Sprout v. City of South Bend

• Decision Date: 14 October 1926
• Docket Number: No. 24695.,24695.
• Citation: 198 Ind. 563,153 N.E. 504
• Parties: SPROUT v. CITY OF SOUTH BEND.
• Court: Indiana Supreme Court

198 Ind. 563

153 N.E. 504

SPROUT

v.CITY OF SOUTH BEND.

No. 24695.

Supreme Court of Indiana.

Oct. 14, 1926.

Appeal from St. Joseph Circuit Court, W. A. Funk, Judge.

Action by the City of South Bend against Otis Sprout. Judgment for plaintiff, and defendant appeals. Affirmed.

Isaac Kane Parks, of Mishawaka, and Walter R. Arnold, of South Bend, for appellant.

Lewis W. Hammond, of South Bend, for appellee.

EWBANK, J.

The question for decision in this case is the validity or invalidity of certain ordinances of the city of South Bend. The statute constituting the city charter authorizes cities “to regulate, tax and license coaches, hacks, drays, automobiles and all other vehicles,” and “to license, tax and regulate public hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen, bill-posters and all other persons pursuing like occupations for pay or hire.” Clauses 32, 38, § 10284, Burns' 1926 (section 53, c. 129, Acts 1905, pp. 219, 252). And the Motor Vehicle Registration Act then provided that “no owner of a motor vehicle, except motor trucks and motor driven commercial vehicles” should be required to pay any municipal tax or license fee, in addition to the registration fee paid to the secretary of state, with a proviso that nothing in the act should be construed as affecting the power of municipal corporations to make and enforce ordinances, rules, and regulations affecting motor trucks and motor driven commercial vehicles used within their limits for public hire. Section 10476d, Burns' 1914 (section 17, c. 300, Acts 1913, pp. 779, 789).

Ordinance No. 2135 of the appellee city, adopted January 12, 1921, reads as follows:

“Every motor vehicle and electric vehicle operated by a person *** along and upon any public street or highway within the city of South Bend *** for the purposes of affording a means of local street or highway transportation by indiscriminately accepting and discharging such persons as may offer themselves for transportation, either at temporary street or highway parking places or along the course or within the territory on which said vehicle is or may be running or operating, *** is hereby declared to be a commercial vehicle (with exceptions as to taxicabs and hotel busses). *** No person *** shall operate any such commercial vehicle, commonly known as a jitney bus, and it shall be unlawful to do so, unless there shall have been filed with the city controller of said city a liability contract of insurance issued to such person *** by an insurance company, organized under the laws of the state of Indiana or authorized to transact business therein, providing *** for the payment of any final judgment that may be rendered against the insured for damages to property or bodily injury or death to others, resulting from accident or collision for which said person *** may be liable *** growing out of the negligent operation of such commercial vehicle, in a sum not exceeding $1,000.00 to any one person or $2,500.00 to more than one person as a result of one accident. *** Any person *** shall pay to the city controller for the benefit of said city, for each commercial vehicle commonly known as a jitney bus to be so driven or operated, an annual license fee as follows, to wit: *** (b) $50.00 for a vehicle having a rated seating capacity for more than seven and not more than twelve passengers. *** Any person *** upon conviction for the violation or failure to comply with any provisions of this ordinance, shall be fined in any sum not more than $100.00. ***”

Without repealing this ordinance, but as supplementary thereto, the common council, on December 27, 1921, adopted another ordinance, numbered 2229, which (in part) provided as follows:

“Section 1. Every motor vehicle operated by a person *** along and upon any public street or highway within the city of South Bend *** for the purpose of affording a means of street or highway transportation by indiscriminately accepting such persons as may offer themselves for transportation, from a point within the city of South Bend to a point outside the limits, *** and from a point without to a point within the city of South Bend, is declared to be, for the purpose of this ordinance, a commercial motor vehicle for hire (but excepting taxicabs and hotel busses). *** Section 3. It shall be unlawful for any person *** to operate a commercial vehicle as defined under section one of this ordinance on any street or avenue in the city of South Bend without first paying to the controller *** a license fee at the rate provided in section 5 of said ordinance number 2135 for commercial vehicles defined therein, *** and it shall be unlawful to operate such commercial vehicle without first filing with the controller a liability contract of insurance as provided in said ordinance number 2135 for commercial vehicles operating in the city of South Bend. Section 4. Any person *** upon conviction for the violation of or failure to comply with any provision of this ordinance shall be fined not more than $100.00. ***”

A verified complaint by the city of South Bend alleged that on the 30th of May, 1923, “defendant, then being a resident of the said county of St. Joseph, and being at said time within the corporate limits of the said city of South Bend, did then and there operate a commercial vehicle upon a public street of said city without having first obtained a license from said city so to do, contrary to sections 1, 2, 3, and 4 of an Ordinance No. 2229 adopted by the common council of said city December 27, 1921.” The evidence consisted of a stipulation of facts which, in addition to setting out the ordinances at length, stated the following facts: That defendant resided in St. Joseph county, Ind., at the city of Mishawaka, which adjoins South Bend on the east. That daily for several months he operated between South Bend and Niles, in the state of Michigan, a motorbus for the transportation of passengers between those places (it is about four and one-half miles from the north city limits of South Bend to the Michigan state line, in which distance is one village and many suburban residences, and Niles is four or five miles north of the state line); that in the course of such transportation of passengers defendant entered within the corporate limits of the city of South Bend, “and there offered himself and his vehicle as instruments of transportation for passengers from said city of South Bend to the said city of Niles, Mich., and all points intermediate between (them) *** north of the state line, *** and in the solicitation of passengers for transportation, and in making contracts of passage, stated that he was engaged in effecting transportation only between points in the state of Indiana and points in the state of Michigan, but that, if passengers who were taken aboard his bus for transportation desired to leave the said bus prior to the passage from Indiana to Michigan, they were at liberty to do so, if the bus stopped, *** but they would be obliged to pay transportation to some point in Michigan; *** that it was defendant's practice, on said day and for several months prior thereto, on making stops after leaving the city of South Bend, to permit passengers who had taken passage to some point north of the state line between Indiana and Michigan to alight from said bus, and that they did so on...