Cutrona v. The Mayor and Council of Wilmington

• Decision Date: 28 November 1924
• Citation: 127 A. 421,14 Del.Ch. 434
• Court: Court of Chancery of Delaware
• Parties: SAMUEL CUTRONA, trading as Wilmington-New Castle Bus Line, Complainant Below, Appellant, v. THE MAYOR AND COUNCIL OF WILMINGTON, a Municipal Corporation of the State of Delaware. Defendant Below, Appellee

127 A. 421

14 Del.Ch. 434

SAMUEL CUTRONA, trading as Wilmington-New Castle Bus Line, Complainant Below, Appellant, v. THE MAYOR AND COUNCIL OF WILMINGTON, a Municipal Corporation of the State of Delaware. Defendant Below, Appellee

Court of Chancery of Delaware

November 28, 1924

APPEAL FROM COURT OF CHANCERY. The Street and Sewer Department of the City of Wilmington adopted an ordinance or resolution on the thirty-first day of March, 1922, entitled "A Resolution Fixing the Terms and Conditions under Which Motor Busses may Operate on and over the Streets of the City of Wilmington and Providing Penalties for Violation."

This resolution, among other things, makes it unlawful "for any person, either as principal or as agent, servant or employee, to use or occupy, for the purpose of operating a motor bus thereon, any street within the City of Wilmington without first obtaining a permit to do so."

It defines "motor bus" to "mean and include every mechanically propelled vehicle, not operated on rails or fixed tracks, which is used or engaged in the transportation of persons for hire"; specifically excluding, however certain kinds or classes of vehicles, none of which are material to the consideration of this case and which therefore, need not be enumerated.

It further provides that an application for a permit to operate a motor bus shall be made to the Board of Directors of the Street and Sewer Department of the city, and that said application shall be accompanied by a map of the route proposed to be used by the applicant; the termini of such proposed route and certain other information with respect to the number of busses intended to be used, their make arrangements, capacity, the proposed schedule, etc. No fee or charge is exacted for such permit.

It also provides that--

"Upon the filing of such application, it shall be given consideration by said Board at its next regular meeting. If such application be granted, said board shall issue such permit after the filing of the liability insurance policy hereinafter provided for."

The provisions of such liability insurance policy are set forth in detail.

By amendment to said resolution or ordinance passed October 16, 1922, the Board of Directors of the Street and Sewer Department is authorized in its "absolute discretion" to--

"suspend temporarily or * * * revoke the permit granted to any person hereunder, whenever such person or any driver or conductor of such motor bus, or any other servant, agent or employee of such person, shall be found by said Board to have violated any of the provisions of this resolution or of any ordinance of the City of Wilmington, Delaware, or of any resolution of the said Board regulating traffic upon or the use of the streets of the said city, or the use or operation of any motor bus thereon or for such other reason as to the said Board may seem sufficient.

"Whenever a permit shall be so revoked, no new permit shall be issued to such person until the expiration of at least one year from the date of said revocation."

Certain requirements as to the equipment, operation and maintenance of motor busses and certain traffic regulations are specifically set forth in the resolution and penalties in case of conviction by the Municipal Court of the violation of any of its provisions are also inserted.

On the nineteenth day of June, 1919, pursuant to Chapter 127, Volume 30, Laws of Delaware, and, therefore, prior to the adoption of the above resolution, the City Council had passed an ordinance requiring the payment of a yearly license by every person operating a motor vehicle and charging fees for the transportation of passengers within the City of Wilmington; said license to be operative for one year from the first day of July of the year in which it should be issued.

Cutrona, the complainant below, the appellant in this court, applied to the City Council of Wilmington in February, 1922, and secured such license for the three busses owned and intended to be operated by him between the City of Wilmington and the town of New Castle. He also secured such licenses prior to June 1st of that year and annually thereafter.

Pursuant to applications from the appellant, the Board of Directors of the Street and Sewer Department also granted him permits to operate such busses on certain streets in the City of Wilmington in carrying passengers to and from the town of New Castle and to and from intermediate points during the year 1922.

Like permits were granted to him by the same Board for the year 1923, expiring on December 31st of that year. All of these permits were pursuant to and specifically referred to the resolution of the Street and Sewer Department of March 31, 1922.

A permit to operate an additional or fourth bus on the same route was also granted February 27, 1923, but this permit was surrendered to the Street and Sewer Department in November, 1923. These facts were admitted.

The evidence taken in the court below is not included in the record, but it appears from a stipulation of counsel sent up with the record that during the year 1923 the inspector of the Street and Sewer Department observed various infractions of the regulations of that Department by the persons operating the busses of the appellant, particularly with respect to overcrowding and deviation from the prescribed route for the purpose of delivering passengers.

It also appears that these matters were brought to the attention of the Board at its meeting of July 10th and September 18th, 1923, on both of which occasions the appellant, Cutrona, was warned that his permits would be revoked if there were further violations of the regulations of the Department; but there is nothing to show that there was any hearing before the Board or any specific findings by it.

It further appears that certain operators or drivers of the appellant's busses were convicted on several occasions in the years 1922 and 1923 of violating the State Traffic Laws, but none of these offenses were committed in the City of Wilmington or had any relation to the regulations of the Street and Sewer Department or to the ordinances of the city.

Cutrona, the appellant, was, however, convicted on the fourth day of January, 1924, of violating the regulations of the Street and Sewer Department.

It is also admitted that the appellant duly applied in the month of November, 1923, for renewals, for the year 1924, of the permits under which the three busses then operated by him were being run, and that on or about the third day of January, 1924, he received the following letter from the Street and Sewer Department, dated January 2, 1924, refusing to grant his applications:

"The Board of Directors of this Department, at their regular meeting held December 31, 1923, considered your application for renewal operating bus permits for 1924 for your three busses to operate over certain streets of this city in connection with the operation of a public motor bus line between Wilmington and New Castle, Delaware.

"The subject of renewing your operating permits has been given long and serious thought by this Board, and it is the unanimous opinion of the Board, that, on account of the number and the seriousness of the reports and charges made to this Department against the reckless and unlawful manner in which the busses of your line have been operated during the past year, for the best interest of the traveling public, your operating permits should not be renewed, and you are hereby notified that your 1923 operating permits are extended until January 15, 1924, at which date said operating permits for the City of Wilmington will be revoked."

The agreement of counsel above referred to also shows that the busses operated by the appellant were of the type ordinarily used for such purpose and that all State laws, with respect to procuring operator's licenses, public service permits, etc., for the year 1924 had been duly complied with before January 1st of that year and before the action of the Street and Sewer Department, in refusing his application for permits for that year.

On January 14, 1924, Cutrona, the appellant, filed a bill in equity against the City of Wilmington, seeking to enjoin it from enforcing the above mentioned resolution of the Board of Directors of the Street and Sewer Department against him.

There was no allegation or proof of fraud and after a hearing on bill, answer and testimony, the Chancellor dismissed the bill. See ante p. 208. Cutrona appealed from the decree of the Chancellor to this court and filed the following assignments of error:

"1. That the Court below erred in dismissing the bill of complaint filed in said cause, and in dissolving the temporary injunction theretofore issued in said cause.

"2. That the Court below erred in refusing to issue a permanent injunction against the respondent below, appellee, as prayed for in the bill of complaint.

"3. That the Court below erred in refusing to issue a mandatory injunction to the Board of Directors of the Street and Sewer Department, as prayed for in the bill of complaint.

"4. That the Court below erred in holding that the resolution of the Board of Directors of the Street and Sewer Department of March 31, 1922, as amended on October 16, 1923, was valid.

"5. That the Court below erred in holding that the said resolution, as amended, was reasonable."

Decree of the court affirmed.

Ayres J. Stockly and Clarence A. Southerland, for the appellant.

Caleb S. Layton, City Solicitor, for the appellee.

PENNEWILL, C. J., and RICE, HARRINGTON, RICHARDS and RODNEY, J. J., sitting.

OPINION

HARRINGTON, J.

The facts show that the Street and Sewer Department neither suspended nor revoked appellant's permits to operate his busses over the...