City of Argenta v. Keath

• Decision Date: 24 September 1917
• Docket Number: 120
• Parties: CITY OF ARGENTA v. KEATH
• Court: Arkansas Supreme Court

197 S.W. 686

130 Ark. 334

CITY OF ARGENTA v. KEATH

No. 120

Supreme Court of Arkansas

September 24, 1917

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

J. F Wills and Rose, Hemingway, Cantrell, Loughborough & Miles for appellant.

120 Ark. 226 is not conclusive of this case. The ordinances are differently worded and seek to accomplish different objects. It is the duty of the courts to give effect to the intention of the Legislature and not defeat it. 40 Ark. 431; 58 Id. 116; 83 Id. 116; 104 Id. 593; 109 Id. 564; 112 Id. 123; 114 Id 260; 121 Id. 349. Less regard is to be paid to the words used than to the policy which dictated the act. 28 Ark 200.

The ordinance is legal, and should be upheld. 83 A. 770. See 85 S.E. 781; 153 P. 1194; 178 S.W. 6; 153 P. 93; 182 S.W. 685; 121 Ark. 606; 34 Id. 263; 35 Id. 60; 37 Id. 493; 58 Id. 113; 94 Id. 422; 106 Id. 517; 109 Id. 556; 56 Id. 370; 117 P. 93; 68 So. 926.

Gus Fulk and W. A. Boyd, for appellee.

120 Ark. 226 virtually settles this case. Municipal corporations can only exercise such powers as are specially given them by statute. The language of the motor vehicle act 1911 is unambiguous, and only applies to vehicles used within the city limits, and not to those merely passing through. 11 Ark. 45; 46 Id. 159; 35 Id. 56; 48 Id. 305. As to the intent of the Legislature, see 27 Ark. 419; 36 Id. 56. The power must be expressly delegated. 26 Mich. 474; 80 Ohio 367; 64 S.E. 944; 49 N.J. 110; 54 Ill. 87. 56 Ark. 350 is not in point. "Within" means "in the interior of" and not over or across.

STATEMENT OF FACTS.

Argenta is a city of the first class. Its council passed an ordinance which provides as follows:

"Section 1. Every person, firm or corporation owning, operating or controlling any automobile or any other horseless vehicle propelled by motor power generated by the use of gasoline, electricity or steam, other than those operated upon rails or tracks, for public service, and using the streets of Argenta for the operation and running of such motor propelled vehicles, shall pay to the city collector a license fee, quarterly in advance, as follows." (Then follows the classification of vehicles and fees to be charged.)

"Section 2. Any motor propelled vehicle carrying passengers beyond its seating capacity shall be liable for license for any quarter up to the maximum number of passengers carried at that time.

"Section 3. That the license herein provided shall be paid to the city collector in advance, said license to be paid quarterly, and the city collector shall register the name of the owner, and the capacity and make of such motor propelled vehicle, and shall issue to such applicant a certificate and license tag; such license tag shall be kept displayed in a conspicuous place on said vehicle, so that same can be seen by reflection from the rear light so as to be easily read at night, and shall be used only on the machine or vehicle for which such license is issued."

This suit was instituted by the appellee, who set up in his complaint that he was operating an automobile for hire between the city of Little Rock and Fort Roots, passing through the city of Argenta en route; that by reason of military activities there was considerable passenger traffic over said route which was being taken care of by appellee and by others similarly engaged; that appellee brought this suit in behalf of himself and other automobile operators who had paid the State license fee required by law. The complaint set up the ordinance above set forth, and alleged that neither the appellee nor any other complainant undertook to transport passengers from place to place within the limits of the city of Argenta, and that they, therefore, were not subject to the terms of the ordinance; that the city of Argenta, through its police officers, was interfering with the appellee and other automobile operators by refusing to allow them to enter Argenta as a terminus, or to pass through, or to take on or discharge interurban passengers until they paid the license fee required by the above ordinance; that said action on the part of the city was an attempt to extend its jurisdiction beyond its territorial limits; that there was no statute authorizing the city to pass and enforce said ordinance. Wherefore, he prayed for a writ of injunction restraining the city from the enforcement of said ordinance.

The answer denied the allegations of the complaint, and set up that the ordinance was passed solely for the regulation of the jitney business being conducted solely over its streets and within its limits, and for the protection of the lives and property of its citizens. There was also attached to the answer a general demurrer to the complaint.

The cause was heard upon the pleadings and oral testimony, which is duly authenticated and made a part of the record, and upon an agreement of counsel, which it is unnecessary to set forth in detail. The cause may be tried here as if it had been disposed of on the demurrer. The manifest purpose of the litigation is to challenge the validity of the ordinance as it affects the appellee's business.

The court entered a decree granting the prayer of appellee's complaint, in effect holding that the ordinance was invalid as to those who were engaged in transporting passengers for hire from points within the limits of the city of Argenta to points without said city limits, and from points without the said city limits to points within said city limits, and from points without said city limits to points without said city limits, but over and across the streets of the city of Argenta; that the ordinance was valid only as to those who were engaged in transporting passengers from points within the limits of the city of Argenta to points within said limits.

The appellant brings this appeal.

OPINION

WOOD, J., (after stating the facts).

A municipal corporation has no powers except those expressly conferred by the Legislature, and those necessarily or fairly implied as incident to or essential for the attainment of the purposes expressly declared. Willis v. City of Fort Smith, 121 Ark. 606, 182 S.W. 275; Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 134, 172 S.W. 843; Morrilton Waterworks Imp. Dist. v. Earl, 71 Ark. 4.

In Willis v. City of Fort Smith, supra, we said: "The State has the right to regulate and control the use of motor vehicles except as it has granted such right to other governmental agencies, and it expressly recognizes in the motor vehicle law the exclusive right of municipal corporations to make and enforce rules and regulations for motor vehicles used for public hire."

The motor vehicle law referred to is act 134 of the acts of the General Assembly of 1911, page 94. The purpose of the act, as expressed in its title, is "to provide for the registration of motor vehicles, and uniform rules regulating the use of automobiles and other horseless conveyances upon the public streets, roads and highways of the State of Arkansas." Section 13 of the act provides as follows "No owner of a motor vehicle who shall have obtained a certificate from the Secretary of State, as hereinbefore provided, shall be required to obtain any other license or permits to use and operate the same, nor shall such owner be * * * excluded, or prohibited, or limited in the free use of his said motor vehicle, nor limited as to speed upon any public street, * * * nor be required to comply with other provisions or conditions as to the use of said motor vehicle except as in this act provided." Then follows a provision that nothing in the section shall be construed to apply to or include any speedway created and maintained by the local authority or any municipal corporation within the State. And a further provision that the local authorities having jurisdiction over public parks and boulevards connecting or pertaining thereto shall not be prohibited from enforcing ordinances concerning the speed at which motor vehicles may be operated ...