Carson v. Woodram S.

• Decision Date: 11 December 1923
• Citation: 95 W.Va. 197
• Parties: Asa Carson v. Benjamin Woodram et als.
• Court: West Virginia Supreme Court

95 W.Va. 197

Asa Carson

v.Benjamin Woodram et als.

Supreme Court of Appeals of West Virginia.

Submitted December 4, 1923.

Decided December 11, 1923.

1. Licenses Law Licensing Operation of Passenger Automobiles for Hire Between Fixed Termini Held Valid.

A statute providing that no motor or other vehicle shall be operated over any public road or highway, or over any street or alley within an incorporated city or town in this State for the carriage of passengers, freight or merchandise for hire, in such manner as to afford a regular means of transportation by indiscriminately receiving and discharging passengers, freight or merchandise, along the route on which the vehicle is operated, or for transporting passengers, freight of merchandise for hire, as a business between fixed and regular termini, until the owner or operator of such vehicle shall have first obtained from the proper licensing authority a permit for the purpose, is valid and constitutional; its enactment being a proper exercise of the police power of the State. (p. 199).

2. Carriers One Operating Automobiles Under Permit Between Fixed Termini for Carrying Passengers May Enjoin Others Without License from so Operating.

A person operating automobiles under such permit over public highways between fixed termini for the carriage of passengers for hire, may enjoin others without such license or permit from engaging in like enterprise, (p. 201).

Appeal from. Circuit Court, Cabell County.

Suit by Asa Carson against Benjamin Woodram and others. From a decree dissolving a temporary injunction, plaintiff appeals.

Reversed, injunction reinstated, and cause remanded. D. B. Daugherty, for appellant.

Darnell & Lovins, L. R. Via and C. E. Gopen, for appellees. Litz, Judge:

The plaintiff appeals from a decree entered December 19, 1922, by the judge of the circuit court of Cabell county, dissolving an injunction theretofore awarded against the defendants restraining them from operating automobile or bus lines for hire over certain public highways.

On December 6, 1922, the plaintiff presented his bill to the judge of the circuit court of Cabell county, in vacation, alleging that on the 21st day of January, 1922, he had obtained from the State road commission of this State, under Class I, Section 82, Chapter 112, Acts of the Legislature 1921, (Class I, Section 82, Chapter 43, Barnes' Code, 1923), a permit to operate an automobile line for the carriage of passengers for hire between the city of Huntington, Cabell county, and Glen- wood, Mason county, West Virginia, and, having given bond in the penalty of $3,000.00, since the issuance of the permit had been maintaining and operating thereunder an automobile line on fixed daily schedules along and over this route; that the defendants, without such permit, had been and were operating automobile and bus lines upon and over the same route, for the carriage of passengers for hire, whereby the plaintiff, to his irreparable injury, was being deprived of a large patronage from the public he would otherwise enjoy. An injunction, as in the bill prayed for, enjoining and restraining the defendants from operating automobile lines for hire and reward over or upon said route, was thereupon awarded. Subsequently, December 19, 1922, upon motion of defendants, after the filing of their joint and separate answer and supporting affidavits, this injunction was wholly dissolved.

The answer admits that the plaintiff has obtained a permit from the State road commission and is operating thereunder a bus or automobile line, as alleged in the bill; but charges that the plaintiff is not rendering proper and adequate service to the public. It admits further that defendants for hire, and without a permit as required by the statute, have been and are operating automobile and bus lines upon and over the route in question, soliciting patronage from the public in furtherance of such business.

The answer also charges that the act under which the plaintiff's permit was granted is unconstitutional and void as affording the holders of such permits a monopoly on a special use of the public roads and highways; this being the only substantial defense offered by the defendants.

The Act provides:

"Class I No motor or other vehicle shall be operated over any public road or highway, or over any street or alley within an incorporated city or town in this State for the carriage of passengers, freight or merchandise for hire, in such manner as to afford a regular means of transportation by indiscriminately receiving and discharging passengers, freight or merchandise along the route on which the vehicle is operated, or for transporting passengers, freight or merchandise for nire as a busi ness between fixed and regular termini, until the owner or operator of such vehicle shall have first made application to and secured from the proper licensing authority a permit to operate such vehicle. If such applicant for license shall desire to operate such vehicle wholly within any city or incorporated town, such authority shall be the city or town council or corresponding body; in all other cases such authority shall be the state road commission.

"The application for such permit shall state the capacity of such vehicle or vehicles, the purpose for which the same is to be used, route over which the same shall travel and the rates proposed to be charged, and such other matters as the commission, or other licensing authority, as the case may be,...