McGill et al. v. City of St. Joseph

• Decision Date: 04 May 1931
• Docket Number: No. 17143.,17143.
• Citation: 38 S.W.2d 725
• Parties: CHARLES McGILL ET AL., RESPONDENTS, v. CITY OF ST. JOSEPH, APPELLANT.
• Court: Missouri Court of Appeals

38 S.W.2d 725

CHARLES McGILL ET AL., RESPONDENTS, v. CITY OF ST. JOSEPH, APPELLANT.

No. 17143.

Kansas City Court of Appeals. Missouri.

May 4, 1931.

Appeal from the Circuit Court of Buchanan County. — Hon. J.V. Gaddy, Judge.

REVERSED AND REMANDED (with directions).

Richard M. Duncan and Mayer, Conkling & Sprague for appelant.

B.M. Lockwood, Alva F. Lindsay and Phillip Slattery for respondents.

CAMPBELL, C.

Plaintiffs were engaged in operating taxicabs for hire upon the streets of St. Joseph, a city of the first class. The city, on June 14, 1929, passed an ordinance which provides that no one shall operate a taxicab for hire upon its streets unless there is affixed thereto a taximeter that will show the fare charged for service, nor operate a taxicab for hire upon its streets without filing with the city treasurer an indemnity bond or policy of liability insurance in the amount specified in the ordinance, and conditioned for the payment of final judgments for personal injury or property damaged.

There are other provisions in the ordinance not necessary here to mention. Plaintiffs, claiming that the cited provisions of said ordinance are unreasonable and void and in derogation of the Motor Vehicle Act, Laws 1921, Extra Session, pages 76-106, brought suit to enjoin defendant from enforcing said ordinance.

The answer is a general denial and an averment that the ordinance was duly passed and became effective June 25, 1929, and that defendant was attempting to enforce the same against persons affected thereby.

The cause was tried resulting in a decree that the said provisions of the ordinance are unreasonable, invalid and in derogation of the Motor Vehicle Act. The defendant appealed.

Plaintiffs' evidence tends to show that they were engaged in operating a number of taxicabs for hire upon defendant's streets; that to install a taximeter would cost per cab about $200 and that the value of the cab would be decreased thereby; that in order to obtain a bond or liability policy it was necessary for them to establish financial responsibility; that underwriters recognize the taxicab business as extremely dangerous and hazardous to the public and for that reason will not write liability insurance on taxicabs unless security is given or the applicant is exceptionally well rated.

Two questions are presented, namely; (1) Is that part of the ordinance unreasonable which provides for the installation of taxi-meters and the procuring of indemnity bonds or policies of liability insurance? (2) Is the ordinance in derogation of an act of the General Assembly of 1921 relating to motor vehicles? [Pages 76-106 inclusive, Extra Session.]

As to the first of these questions we experience no difficulty.

Plaintiffs proceed upon the theory that they may conduct upon defendant's streets an "extremely dangerous and hazardous" business, one so dangerous to the public that bonds or policies of insurance conditioned that they will pay the damages caused by their wrongful conduct, cannot be obtained.

On this subject the plaintiffs content themselves by saying that the said provisions of the ordinance "are unreasonable and void under the evidence in this case." No authority is cited to support the assertion and we have found none.

The rule is that the courts will not declare an ordinance unreasonable unless "no difference of opinion can exist upon the question. A clear case must be made to authorize the court to interfere on that ground." [Wagner v. St. Louis, 284 Mo. 410, 417, 224 S.W. 413.]

The Supreme Court of the United States in Packard v. Benton, 44 Sup. Ct. R. 257, considered a statute containing quite similar provisions and said:

"The streets belong to the public, and are primarily for the use of the public in the ordinary way. Their use for the purposes of gain is special and extraordinary, and generally, at least, may be prohibited or conditioned as the Legislature deems proper... . It is asserted that the requirements of the statute are so burdensome as to amount to confiscation, and, therefore, to result in depriving appellant of his property without due process of law... . The fact that, because of circumstances peculiar to him, appellant was unable to comply with the requirements as to security without assuming a burden greater than that generally borne, or excessive in itself, does not militate against the constitutionality of the statute. Moreover, a distinction must be observed between the regulation of an activity which may be engaged in as a matter of right, and one carried on by governmental sufferance or permission. In the latter case the power to exclude altogether generally includes the lessor power to condition, and may justify a degree of regulation not admissible in the former."

There are many cases in the books, some of them dealing with a statute and some of them with an ordinance, the provisions of which are substantially the same as the ordinance in question, and all of them hold that said provisions are not unreasonable. [Green v. San Antonia, 178 S.W. 6; State v. Barbalais, 64 Atl. 881; Kent Cab Company v. Louisville, 18 S.W. (2d) 992; Melconian v. Grand Rapids, 188 N.W. 521; Gaddock v. San Antonio, 198 S.W. 634; Dickey v. Davis, 85 S.W. 781; State v. Seattle, 156 Pac. 873; Hazleton v. Atlanta, 87 S.E. 1043; New Orleans v. Le Blanc, 71 So. 248; Huston v. Des Moines, 156 N.W. 883; Commonwealth v. Theberge, 121 N.E. 30; Ex parte Parr, 200 S.W. 404.] Numerous other cases announce the same doctrine. Said provisions are not unreasonable.

It seems to be tacitly conceded that if the ordinance is not unreasonable, and we have determined it is not, defendant would possess the power to pass the same unless deprived thereof by the provisions of the Motor Vehicle Act of 1921.

The Legislature by section 7674, Revised Statutes 1919, delegated police power to defendant.

The ordinance is clearly within that power. City of St. Louis v. Hammond, 199 S.W. 411; Ex parte Louis Lerner, 281 Mo. 18, 25, 218 S.W. 331, authorities supra.]

Plaintiffs contend that the power to pass the ordinance was abrogated by said Motor Vehicle Act.

Defendant argues that the statute was enacted for the purpose of regulating motor vehicles generally in their ordinary use; that the ordinance was passed for the purpose of regulating the business of a common carrier carried on upon its streets; that the statute is silent upon the question of defendant's power to control the use of its streets and to pass other needful ordinances allowed by the terms of its said charter and that silence is not conflict. It has been said: "In order to be a conflict of any kind, two things must of necessity exist, and when it is contended that there is a conflict between two laws both must contain either express or implied provisions which are inconsistent and irreconcilable with each other. If either is silent where the other speaks, there can be no conflict between them." [St. Louis v. Klausmeier, 213 Mo. 119, 127; 112 S.W. 516.]

It cannot be said that the act expressly abrogates the police power of municipalities to "have control and power over the streets." If that result was accomplished it was by implication only. It is well settled "that repeals by implications are not to be favored... . In other words, it must not be supposed that the Legislature intended by a later statute to repeal a prior one on the same subject, unless the last statute is so broad in its terms and so clear and explicit in its words as to show that it was intended to cover the whole subject, and, therefore, to displace the prior statute." [State ex inf. v. Amick, 247 Mo. 271, 290, 152 S.W. 591.]

In the case Kane v. Kansas City, 112 Mo. 34, 39, 20 S.W. 532, the court said: "It is a recognized rule of rational interpretation of laws that, where two interfere in their application to particular facts, we should follow that which is recommended by the most beneficial reason... . It is proper to inquire into the consequences of any proposed interpretation of a law in determining what was the probable intention in its enactment... . That the letter of a statute must occasionally be cut down to conform to its evident spirit and intent is a maxim of interpretation which is not new in Missouri." In the interpretation of laws it is the duty of all courts to ascertain the intention of the lawmaking power. "To gather that intention, the courts are not confined exclusively to the consideration of the immediate statute in question, but may look to other legislation in pari materia." [Manker v. Faulhaber, 94 Mo. 430, 442, 6 S.W. 372.] A statute should not be construed as if it stood alone and complete in itself. [Glaser v. Rothschild, 120 S.W. 1.] And where two statutes are susceptible of a construction that will give force to both, they must be so construed. [State ex rel. v. Clayton, 126 S.W. 506.]

Sec. 2 of the Motor Vehicle Act of 1921, p. 76, provides the act shall be exclusively controlling on ... regulations, operation ... of motor vehicles, their use on public highways ... "and all laws, ordinances, or regulations of municipal corporations or political subdivisions in conflict, inconsistent with, or contrary to the provisions of this act shall be void except as herein otherwise expressly provided."

Section 24 provides that municipalities may, by ordinance, establish speed regulations for motor vehicles, make additional rules of the road, establish one way streets... . "No ordinance shall be valid which contains provisions contrary to or in conflict with this act, except as herein provided."

Section 31 provides that all laws inconsistent or in conflict with any of the provisions of the Act are repealed and "this act shall nullify and supersede all ordinances of municipalities contrary to, inconsistent or in conflict with any of the provisions hereof."

Much stress is placed upon the provisions of the act to the effect that all ordinances in conflict, inconsistent with, or...