is limited to the objects specified.

6. MUNICIPAL CORPORATIONS (§ 703)—ORDINANCE REGULATING WIDTH OF TIRES—"VEHICLES FOR HEAVY TRANSPORTATION."

A city in its charter was granted the power to improve streets and to regulate the use thereof, and in another paragraph of the same section it was empowered to regulate by ordinance "the width of the tires of all vehicles for heavy transportation." Held, that the latter grant of power was express, and must be strictly construed; that the express grant was not merely a corollary of the general power to improve the streets and regulate the use thereof; that under Rev. St. 1899, § 4160 (Ann. St. 1906, p. 2252), providing that "words and phrases shall be taken in their plain or ordinary and usual sense," the term "vehicles for heavy transportation" means vehicles constructed for carrying heavy loads; and that an ordinance regulating the width of tires of all vehicles to be used on the streets in accordance with the size of the axles exceeds the power of the city, as it makes no discrimination between vehicles for light and heavy transportation.

7. MUNICIPAL CORPORATIONS (§ 111)—ORDINANCES REGULATING WIDTH OF TIRES.

The ordinance does not come within the rule that, where one part of an ordinance is valid and another part void, the valid part may be given effect if what remains after the invalid part is eliminated contains the essential elements of a complete ordinance, as the ordinance is entire, and each part has a general influence over the rest which makes it void in its entirety.

Appeal from St. Louis City Circuit Court, Matt G. Reynolds, Judge.

Mandamus by the State, on the relation of the St. Louis Transfer Company, against P. J. Clifford, license collector, to compel him to issue licenses for relator's wagons used by it on the streets of St. Louis. Writ denied, and relator appeals. Reversed and remanded, with directions to grant a peremptory writ of mandamus.

Relator applied to the circuit court of the city of St. Louis for a writ of mandamus to compel the license collector of said city to issue licenses for relator's wagons and other vehicles used by it on the streets of the city. The defendant had refused to issue the licenses applied for on the ground that relator failed to make certain statements and affidavits required by section 1708, c. 23, art. 2, Gen. Ordinance No. 19,991, and because the tires upon relator's said vehicles were narrower than the width required by said section of the ordinance. Upon a trial of the cause, the peremptory writ was denied, and relator appealed to this court.

In its petition relator alleged that it was a Missouri corporation, engaged in carrying freight, passengers, and baggage within the city of St. Louis, Mo., and within East St. Louis, Ill., and in carrying freight between said cities; that in its business it uses 28 different kinds of vehicles, from "light baggage wagons, buggies, spring wagons and road carts, which haul and carry light loads, to heavy stake wagons, half spring wagons, long reach wagons, bulk grain wagons and other wagons, which are designed to carry, and frequently do carry, heavy loads averaging in weight from four to ten tons"; that certain other of its vehicles have rubber tires; that its wagons, road carts, and passenger coaches have no rubber tires, and are so constructed as to make it impracticable to equip them with rubber tires; that the operation of all its vehicles, except passenger coaches and baggage wagons, is confined to the downtown streets of the two cities, which are for the most part paved with cobble stones and granite blocks; that the defendant was the duly qualified licensed collector of St. Louis.

Relator then sets out in full section 1708 of the Revised Ordinances of 1900, being a revision of Ordinance No. 18,858, enacted in 1898. This section provides for a license tax on all kinds of vehicles, graduated according to their character, and contains the proviso "that from and after the first day of January, eighteen hundred and ninety-nine, no vehicle of any kind or description shall be used on the streets of this city for any purpose whatever, unless all wheels of such vehicle shall be constructed with a width of tire corresponding to the size of the axle on the following scale, to wit: Vehicles having axles of iron or steel, the wheels shall have width of tires as follows, to wit: If the axle is of a width or thickness or diameter of one and one-fourth inches, the tires must be at least one and one-fourth inches wide; if the axle is of a width or thickness or diameter of one and one-half inches, the tire must be at least one and three-fourths inches wide; if the axle is of a width or thickness or diameter of one and five-eights inches, the tire must be at least two inches wide; if the axle is of a width or thickness or diameter of one and three-fourths inches the tire must be at least two and one-fourth inches wide; if the axle is of a width or thickness or diameter of one and seven-eighths inches, the tire must be at least two and one-half inches wide; if the axle is of a width or thickness or diameter of two inches, the tire must be at least two and three-fourths inches wide; if the axle is of a width or thickness or diameter of two and one-eighth inches, the tire must be at least three inches wide; if the axle is of a width or thickness or diameter of two and one-fourth inches, the tire must be at least three and one-half inches wide; if the axle is of a width or thickness or diameter of two and one-half inches, the tires must be at least four inches wide; if the axle is of a width or thickness or diameter of two and three-fourths inches, the tires must be at least four and one-half inches wide; if the axle is of a width or thickness or diameter of three inches, the tires must be at least five inches wide; if the axle is of a width or thickness or diameter of three and one-half inches, the tires must be at least five and one-half inches wide; if the axle is of a width or thickness or diameter of four inches, the tires must be at least six inches wide." Then follows a scale for wooden axles, but this has no bearing upon the case at bar, and will be omitted. Trucks used for hauling boilers, engines, safes, or dimension stones are required by the ordinance to have tires at least six inches wide, and those for hauling cable rope eight inches wide, such trucks to be constructed with axles of such lengths that the hind wheels should be at least eight inches further apart than the front wheels thereof. Drays are required to have tires at least four inches wide, and sprinkling carts six inches. Then follows a provision that vehicles which should be made to conform with the ordinance prior to January 1, 1899, should from the date of such compliance with the ordinance and until said 1st day of January, 1899, be exempt from the license tax, but that from and after January 1, 1899, all vehicles should be subject to the provisions of the section, and it was made unlawful, after said date, to use any vehicles on the streets of the city unless the tires thereof should conform to the requirements of said section. It was next provided that no license should be issued for any vehicle except upon the sworn statement of the applicant showing that the provision of the ordinance in respect of width of tires had been complied with.

Relator next alleged that it applied to the defendant for license in the year 1905 for 132 two-horse wagons, 14 carriages, 2 four-horse wagons, 4 one-horse wagons, and 7 buggies, and tendered the amount of license fees required, but that defendant refused to issue the licenses, assigning as his reason for such refusal that the relator did not accompany its application for such licenses with the sworn statement required by the ordinance showing the width or thickness or diameter of the axles, and width of tires, and the vehicles for which such licenses were to be used.

The relator further alleges that its vehicles had not for years been constructed with a width of tire corresponding to the size of the axle on the scale mentioned in the ordinance, and then set out in its petition a table of the various kinds of vehicles used by it whose tires did not comply with the ordinance, as follows:

                |     Description             |  Size of      |  Width of         |  Weight  |
                |         of                  |   Steel       |   Tire.           |    of    |
                |

...