Kenosha Auto Transport Corporation v. City of Cheyenne

• Decision Date: 12 March 1940
• Docket Number: 2128
• Citation: 55 Wyo. 298,100 P.2d 109
• Parties: KENOSHA AUTO TRANSPORT CORPORATION v. CITY OF CHEYENNE
• Court: Wyoming Supreme Court

100 P.2d 109

55 Wyo. 298

KENOSHA AUTO TRANSPORT CORPORATION v. CITY OF CHEYENNE

No. 2128

Supreme Court of Wyoming

March 12, 1940

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by the Kenosha Auto Transport Corporation against the City of Cheyenne to enjoin the defendant from enforcing against the plaintiff an ordinance providing for the regulation and supervision of motor caravans. From a judgment dismissing the action, the plaintiff appeals.

Affirmed.

For the appellant, there was a brief and an oral argument by George F. Guy of Cheyenne.

The ordinance is unconstitutional as applied to the facts disclosed by the evidence. The ordinance operates as a discrimination against the plaintiff in that it has not been enforced against commercial trucks. The ordinance transcends the limits of police power delegated to municipalities by Section 22-1918, R. S. The fees imposed by the ordinance are unreasonable. Cooley, Const. Lim., 4th Ed., p. 241; Kruse v. Johnson, 2 Q. B. 91; 9 Amer. Jur. 457. As to the unreasonableness of the ordinance, we call attention to Section 21, Chapter 121 of the Session Laws of 1937, which provides that the fee therein assessed against caravans shall be in lieu of all other taxes and assessments. 43 C. J. 215. The ordinance is a violation of interstate commerce. Article I, Section 8, paragraph 3 of the United States Constitution. Robbins v. Shelby Taxing District, 120 U.S. 489; Kelley v. Rhoads, 7 Wyo. 237; McQuillin Secs. 253, 260 and 265; 11 Amer. Jur. 1002; Comm. v Duke, 266 U.S. 570; Clark v. Poor, 274 U.S. 554; Hinckin v. Cooney, 290 U.S. 169; Morf v. Ingels, 300 U.S. 290. The lower court erred in sustaining the demurrer to the plaintiff's first amended petition. The enforcement of the ordinance is an unjust discrimination against plaintiff. The ordinance is a gross abuse by the city of legitimate power. The fees exacted are an unlawful burden on interstate commerce.

For the respondent, there was a brief by H. B. Henderson, Jr., and oral arguments by H. B. Henderson, Jr. and John U. Loomis, both of Cheyenne.

The ordinance applies to the operations of appellant as described in its first amended petition. The intent of the ordinance is to be ascertained by reading it according to the natural import of the language, without resorting to forced construction. Board of Commissioners v. Blakely, 20 Wyo. 259. The word "trailing," appearing in the ordinance, is defined by 63 C. J. 763, Note 4; State v. Smith, 59 N.W. 545; Kellaher v. Portland (Ore.) 112 P. 1076. Appellant's operations come within the terms of the ordinance. State Board of Equalization v. Young's Market Company, 299 U.S. 59. The enforcement of the ordinance against appellant does not discriminate against it, in violation of the Fourteenth Amendment to the United States Constitution. Clark v. Gray, 83 L.Ed. 736. Arguments and statements of the pleader's conclusions add nothing to the ultimate facts. State v. Irvine, 14 Wyo. 318; Villalpando v. Cheyenne (Wyo.) 65 P.2d 1108; Ricketts v. Crewdson, 13 Wyo. 284; Bunten v. Grazing Assn., 29 Wyo. 461; Edwards v. Cheyenne, 19 Wyo. 110; Pierce Oil Corporation v. City of Hope, 248 U.S. 498; Keokee Coke Co. v. Taylor, 234 U.S. 224; Sproles v. Binford, 286 U.S. 374. By its admissions, appellant justifies the classification made by the ordinance, and the inclusion of appellant within it. State v. Sherman, 18 Wyo. 169; Lindsley v. Gas Company, 220 U.S. 61; Bain Peanut Company v. Pinson, 282 U.S. 499; Patsone v. Pennsylvania, 232 U.S. 138; Extract & Tonic Co. v. Lynch, 226 U.S. 192; Euclid v. Ambler Realty Co., 272 U.S. 365. The rule has been applied in a wide variety of circumstances. Hebe Co. v. Shaw, 248 U.S. 297; Kentucky Whip & Collar Co. v. Illinois Central R. R. Co., 299 U.S. 334; Holyoke Water Power Co. v. American Writing Paper Co., 300 U.S. 324; United States v. Carolene Products Company, 304 U.S. 144. The ordinance is reasonable and is within city's power. Sec. 22-1901-31, R. S. 1931; State v. Lamaureux, 3 Wyo. 731; City v. Litman, 32 Wyo. 14; Solberg v. Davenport (Iowa) 232 N.W. 477; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; Armstrong v. Moving Co. (Colo.) 268 P. 978. Plaintiff alleges no facts to show unreasonableness of ordinance. Steph. Pl. (2d Ed.) No. 198; Michigan Central R. R. Co. v. Carr (Ill.) 135 N.E. 881. The City of Cheyenne is endowed with broad powers by its charter. Article XXIV, Sec. 22-1918, R. S.; Southern Utilities Co. v. Palatka (Fla.) 99 So. 236; Treadwell v. Beebe (Kan.) 190 P. 768; Ex parte Sloan (Nev.) 217 P. 233; Roseberg v. State (Md.) 74 A. 581; State v. Otis (Ohio) 120 N.E. 313. The State of Wyoming has power to require motor vehicles used in interstate commerce to pay a fee for such privilege. Hendrick v. Maryland, 235 U.S. 610; Tomlinson v. Indianapolis (Ind.) 43 N.E. 9. And the same power is possessed by the City of Cheyenne. St. Louis v. Western Union Telegraph Company, 148 U.S. 92. The ordinance is not affected by the enactment of Chapter 121 of the Session Laws of 1937. The compensatory fee required of operators of towing motor vehicles is in lieu of other compensatory fees. The ordinance does not violate the commerce clause. Art. I, Sec. 8, Cl. 3 of the Constitution. The power asserted by the City is sustained by the following: Clark v. Gray, 83 L.Ed. 736; Morf v. Bingaman, 298 U.S. 407; Transit Co. v. Georgia Public Service Commission, 295 P. S. 285; Hicklin v. Coney, 290 U.S. 169; Interstate Busses Corp. v. Blodgett, 276 U.S. 245; Clark v. Poor, 274 U.S. 554; Kane v. New Jersey, 242 U.S. 160; Hendrick v. Maryland, 235 U.S. 610; Huse v. Glover, 119 U.S. 543; Transportation Company v. Parkersburg, 107 U.S. 691; St. Louis v. Western Union Telegraph Co., 148 U.S. 92. The case of Ingels v. Morf, cited by appellant, is not applicable under the facts. The case of Morf v. Bingaman, supra, answers most of appellant's contentions.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought for the purpose of enjoining the City of Cheyenne of this state from enforcing against the plaintiff its Ordinance No. 530, adopted June 24, 1935, which provides for the regulation and supervision of motor caravans. Section 1 of the ordinance is as follows:

"For the purpose of this Ordinance, a Motor Caravan transporting automobiles through the City of Cheyenne shall be defined as any group of cars or trucks trailing or carrying new or second-hand automobiles to a destination outside of the City of Cheyenne and passing over the streets of said City. A group of cars or trucks is defined as one or more of such vehicles trailing or carrying new or second-hand automobiles destined for points outside of the City of Cheyenne."

Section 2 provides that it shall be unlawful for any caravan as defined in the ordinance to pass over the streets of Cheyenne without first obtaining a permit. The permits are of two classes, and are issued "to cover the expense of regulation, control and supervision of said caravans." One of the permits is one without parking privileges, for which a charge of one dollar is exacted for each automobile transported through the city. The second class of permits is one with parking privileges, for which a fee of two dollars is exacted for each car which is towed or transported through the city, the permit lasting for the period of twelve hours. No complaint, however, is made with reference to this class, since, it seems, plaintiff does not park in the city. The only complaint herein is as to the fee of one dollar mentioned as above stated. Section 2 of the ordinance further provides that "no permit shall include a charge for the motor vehicle occupied and driven by the manager or other chief officer of the caravan, provided such motor vehicle is his personal property and not being moved through the City of Cheyenne for the purpose of sale." It would, accordingly, seem that the ordinance is directed to towing motor vehicles driven through the City of Cheyenne for the purpose of sale outside of the limits of the city. Section 4 of the ordinance provides that it is enacted for the protection of the public safety and for the protection of the citizens of the City of Cheyenne in the use and enjoyment of its thoroughfares. Section 5 provides that any person or corporation violating the provisions of the ordinance shall be deemed guilty of a misdemeanor and fined not to exceed $ 100 for each offense.

The amended petition filed herein alleges that plaintiff is a corporation organized under the laws of the State of Wisconsin; that it is engaged in interstate commerce in the highway transportation and delivery of trucks and motor cars that it delivers such cars to various points in the United States; that it drives many trucks and cars across the highways of the State of Wyoming and through the City of Cheyenne, which is located on one of the main highways east and west; that plaintiff's operations are to be distinguished from the usual caravan operations, since plaintiff does not transport automobiles and trucks by long trains or caravans; that plaintiff uses three different methods of transporting these cars and trucks, namely, by straight towing, saddle-mount towing, and full-mount towing; that

"under the first or 'straight towing' method, two vehicles are coupled together, the first one doing the towing and the second vehicle being towed; that under the second or saddle-mount method, the front wheels were removed from the vehicle that is being towed and the front end thereof is elevated on and fastened to the rear end of the towing or power unit; that under the third or 'full-mount' method, one smaller vehicle is carried on the power unit as cargo and the third unit is towed by the...