Merchants' Transfer & Warehouse Company v. Gates

• Decision Date: 14 October 1929
• Docket Number: 132
• Citation: 21 S.W.2d 406,180 Ark. 96
• Parties: MERCHANTS' TRANSFER & WAREHOUSE COMPANY v. GATES
• Court: Arkansas Supreme Court

21 S.W.2d 406

180 Ark. 96

MERCHANTS' TRANSFER & WAREHOUSE COMPANY v. GATES

No. 132

Supreme Court of Arkansas

October 14, 1929

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor affirmed.

STATEMENT OF FACTS.

Appellants brought this suit in equity against appellees to enjoin them from enforcing against them the provisions of act 62 of the Acts of 1929, which was passed to amend an act of 1927 providing for the regulation, supervision and control of motor vehicles used in the transportation of persons or property for hire, and act 65 of the Acts of 1929, which was passed to amend and codify the laws relating to State highways.

The material facts shown by the record are embodied in the decree of the chancery court, and read as follows:

"The court finds that the plaintiff, Merchants' Transfer Company, operates motor vehicles upon the public streets of the cities of Little Rock and North Little Rock, and upon the public highways of the State, for compensation; that its business is to move household furniture and office equipment to transport baggage to and from the railroad depots in said cities, to move debris from wrecked buildings, and earth excavated from building sites; to deliver packages for large retail stores in the city of Little Rock, and that said plaintiff holds itself out to the public as being engaged in all of these different lines of business, and solicits such business from the public; that said plaintiff does extensive advertising in which it solicits local and long-distance moving, freight and heavy hauling and trunk hauling, within said cities, and to various points over the State; that said plaintiff has reserved the right to reject such customers as it deems advisable, and that it is rare when said plaintiff transfers or hauls merchandise or goods out of the city, yet such business is solicited, and accepted where conditions and terms are satisfactory.

"The court further finds that the Arkansas Transfer Company operates motor vehicles for compensation upon the public streets of Little Rock; that this company has a central station from which taxicabs are sent out on request calls to any and all persons applying for such service; that said taxicabs are operated under a schedule rate as fixed by a meter; that patronage by the public is solicited, but the company reserves the right to reject any passengers it deems advisable; that said company keeps a number of taxicabs at the railway stations in Little Rock and North Little Rock where an attendant solicits patronage from persons arriving at the station, or sends taxicabs to any point in the city in answer to telephone calls.

"The court further finds that the interveners, Healey & Roth, are undertakers, operating motor vehicles upon the roads and highways of the State for compensation; that said interveners make extra charges for motor vehicles carrying passengers to and from the cemetery over and above their regular undertaking charges; that said interveners also operate ambulances for carrying sick and injured persons to hospitals, homes and railway stations, uniform charges being made to all persons who apply for such service; that said interveners have reserved the right to reject any customer they deem advisable; that interveners solicit business from the public by their advertisements, in which they state that they conduct funerals everywhere, and operate private ambulances day or night.

"The court further finds that all of said operators are properly charged with and pay 'for hire' licenses issued by the State Highway Department, and they are licensed as public carriers by the city of Little Rock.

"The court further finds that plaintiff and interveners are motor vehicle carriers for compensation as mentioned and described in act No. 62 of the Acts of the General Assembly of 1929, in all of their operations hereinabove mentioned, except that of delivering packages for the single retail stores of the Gus Blass Company, and the court finds that in all of their operations, with the single exception above mentioned, said plaintiff and interveners are subject to the rules and regulations of the Arkansas Railroad Commission, as promulgated under said act No. 62.

"The court further finds that plaintiff and interveners in all of their operations are operating motor vehicles for compensation, as mentioned and described in act No. 65 of the Acts of the General Assembly of 1929, and they are subject to and required to pay the four per cent. privilege tax as levied and required to be collected by the Commissioner of Revenues of the State of Arkansas under the provisions of said act."

A decree was entered of record in accordance with the findings of the chancery court, and to reverse that decree appellants have prosecuted this appeal.

Decree affirmed.

Robinson House & Moses and Harry E. Meek, for appellant.

Hal L. Norwood, Attorney General, and Walter L. Pope, Assistant, for appellee.

OPINION

HART, C. J., (after stating the facts).

The correctness of the decree of the chancery court depends upon the construction to be given act No. 62, passed by the Legislature of 1929, to amend an act of the Legislature of 1927 providing for the regulation, supervision and control of motor vehicles used in the transportation of persons or property for hire, and act No. 65, passed by the Legislature of 1929, for the purpose of amending and codifying the laws relating to State highways. Acts of 1929, vol. 1, pp. 137 and 264.

In the case of State v. Haynes, 175 Ark. 645, 300 S.W. 380, we had under consideration the act of 1927 providing for the regulation, supervision and control of motor vehicles used in the transportation of persons or property for compensation in the State of Arkansas. The particular part of the statute to be construed in that case was the proviso in subdivision (d) of § 1 of the act, which reads as follows:

"Provided the terms 'motor vehicle' or 'motor-propelled vehicle,' as used in this act, shall only include motor vehicles operating a service between cities or towns." See Acts of 1927, p. 257 et seq.

The court held that the Legislature only intended to place within the jurisdiction of the Arkansas Railroad Commission common carriers operating motor vehicles over a fixed route between cities or towns. It was said that the cities or towns were required to be the termini of the route, but that stations at the termini might be established within the cities or towns, or at reasonable distances without the limits of said cities and towns, for the purpose of receiving and discharging passengers or loading or unloading freight.

In the case of Duncan v. Jonesboro, 175 Ark. 650, 1 S.W.2d 58, it was held that taxicab operators, operating motor vehicles as common carriers between cities or towns under the provisions of the act, which had secured a permit from the Railroad Commission, were not required to have a license from a city which was one of the termini of their fixed route, although most of the revenue was derived from passengers within the corporate limits of such city.

The Legislature of 1929 passed an act to amend the statute of 1927 just referred to, Acts of 1929, vol. 1, p. 137. That act, just as the original act passed in 1927, provided that the terms "improved public highways," wherever used in the act, means every improved public highway in this State, which is or may hereafter be declared to be a part of the State highway system, or a part of any county highway system, or the streets of any city or town. This clause is subdivision (f) of each act.

Subdivision (d) of § 1 of the amendatory act of 1929 reads as follows:

"The term 'motor vehicle carrier,' wherever used in this act, means every corporation or person, or their lessees, trustees or receivers, owning, controlling, operating or managing any motor-propelled vehicle used in the business of transporting persons or property for compensation over any improved public highway in this State. The terms 'motor vehicle' or 'motor-propelled vehicle' as used in this act shall apply to all motor vehicles engaged in transporting passengers or property for compensation over improved public highways of this State."

It will be noted that the amendatory act provides that the term "motor vehicle," as used in the act, shall apply to all motor vehicles engaged in transporting persons or property for compensation over the improved public highways in this State, instead of the proviso in the act of 1927 that a motor vehicle shall only include a motor vehicle operating...