Sprout v. City of South Bend

• Decision Date: 14 October 1926
• Docket Number: 24,695
• Citation: 153 N.E. 504,198 Ind. 563
• Parties: Sprout v. City of South Bend
• Court: Indiana Supreme Court

153 N.E. 504

198 Ind. 563

Sprout v. City of South Bend

No. 24,695

Supreme Court of Indiana

October 14, 1926

Rehearing Denied December 16, 1926, Reported at: 198 Ind. 563 at 572.

1. CARRIERS.---Ordinance requiring "jitney bus" operator to obtain liability insurance not unconstitutional.---A city ordinance, authorized by cl. 32 and cl. 38 of 10284 Burns 1926, requiring liability insurance providing that insurer will pay for injuries to passengers before doing business of carrier of passengers by "jitney bus," did not violate any provision of the state or federal Constitution. p. 569.

2. CONSTITUTIONAL LAW.---Ordinance requiring "jitney bus" operator to obtain liability insurance of company authorized to do business in this state not unconstitutional.---The fact that a city ordinance required a "jitney bus" operator to obtain liability insurance from a company authorized to do business in this state did not render the ordinance invalid as violating the privileges and immunities section of the state Constitution (75 Burns 1926) or the Fourteenth Amendment of the federal Constitution, as any foreign indemnity insurance company having sufficient assets and doing a lawful business can readily become qualified to write insurance in this state (9129 Burns 1926). p. 569.

3. COMMERCE.---Ordinance requiring bus operators to procure liability insurance not unconstitutional as interfering with interstate commerce where operator solicited and accepted passengers in city, though none was accepted except for interstate transportation.---An ordinance requiring all persons operating busses within the city limits to procure liability insurance guaranteeing that all judgments against the operator for damages resulting from the operation of his bus shall be paid is not unconstitutional because of interfering with interstate commerce where he used the streets for indiscriminate solicitation and acceptance of passengers, though he only received passengers for interstate transportation. p. 569.

4. MUNICIPAL CORPORATIONS.---City may license and regulate commercial bus line operating partly outside of city and state.---A city may legally license and regulate a commercial bus line operating for hire on its streets, although such line is not operated exclusively within the city or the state, and even though its main business is interstate. p 569.

5 CARRIERS.---Bus driven on streets of city for purpose of soliciting and receiving passengers was within provision of automobile law which authorized cities to regulate commercial vehicles "used within the city limits for public hire."---Where a "jitney bus" operator drove his car about the streets of a city and solicited and received passengers therein, but accepted only passengers who would pay fare to a point in another state, the bus was "a commercial vehicle used within the city limits for public hire" within the provision of the statute of 1913 regulating the use of automobiles (Acts 1913 pp. 779, 789 17, 10476d Burns 1914) which authorized cities and towns to adopt ordinances requiring a license and regulating the use of such vehicles therein. p. 569.

From St. Joseph Circuit Court; Walter A. Funk, Judge.

Action by the city of South Bend against Otis Sprout for the violation of an ordinance regulating the use of "jitney busses" therein. From a judgment against the defendant, he appeals.

Affirmed.

Isaac Kane Parks and Walter R. Arnold, for appellant.

Lewis W. Hammond, for appellee.

OPINION

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." § 10284, cls. 32, 38 Burns 1926, Acts 1905 p. 219 (252), § 53. 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. § 10476d Burns 1914, Acts 1913 p. 779 (789), § 17.

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 to any one person or $ 2,500 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 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 * * *." 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 * * *."

A verified complaint by the city of South Bend alleged that on May 30, 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 one, two, three and four 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, Indiana, 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 motor bus for the transportation of passengers between those places. (It is about four and one-half miles...