Desser v. The City of Wichita

• Decision Date: 11 December 1915
• Docket Number: 20,410
• Citation: 153 P. 1194,96 Kan. 820
• Parties: PAUL A. DESSER et al., Appellants, v. THE CITY OF WICHITA et al., Appellees
• Court: Kansas Supreme Court

153 P. 1194

96 Kan. 820

PAUL A. DESSER et al., Appellants, v. THE CITY OF WICHITA et al., Appellees

No. 20,410

Supreme Court of Kansas

December 11, 1915

Decided July, 1915.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. LICENSE TAX--"Jitneys"--Municipal Control of Public Streets. The provision of the ordinance in question requiring those operating any self-propelled vehicles carrying passengers for hire to pay additional licenses of three hundred to four hundred dollars before being permitted to solicit or receive passengers on the paved portions of certain designated streets, although practically prohibitive as to such designated places, is a valid exercise of municipal control.

2. SAME--Benefit to Street Railway Company. That the effect of such ordinance if enforced would involve a benefit to the street railway company is no reason why the city may not prescribe such regulation.

3. SAME--When Courts Should Interfere. Before the courts can interfere with the exercise of legislative power granted to the city to license and regulate such conveyances it must appear that the attempted exercise of such power is flagrantly unjust, unreasonable or oppressive.

Fred Stanley, Claude C. Stanley, and Benjamin F. Hegler, all of Wichita, for the appellants.

James A. Conly, city attorney, Kos Harris, V. Harris, both of Wichita, L. S. Ferry, T. F. Doran, and J. S. Dean, all of Topeka, for the appellees.

West J. Porter, J. dissenting.

OPINION

WEST, J.:

This suit was brought to enjoin the enforcement of an ordinance enacted by the city of Wichita prescribing certain regulations and requiring certain licenses from persons operating jitneys and other motor vehicles. The ordinance is attacked as void because prohibitive and unreasonable.

Without going into unnecessary detail it is sufficient to say that numerous regulations are laid down for the control of the vehicles in question, and a license of $ 25 to $ 35 is required according to their capacity. Section 4, however, requires that before the owners of such vehicles shall be permitted to solicit or receive passengers on or along the paved portions of certain designated streets they shall pay an additional license of $ 300 to $ 400, according to the capacity of the vehicle. It is asserted and we are convinced that as to these specifically designated places the requirement is and doubtless was intended to be practically prohibitive. We find no other feature of the ordinance about which serious question could arise as to reasonableness, and it is convincingly apparent that regardless of this requirement of section 4 the ordinance would have been enacted and would be valid. So the validity of this one provision is the sole question for determination.

It is not only suggested and to some extent proved, as shown by the record, but it is well known that the street-car system in the city of Wichita is one long established, that the company is required to pay taxes, to keep up and maintain its tracks and to submit to such reasonable regulations as may be prescribed for its operation. Its maintenance and continuance involve not only the investment and profit or loss upon a large sum of money but to a great extent the convenience and necessity of the city and its inhabitants. Jitneys and similar vehicles run not upon tracks laid at their owners' expense but upon the public streets, with no burden of providing depots or waiting stations, or outlay except the mere cost of vehicles and their operation. No doubt persons thus operating these conveyances for hire must be classed as and are common carriers. Being such they are of legal necessity subject to regulation and control as are other common carriers of passengers for hire.

The presumption of good intention must be accorded the city in passing the ordinance. The same rules of construction apply as to a statute, and unless clearly void the enactment must be upheld. (Swift v. City of Topeka, 43 Kan. 671, 23 P. 1075; Denning v. Yount, 9 Kan.App. 708, 59 P. 1092.)

That the effect of section 4 is incidentally or necessarily to benefit the street railway company is not the last word to be said. It is of interest quite vital to the municipality that a street-car system not only exist there but that it be able to subsist and furnish proper and needed service. It is not a misuse of power so to legislate that this result can be accomplished, merely because it involves an advantage to the utility in question as well as to the municipality.

There is no attempt to exclude from all the streets. On the contrary, all streets and parts thereof except those thus specially reserved are expressly permitted to be traversed at will.

The constitution vests in the legislature authority to make provision by general law for the organization of cities, towns and villages. (Art. 12, § 5.) This has been held to add nothing to the general grant of legislative power expressed in section 1 of article 2. (Wulf v. Kansas City, 77 Kan. 358, 94 P. 207.) The legislature may rightfully prescribe the powers of a city "subject only to constitutional restrictions." (Roby v. Drainage District, 77 Kan. 754, 759, 95 P. 399.) It can act directly or through some other body. (The State v. Railway Co., 81 Kan. 430, 105 P. 704; The State, ex rel., v. City of Hutchinson, 93 Kan. 405, 410, 144 P. 241.) In pursuance of this power the legislature has conferred on cities authority to do a variety of things.

"To . . . do all other acts in relation to the . . . concerns of the city necessary to the exercise of its corporate or administrative powers." (Gen. Stat. 1909, § 1214, subdiv. 4.)

To adopt all necessary measures for the protection of the traveling public. (§ 1254.) To fix the rate of carriage of persons. (§ 1255.) To vacate and close any street or alley or portion thereof. (§ 1286.) To require the construction of viaducts or tunnels over and under streets or tracks. (§ 1289.) To levy and collect a license tax upon and regulate all occupations conducted in the city "including . . . hackney or livery carriages . . . and all wagons and other vehicles transporting . . . passengers for pay." (§ 998. See, also, § 1334.) To issue bonds for the purpose of purchasing, constructing or extending utilities, including a street railway. (Laws 1913, ch. 123; Senate J. R. No. 15, Laws 1913, p. 199.) To construct viaducts and assess the cost to a street railway company. (Laws 1913, ch. 106.) To acquire title by purchase, gift or condemnation of lands for public feed lots and to have supervision and control thereover. (Laws 1915, ch. 127.) In Kansas City v. Overton, 68 Kan. 560, 75 P. 549, an ordinance was upheld requiring hucksters or hawkers to pay a license of $ 35 a month and a helper or assistant to pay a license of $ 15, and exempting from its operation those who personally sold the produce of their own or leased lands. In Schaake v. Dolley, 85 Kan. 598, 118 P. 80, upholding the validity of the statute authorizing the charter board to refuse a bank charter where it deems that no public necessity therefor exists, it was pointed out that the alleged common-law right to engage in the banking business must be governed by the Wants and conditions of the people, and that it is one of the functions of the legislature to provide such new rules subversive of the common law as it may deem proper for the welfare of society in the changing conditions incident to progress. It was said that to decide the act in question void would be merely to substitute the court's opinion for that of the deliberate judgment of the legislature; further, that the act does not prohibit persons from engaging in the banking business but from needlessly duplicating an established business regardless of the public necessity. The same doctrine applies here. Modern requirements for municipal transportation render it essential that the power to regulate by the governing body be broad. In Telephone Co. v Telephone Association, 94 Kan. 159, 146 P. 324, involving the establishment of a competitive telephone service in a field already occupied, it was suggested in the opinion (p. 165), that a mere rival can have no such interest as will permit it to maintain an action to prevent competition; that such matters are to be controlled by those acting for the public, in that case the Public Utilities Commission, the statute having provided as a matter of public policy that a telephone company, unless a mutual one, will not be authorized to do business until it has obtained a certificate or a license of authority "as a public convenience and necessity within the community where it seeks to do business." (p. 166.) More closely analogous, perhaps, is O'Neal v. Harrison, 96 Kan. 339, 150 P. 551, to the effect that under a statute giving power to make regulations to secure the general health, to prevent and remove nuisances and to compel and regulate the removal of garbage beyond the corporate limits, a city may grant an exclusive right to the highest bidder to remove all the garbage. It was vigorously contended that citizens have a natural or inherent right to remove the garbage from their own premises if they so desire and that discrimination and favoritism were not in contemplation when the power referred to was vested in the municipality. But the court declared that, "The decided weight of authority supports the right of a municipality either itself to take over the conduct of a business, the manner of operating which may affect the public welfare, or to put it entirely in the hands of a single individual or company." (p. 340.) It was also said (p. 342) that while monopolies are against public policy this is a rule of the common law not binding upon ...