Brogan v. Hosey, Mayor

• Decision Date: 20 May 1935
• Docket Number: 31727
• Court: Mississippi Supreme Court
• Parties: BROGAN et al. v. HOSEY, MAYOR et al

161 So. 690

172 Miss. 869

BROGAN et al. v. HOSEY, MAYOR et al

No. 31727

Supreme Court of Mississippi

May 20, 1935

Division B

1 AUTOMOBILES.

Statute empowering municipalities to require operators of motor vehicles for hire to give reasonable bond of not more than five hundred dollars to guarantee faithful observance of the law and municipal rules and regulations held not to exclude power of municipalities to require such operators to carry liability insurance (Code 1930, section 5596).

2 AUTOMOBILES.

Statute authorizing municipalities to adopt necessary measures for protection of traveling public and to prescribe oilier reasonable rules and regulations governing use and operation of motor vehicle for hire held sufficiently broad to include power to require operators of taxicabs to carry liability insurance (Code 1930, sections 2434, 5598).

3 AUTOMOBILES.

Ordinance requiring that operators of taxicabs take out liability insurance to amount of five thousand dollars for first person injured, or ten thousand dollars for all persons injured in a single accident, held not unreasonable.

4. AUTOMOBILES.

Where application for license to operate taxicabs under ordinance was not acted on before repeal of such ordinance by valid ordinance imposing new conditions, applicants had DO contractual or other rights which prevented city from requiring compliance with later ordinance as a condition of granting permit to operate taxicabs.

HON. A. B. AMIS, SR., Chancellor.

APPEAL from the chancery court of Jones county, Second district, HON. A. B. AMIS, SR., Chancellor.

Suit by Mike Brogan and another against G. W. Hosey, Mayor, and others. From a decree dissolving temporary injunction and dismissing complainant's bill, complainants appeal. Affirmed.

Affirmed.

F. B. Collins, of Laurel, for appellants.

The powers delegated to municipalities by the Legislature are intended to be exercised in conformity to, and consistent with, the general laws of the state.

Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, 31 A. S. R. 518; Comfort v. City of Kosciusko, 88 Miss. 611, 41 So. 268; Hazlehurst v. Maze, 96 Miss. 656, 51 So. 890; Steitenroth v. Jackson, 99 Miss. 354; Wise v. Yazoo City, 96 Miss. 507, 51 So. 453; Town of Clinton v. Turner, 95 Miss. 594, 52 So. 261; City of Kosciusko v. No Equal Textile Co., 139 Miss. 220, 104 So. 102; Knight v. Johns, 137 So. 509.

The ordinance must be reasonable and in keeping with the general law. The charter powers of a municipality are to be construed most strongly against the right claimed by it and not clearly given by statute. When there is any doubt as to whether or not a municipality has the power to do or not to do a particular thing, this doubt should be solved against its charter powers.

Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723.

There is no general law of the state of Mississippi requiring the operators of motor vehicles to become insurers of the public against the operation of such motor vehicles.

The Legislature authorized the city to require of taxi drivers a bond in the sum of five hundred dollars, conditioned according to the provisions of said section, and since the Legislature undertook to legislate upon this particular question, the remedy therein provided for or the authority therein granted to the city is exclusive, and it has not authority to add to or enlarge upon the authority therein granted.

Sections 5596 and 5598, Code of 1930.

The ordinance under consideration could not be made to apply to these appellants for the period of one year from September 1, 1934, because they had already entered into a contract or a franchise from the city to operate taxis for the year from September 1, 1934, and if said ordinance was made to apply to them, it would be in violation of clause 1, section 10, article 1 of the Federal Constitution, and section 16 of the state Constitution which provide that no law shall be passed impairing the obligation of a contract.

Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 107, 49 A. S. R. 183.

J. R. Buchanan, of Laurel, for appellees.

Where the exercise of particular governmental powers may be fairly included in and authorized by general powers conferred upon the municipalities, the rule expressio unius est exclusio alterius is not generally applied to the specific powers conferred by enumeration so as to exclude powers that serve the purpose for which the municipalities are organized, where such powers are not inconsistent with other powers conferred.

Southern Utilities Co. v. Palatka, 86 Fla. 583, 99 So. 236, 268 U.S. 232, 69 L.Ed. 930.

In the Code of 1930 the Legislature has recognized the necessity of the enactment by municipal governing bodies of ordinances covering certain matters relating to governmental functions, and has granted general powers to the municipal governing bodies to enact ordinances relating to certain matters of police powers, and relating to matters concerning the welfare of the traveling public, and the operation of motor vehicles for hire in the municipalities, and has passed section 2434 and article 2 of chapter 138 of the Code of 1930, which embraces sections 5596 to 5602 of the Code.

State of Florida ex rel. v. Dillon, 82 Fla. 276, 89 So. 558.

Section 5598 of the Code provides that the governing authorities of the municipality may prescribe other reasonable rules and regulations governing the use and operation of motor vehicles for hire within the city. The limitation placed upon this power is that these other rules and regulations not specifically enumerated in the code chapter shall be reasonable. If the provision as set out in section 3 of the ordinance under consideration is reasonable, the power to pass these rules and regulations is granted to the municipal authorities under this section of the code.

The right to prescribe conditions for transaction of business requiring the use of the streets of a municipality is police power.

Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 227; Green v. Louisville & Interurban R. R. Co., 244 U.S. 507, 61 L.Ed. 1280.

The ordinance, as related to the insurance or indemnity bond, was enacted, not particularly to safeguard the property rights of the city, but rather to protect the traveling public against the negligent operation of motor vehicles for hire on the streets.

Scott v. Hart, 128 Miss. 353, 91 So. 17; Hadfield v. Lundin, 98 Wash. 657, 168 P. 516; City of Mobile v. Farrell, 158 So. 539; Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U.S. 335, 76 L.Ed. 323; Nolen v. Riechman, 225 F. 812, 22 A.L.R. 232; Sprout v. South Bend, 277 U.S. 163, 72 L.Ed. 833; Section 7124, Code of 1930.

The Legislature recognized the fact that the transportation companies are exercising a privilege, not a common right, in the use of the public highways for private gain, and, because of its extraordinary nature, this privilege is granted to them only upon their complying with certain conditions, among which is the requirement for liability insurance to protect the traveling public from injuries and damages accruing by reason of their operations as transportation companies.

Section 7124, Code of 1930.

The evidence shows conclusively that the appellants are irresponsible financially and further shows that this fact was known to the governing authorities of the municipality.

Willis v. Fort Smith, 121 Ark. 606, 182 S.W. 275.

Had appellants received a permit and had they made a contract with the city of Laurel by complying in every way with the ordinance of February 14, 1921, as amended by article 2 of chapter 138 of the Code of 1930, the enactment of the ordinance of October 22, 1934, would not have been in violation of the appellants' constitutional rights.

Dart v. City of Gulfport, 147 Miss. 534, 113 So. 441.

Power to enact the ordinance under consideration being vested in the governing authorities of the city of Laurel by section 2434 and section 5598 of the Code of 1930, and by their general police powers, neither the city of Laurel, a municipality, nor the officers or employees thereof, could bind the city by contract so as to preclude the exercise of these powers whenever, in the judgment of the governing authorities of the city of Laurel, the public exigencies demand the exercise of these powers.

City of Tampa v. Tampa Waterworks Co., 45 Fla. 600, 34 So. 631, 199 U.S. 241, 50 L.Ed. 170; Southern Utilities Co. v. Palatka, 86 Fla. 583, 99 So. 236, 268 U.S. 232, 69 L.Ed. 930.

OPINION

Anderson, J.

Appellants were prosecuted for operating passenger taxicabs on the streets of the city of Laurel without having first obtained a permit so to do, as required by an ordinance of the city adopted on the 22d of October, 1934. They filed their bill in the chancery court of Jones county against appellees, the city authorities, enjoining their further prosecution, upon the ground that the ordinance was void. A temporary injunction was obtained. On bill and answer the injunction was dissolved and the bill dismissed. From that decree appellants prosecute this appeal.

The ordinance provided that no person, firm, or corporation should operate any public taxicab or other vehicle for carrying passengers for hire on the streets of Laurel without first securing a permit from the mayor and commissioners of the city. Section 3 of the ordinance, around which the controversy hinges, is in this language:

"No person, firm or corporation shall operate or cause to be operated on the avenues, streets, or alleys of the city of Laurel any taxi or other vehicle for carrying passengers for hire, without first having secured a permit, as heretofore stated, and after having secured liability insurance on each such taxi or vehicle in some...