Commonwealth v. O'Neil

Decision Date09 October 1919
Citation233 Mass. 535,124 N.E. 482
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Report from Superior Court, Berkshire County; Nelson P. Brown, Judge.

Thomas O'Neil was prosecuted for violating an ordinance of the city of Pittsfield, by using or driving an automobile for hire without a license. Defendant's motion for directed verdict of not guilty was denied, and verdict of guilty was directed, and defendant excepts. By joint request of counsel, case is reported to the full bench of the Supreme Judicial Court. Verdict set aside, and defendant directed to be discharged.Joseph B. Ely, Dist. Atty., of Springfield, and Jos. M. McMahon, Asst. Dist. Atty., of Pittsfield, for the Commonwealth.

James Fallon, of Pittsfield, for defendant.


This is a complaint charging the defendant with using or driving an automobile for the conveyance of persons for hire without a license, contrary to the terms of an ordinance of the city of Pittsfield. That ordinance amongst other matters prohibits any person from using or driving an automobile for the transportation of persons for hire from place to place within the city without a license from the mayor and board of aldermen, which may be subject to such conditions as the licensing officers ‘may deem expedient and may be revoked at their discretion,’ and imposes a penalty for violation of its provisions. The agreed facts show that the defendant at the time alleged operated a motor vehicle, making a daily trip from the Ten Eyck Hotel in Albany, in the state of New York, to the Wendell Hotel in Pittsfield, in out county of Berkshire, and return, carrying passengers for hire accepted only for the entire trip between these two points. He had no such license as the ordinance required. The defendant contends that he was engaged in interstate commerce exclusively, and hence that a verdict of not guilty ought to have been directed.

[1] It is plain that the business in which the defendant was engaged was exclusively interstate commerce.

‘From an early day such commerce has been held to include the transportation of persons and property no less than the purchase, sale and exchange of commodities.’ United States v. Hill, 248 U. S. 420, 423, 39 Sup. Ct. 143, 144 (63 L. Ed. 337).

It becomes necessary to examine decisions respecting the legitimate field of police regulations affecting interstate commerce, and to determine the scope and meaning of the ordinance in the light of such permanent principles as have been established.

It was held in Commonwealth v. People's Express Co., 201 Mass. 564, 88 N. E. 420,131 Am. St. Rep. 416, that a statute requiring a local license for the transportation of intoxicating liquors into a city or town, in which licenses of the first five classes for the sale of intoxicating liquor were not granted, by any person or corporation other than a railroad or street railway corporation would be unconstitutional if construed as applicable to interstate commerce. It, therefore, was decided that the intent of the Legislature was to restrict its operation to intrastate commerce, as to which it was valid.

In Adams Express Co. v. New York, 232 U. S. 14, 34 Sup. Ct. 203, 58 L. Ed. 483, one point raised was whether an ordinance of the city of New York which prohibited the exercise of the business of ‘expressmen’ except under an annual license granted by the mayor and revocable by him, would be valid if held applicable to interstate business. It was said, at page 31 of 232 U. S., at page 207 of 34 Sup. Ct. (58 L. Ed. 483), that, if the provisions of the ordinance--

‘be deemed to require that a license must be obtained as a conditionprecedent to conducting the interstate business of an express company, we are of the opinion that so construed they would be clearly unconstitutional. It is insisted that, under the authority of the state, the ordinances were adopted in the exercise of the police power. But that does not justify the imposition of a direct burden upon interstate commerce. Undoubtedly, the exertion of the power essential to assure needed protection to the community may extend incidentally to the operations of a carrier in its interstate business, provided it does not subject that business to unreasonable demands and is not opposed to federal legislation. * * * It must, however, be confined to matters which are appropriately of local concern. It must proceed upon the recognition of the right secured by the federal Constitution. Local police regulations cannot go so far as to deny the right to engage in interstate commerce, or to treat it as a local privilege and prohibit its exercise in the absence of a local license. Crutcher v. Kentucky, 141 U. S. 47, 58 [11 Sup. Ct. 851, 35 L. Ed. 649];Robbins v. Shelby County Taxing District, 120 U. S. 489, 496 [7 Sup. Ct. 592, 30 L. Ed. 694];Leloup v. Mobile, 127 U. S. 640, 645 [8 Sup. Ct. 1380, 32 L. Ed. 311];Stoutenburgh v. Hennick, 129 U. S. 141, 148 [9 Sup. Ct. 256, 32 L. Ed. 637];Rearick v. Pennsylvania, 203 U. S. 507 [27 Sup. Ct. 159, 51 L. Ed. 295];International Text Book Co. v. Pigg, 217 U. S. 91, 109 [30 Sup. Ct. 481, 54 L. Ed. 678,27 L. R. A. (N. S.) 493,18 Ann. Cas. 1103];West v. Kansas Natural Gas Co., 221 U. S. 229, 260 [31 Sup. Ct. 564, 55 L. Ed. 716,35 L. R. A. (N. S.) 1193];Buck Stove Co. v. Vickers, 226 U. S. 205, 215 [33 Sup. Ct. 41, 57 L. Ed. 189];Crenshaw v. Arkansas, 227 U. S. 389 [33 Sup. Ct. 294, 57 L. Ed. 565];Minnesota Rate Cases, 230 U. S. 352, 401 [33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18]. As was said by this court in Crutcher v. Kentucky, 141 U. S. 58 [11 Sup. Ct. 851, 35 L. Ed. 649]: ‘A state law is unconstitutional and void which requires a party to take out a license for carrying on interstate commerce, no matter how specious the pretext may be for imposing it.’'

Arguments that that ordinance might be upheld as imposing a fee for the use of streets, as based on the nature of the business, or as inspection charges, were summarily disposed of as inapposite or inadequate. To the same effect is United States Express Co. v. New York, 232 U. S. 35, 34 Sup. Ct. 209, 58 L. Ed. 492. In Sault Ste. Marie v. International Transit Co., 234 U. S. 333, 34 Sup. Ct. 826, 58 L. Ed. 1337,52 L. R. A. (N. S.) 574, the appellant city passed an ordinance requiring a license for the operation of a ferry ‘across the St. Mary's river to the opposite shore’ in the province of Ontario. It was held that the action of the city ‘in requiring the appellee to take out a license, and to pay a license fee, for the privilege of transacting the business conducted at its wharf,’ of maintaining an office and receiving fares for passage upon steam ferry boats which touched there for the purpose of receiving and discharging passengers and freight, ‘was beyond the power which the state could exercise either directly or by delegation.’ It was said at page 341 of 234 U. S., at page 828 of 34 Sup. Ct. (58 L. Ed. 1337,52 L. R. A. [N. S.] 574):

‘The fundamental principle involved has been applied by this court in recent decisions in a great variety of circumstances, and it must be taken to be firmly established that one otherwise enjoying full capacity for the purpose cannot be compelled to take out a local license for the mere privilege of carrying on interstate or foreign commerce.’

On the other hand a large group of laws, general in their operation and affecting interstate commerce only incidentally, are not unconstitutional. Wilmington Transportation Co. v. California Railroad Commission, 236 U. S. 151, 35 Sup. Ct. 276, 59 L. Ed. 508;Postal Telegraph-Cable Co. v. Richmond, 249 U. S. 252, 258, et seq., 39 Sup. Ct. 265, 63 L. Ed. 590;Atlantic Coast Line Railroad Co. v. Georgia, 234 U. S. 280, 34 Sup. Ct. 829, 58 L. Ed. 1312;Denver & Rio Grande Railroad Co. v. Denver, 250 U. S. 241, 246, 39 Sup. Ct. 450, 63 L. Ed. 958;Port Richmond Ferry v. Hudson County, 234 U. S. 317, 34 Sup. Ct. 821, 58 L. Ed. 1330;Commonwealth v. Moore, 214 Mass. 19,100 N. E. 1017. See cases collected in Commonwealth v. People's Express Co., 201 Mass. 564, at page 578, 88 N. E. 420,131 Am. St. Rep. 416. See, as to automobiles, Commonwealth v. Newhall, 205 Mass. 344, 91 N. E. 206;Commonwealth v. Gile, 217 Mass. 18, 104 N. E. 572. See, also, Commonwealth v. Closson, 229 Mass. 329, 118 N. E. 653, L. R. A. 1918C, 939.

Two recent decisions of the United States Supreme Court approach nearest, among this class of adjudications, to the case at bar. An attack was made in Hendrick v. Maryland, 235 U. S. 610, 35 Sup. Ct. 140, 59 L. Ed. 385, upon a statute, general in scope and applicable alike to all owners or users of automobiles or motor vehicles, which required registration and a fee roughly proportioned to the horse power of the vehicle. No person was permitted to drive a car unless licensed after payment of a fee. Other sections related to speed, the law of the road, accidents, signals and kindred matters. Exceptions were made for the benefit of nonresident owners or operators under specified limitations. The fees confessedly were for revenue and not merely to cover inspection charges. In the course of an opinion sustaining the constitutionality of the statute, it was said (235 U. S. at page 622, 35 Sup. Ct. at page 142 ):

‘The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves. Their success depends on good roads the construction and maintenance of which are exceedingly expensive; and in recent years insistent demands have been made upon the state for better facilities, especially by the ever-increasing number of those who own such vehicles. As is well known, in order to meet this demand and accommodate the growing traffic the state of Maryland has built and is maintaining a system of improved roadways. Primarily for the enforcement of good order and the protection...

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