North Little Rock Transportation Company, Inc. v. City of North Little Rock

• Decision Date: 27 November 1944
• Docket Number: 4-7446
• Citation: 184 S.W.2d 52,207 Ark. 976
• Parties: North Little Rock Transportation Company, Inc., v. The City of North Little Rock
• Court: Arkansas Supreme Court

184 S.W.2d 52

207 Ark. 976

North Little Rock Transportation Company, Inc., v. The City of North Little Rock

No. 4-7446

Supreme Court of Arkansas

November 27, 1944

Appeal from Pulaski Circuit Court, Second Division; Lawrence C Auten, Judge.

Reversed.

Barber Henry & Barber, for appellant.

House Moses & Holmes, Horace Jewell and Glenn Zimmerman, for appellee.

OPINION

McFaddin, Justice.

This appeal is the continuation of an attack on the constitutionality of §§ 7 and 8 of Act 213 of the General Assembly of 1939. The appellant is an Arkansas corporation organized with the hope and expectation (as yet unrealized) of hauling passengers for hire in North Little Rock, which is a city of the first class, and is one of the appellees. The Checker Cab Company, also an appellee, is, and was at all times herein mentioned, engaged in hauling passengers for hire in North Little Rock, and is resisting the desire of the appellant to engage as a competitor.

On May 24, 1943, appellant, pursuant to §§ 1 to 6, inclusive, of said Act 213, filed its application with the city officials of North Little Rock for a permit to engage in the taxicab business in said city, and offered full compliance with the municipal ordinance (No. 950) of the city. The application was heard by the city council, with Checker Cab Company protesting issuance of the permit. Many witnesses testified, and the entire proceedings were duly transcribed and preserved. The city council found that there was need for additional taxicab service, and referred the matter to a committee of the council to decide the extent of the needed improvement in service. The council later approved the recommendation of the committee that the Checker Cab Company be given ninety days to comply with the "request" of the council for adequate taxicab service. It was conceded in the oral argument before this court that the action of the council in this ninety-day provision was dictated by the council's belief of the mandatory provisions of §§ 7 and 8 of Act 213 of 1939.

Appellant then filed its petition for writ of certiorari in the Pulaski circuit court, reciting the facts, attacking §§ 7 and 8 of the Act 213 as unconstitutional, attacking the status of the Checker Cab Company, and praying that no additional permits be issued to Checker Cab Company, and that the entire proceedings before the council be certified to the court, and also praying that its permit be issued as sought before the council. The transcript of the council proceedings was duly certified to the circuit court, and the matter was heard on that record, together with the response of the Checker Cab Company and the response of the city. The learned circuit judge delivered a memorandum opinion, which is in the transcript and has been beneficial to this court in the consideration of the case. The circuit court denied appellant all relief, and after an unavailing motion for new trial this appeal followed, in which is presented the questions hereinafter discussed.

I. The Constitutionality of Sections 7 and 8 of Act 213 of 1939. This act is entitled "An Act Clarifying the Jurisdiction of Cities of the First Class to Regulate and Control Taxicabs, and for Other Purposes," and consists of ten sections.

Section 1 defines taxicabs.

Section 2 clothes cities of the first class with exclusive power to permit, regulate, and control by ordinance the business and operation of taxicabs in said cities.

Section 3 concerns rates.

Section 4 prohibits operation of taxicabs in any city without a permit of that city.

Section 5 concerns the contents and essentials of an application for a permit.

Section 6 provides that when an application for a permit has been filed, notice must be given to every other taxicab operator in the city, and any and all interested persons may be heard by the council.

Section 7, here assailed as unconstitutional, provides:

"If after such hearing the governing body of such city shall find that the public convenience and necessity require additional service of the type or character described in such application, it shall cause such finding to be entered in the records of such governing body and shall give to each and all taxicab operators who may at the time of the filing of such application have been operating in such city not less than sixty (60) days and not more than one hundred twenty (120) days from and after the date of the actual recording of such finding within which to establish and inaugurate the rendition of such additional service as the governing body of said city may have found and declared to be required by public convenience and necessity."

Section 8, here assailed as unconstitutional, provides:

"If within the time so fixed all or any of such taxicab operators shall have inaugurated and established such service, then the governing body of such city shall reject such application; but if within said time none of such operators shall have inaugurated and established such service, then the governing body of said city may, in the event that it shall, after due consideration of all relevant facts, circumstances and conditions, including the probable effect upon the public safety of the operation upon the streets and ways of such city of the equipment necessary for the rendition of such additional service, find that the grant of such application is in the public interest, grant such application.

"Any final action of the governing body of the municipality in respect of any such application shall be subject to judicial review.

"Notwithstanding anything in this act contained, neither any person, firm, corporation or association lawfully engaged in rendering or furnishing any class or type of service referred to in section 2 hereof in any city of the first class on the effective date of this act, nor the successors or assigns of any such, shall be required to secure any permit herein referred to in order to continue such business."

Section 9 states that the provisions and sections of the act are separable, if any should be unconstitutional.

Section 10 is the emergency clause (which we here note failed of adoption), so that the act became effective June 9, 1939.

Appellant assails §§ 7 and 8 as violative of Article II, §§ 3, 18 and 19, of the Arkansas Constitution, and also as violative of Amendment 14 of the United States Constitution. We have concluded that §§ 7 and 8 are violative of Article II, § 19, of the Arkansas Constitution, so we do not consider the other sections of the State Constitution or the 14th Amendment to the United States Constitution.

Article II, § 19, of the Arkansas Constitution says, in part:

"Perpetuities and monopolies are contrary to the genius of a republic, and shall not be allowed, . . ."

This same provision is contained in Article II, § 19, of the Arkansas Constitutions of 1836, 1861, and 1864. For some reason, the framers of the Constitution of 1868 did not include this salutary provision, but the great men who framed the present Constitution of 1874 saw fit to use the quoted language. This provision is not unique to the Constitution of Arkansas; similar provisions are found in Article 41 of the Declaration of Rights of the Constitution of Maryland; in Article I, § 31, of the Constitution of North Carolina; in Article I, § 22, of the Constitution of Tennessee; in Article I, § 26, of the Constitution of Texas; in Article II, § 32, of the Constitution of Oklahoma; and in Article I, § 30, of the Constitution of Wyoming. See, Joyce on Monopolies, p. 270 et seq. In 36 Am. Jur., 521 et seq., there is a discussion of the antimonopoly provisions of various State Constitutions; and general rules are enunciated from the many cases involving these provisions.

Mr. Justice Eakin, in Ex parte Levy, 43 Ark. 42, 51 Am. Rep. 550, in discussing this provision in the Arkansas Constitution, said:

"The monopolies which in England became so odious as to excite general opposition, and infuse a detestation which has been transmitted to the free States of America, were in the nature of exclusive privileges of trade, granted to favorites or purchasers from the crown, for the enrichment of individuals, at the cost of the public. They were supported by no considerations of public good. They enabled a few to oppress the community by undue charges for goods or services. The memory, and historical traditions of abuses resulting from this practice, has left the impression that they are dangerous to liberty, and it is this kind of monopoly against which the constitutional provision is directed. Not all the states have felt this apprehension. There is no indication of it in the Federal Constitution."

In considering the constitutionality of any act of the legislature, we are always mindful of the rule so well expressed by Mr. Justice Hart in McClure v. Topf & Wright, 112 Ark. 342, 166 S.W. 174: "It is not to be doubted that the legislature has the power to make the written laws of the state unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it."

But the Constitution says: "Perpetuities and monopolies are contrary to the genius of a republic and shall not be allowed."

This language is too clear to need elucidation, and no amount of judicial interpretation should ever be permitted to cause the slightest deviation from the clear language of the constitutional inhibition. We do not hold that §§ 7 and 8 of the Act 213 create a perpetuity, because we are mindful of the fact that any subsequent legislature could repeal the entire act, or any part thereof, under the authority of the Third Slaughterhouse Case ( Butchers' Union...