Safe Way Motor Coach Co. v. City of Two Rivers

• Decision Date: 15 November 1949
• Citation: 39 N.W.2d 847,256 Wis. 35
• Parties: SAFE WAY MOTOR COACH CO. v. CITY OF TWO RIVERS et al.
• Court: Wisconsin Supreme Court

Page 847

39 N.W.2d 847

256 Wis. 35

SAFE WAY MOTOR COACH CO. v. CITY OF TWO RIVERS et al.

Supreme Court of Wisconsin.

Nov. 15, 1949.

Nash & Nash, Manitowoc, Walter J. Clark, Manitowoc, for appellant.

F. W. Dicke, Two Rivers, Philip Porter, Madison, for respondents.

Stephens, Cannon, Bieberstein & Cooper, Madison, John L. Bruemmer, Madison, for respondents.

Shaw, Muskat & Paulsen, Milwaukee, John G. Quale and John F. Zimmermann, Milwaukee, of counsel, amici curiae.

ROSENBERRY, Chief Justice.

From the allegations of the complaint it appears,

'That on the 21st day of March, 1932, the Public Service Commission of Wisconsin (hereafter referred to as the commission) issued an order authorizing Wisconsin Public Service Corporation to abandon the auto transportation system it had operated in the cities of Manitowoc and Two Rivers and intermediate points, and by the same order authorized Safe Way Motor Coach Company to operate an auto transportation system in the cities of Manitowoc and Two Rivers and intermediate points.

'That in conformity with said order a Certificate of Authority was issued to Safe Way Motor Coach Company by Public Service Commission of Wisconsin, authorizing it to operate motor vehicles as an auto transportation company for the carriage of freight and passengers over the route described in Exhibit 'B' attached to said certificate; * * *'

That a part of the route described in Exhibit 'B' attached to the complaint is as follows: East to Roosevelt Avenue at the city limits of Two Rivers, thence along Roosevelt Avenue to 12th Street, east on 12th Street to Washington Street, north on Washington to 27th Street, returning over the same route to Manitowoc.

That since 1932 the plaintiff has carried urban passengers over said route within the city of Two Rivers and return, that being the route upon which the plaintiff was and is authorized to travel by the commission.

On Tuesday August 17, 1948 the defendant city of Two Rivers, by its common council, adopted an ordinance, Section 1 of which is as follows: 'Section 1. From and after the 22nd day of August, 1948, the Safe Way Motor Coach Co., shall be permitted to operate buses only upon the following streets in the city of Two Rivers, namely: Lake Shore Drive from the south city limits to Washington Street; and Washington Street from its intersection with Lake Shore Drive to 27th Street, and not upon any other streets except to the extent that detours are necessary by reason of suspension of highway traffic on the above named streets.'

On September 7, 1948, the city of Two Rivers adopted an ordinance amending the ordinance of August 17, 1948, in a particular not material on this hearing. ^*

It is further alleged in the complaint: 'That 12th Street and Roosevelt Avenue run through heavily populated residential and business districts in the City of Two Rivers from which the plaintiff draws its passengers. That Lake Shore Drive from the south city limits to Washington Street, designated in the ordinance above referred to, is located along the shore of Lake Michigan, and bounded on the east by the Lake Michigan beach, and on the west by a city park which is enclosed with a high wire fence, and by other property which does not have residences located thereon or business houses from which the plaintiff could receive passengers. There are no residences whatever on either side of said Lake Shore Drive.'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It also appears that in 1944 Two Rivers Transit, Inc., made application to the commission for authority to operate as a common carrier of passengers within the city of Two Rivers. That such application was granted authorizing Two Rivers Transit, Inc., to operate as a common carrier of passengers on various streets in the city of Two Rivers. That since the issuance of said certificate Two Rivers Transit, Inc., has been transporting passengers commencing at 27th and Washington Streets, thence south on Washington Street to its intersection with 12th Street thence west on 12th Street to its intersection with Roosevelt Avenue, thence southwest on Roosevelt Avenue to a point near the south city limits of the city of Two Rivers.

It is further alleged that the ordinance adopted August 17, 1948 was enacted for the purpose of granting to Two Rivers Transit, Inc., the exclusive right to transport passengers as a common carrier from the intersection of 12th Street and Washington Street, thence west on 12th Street to its intersection with Roosevelt Avenue, and thence southwesterly on Roosevelt Avenue to its intersection with the south city limits of the city of Two Rivers and return, and to prohibit the plaintiff herein from carrying passengers as a common carrier on said streets.

The trial court was of the view that sec. 194.33 of the Stats. authorized the city to enact the ordinance complained of, and sustained the demurrer. It is the contention of the plaintiff that under the decision of this court in Vanderwerker v. Superior, 1923, 179 Wis. 638, 192 N.W. 60, its right under the license granted to it by the commission is superior to the right granted by the city with respect to the routing of common motor carriers and that the authority granted to the city is subject to the provisions authorizing the commission to prescribe routes, etc.

That there is a clear conflict between the license granted to the plaintiff by the commission and the terms of the ordinance complained of there can be no doubt. The question involved is upon which route shall the plaintiff operate, that designated by the commission or that prescribed by the city? A solution of this question presents a difficult problem in statutory construction. We shall be aided somewhat by the history of the statutory provisions involved.

The regulation of the operation of motor vehicles for hire commenced with the enactment of ch. 546 of the Laws of 1915, popularly known as the Jitney Law. That act provided that the Railroad Commission, now the Public Service Commission, should upon application license every person, firm or corporation operating any motor vehicle along and upon any public street or highway for the carriage of passengers for hire and affording a means of local, street or highway transportation similar to that afforded by street railways. The act became secs. 1797-62 to 1797-68 of the Stats. of 1915. The law was amended in minor particulars from time to time.

The case of Vanderwerker v. Superior, supra, arose under the Stats. of 1921. Sec. 1797-68 was then in force. It provided: 'Every city, village or town within or through which any motor vehicle described in sec. 1797-62 shall be operated may require that local consent for the operation thereof be procured and as a condition of such consent may require reasonable compensation for the repair and maintenance of pavements and bridges, and compensation for the regulation of street traffic, and for any other expense occasioned by the operation of such motor vehicle.'

The section was amended from time to time and in 1933 the existing law relating to the regulation of common motor carriers of property and passengers was repealed and new sections 194.01 to 194.46 were created by ch. 488 of the Laws of that year.

The section relating to municipal consent, 194.33, provides: 'No common motor carrier or property or of passengers shall operate any motor vehicle within or through any city or village except in compliance with action taken by such municipality in relation to such streets and routes. No action by any city or village under this section shall be subject to review by the commission. Provided that no carrier operating under this chapter shall be denied the right to operate in any such municipality over any federal or state trunk highway upon payment of such license tax not exceeding the maximum specified in subsection (17) of section 76.54 as the municipality may prescribe.'

In our search for an answer to the problem involved in this case we shall have in mind two fundamental rules of statutory interpretation. First, intent of the legislature is a controlling factor, and second, that ch. 194, of which sec. 194.33 is a part, is to be so construed that every part of it will be given effect.

In this case it is not necessary to make any extended search to discover the legislative intent. It is set forth in sec. 194.02, as follows:

'It is hereby declared to be the purpose and policy of the legislature in enacting chapter 194 to confer upon the motor vehicle department and the public service commission the power, authority and duty to supervise and regulate the transportation of persons and property by motor vehicles upon or over the public highways of this state in all matters, whether specifically mentioned herein or not, so as to protect the safety and welfare of the traveling and shipping public in their use of the highways; to relieve the existing and all future undue burdens on the highways arising by reason of the use of the highways by motor vehicles; to carefully preserve, foster and regulate transportation to the end of developing and preserving each separate type of the transportation system by highway and rail adequate to meet public needs.'

Sec. 194.18 provides: 'The commission is vested with power and authority and it shall be its duty: (2) To designate from time to time the public highways as...