State Ex Rel. R. M. Wells v. City Of Charleston.
| Decision Date | 15 December 1922 |
| Citation | 92 W.Va. 611 |
| Court | West Virginia Supreme Court |
| Parties | State ex rel. R. M. Wells v. City of Charleston et al. |
When a municipal ordinance is opposed to the policy of the state in relation to the subject matter thereof and in conflict with the statute of the state in relation thereto, the ordinance is void to the extent of its conflict with the statute and should not be enforced, (p. 616).
And the municipal authorities are not estopped by the passage of such an ordinance from contesting its validity when brought in question in a suit or proceeding by one claiming the benefit thereof and seeking to enforce his supposed right thereunder, (p. 616).
When an ordinance is so inconsistent with the statutes or general laws of the state, it will be null and void, unless it emanates by virtue of the express grant of the state, (p. 616).
Controlled by the foregoing principles, an ordinance of the City of Charleston, amending and re-enacting section 433 of the Code of Ordinances of said city, adopted December 19, 1921, relating to the operation of vehicles for hire and the granting of permits, being in conflict with the provisions of section 82 of chapter 112, Acts 1921, and with the public policy of the state as evidenced by said statute, is void and unenforceable, (p. 616).
Mandamus by the State, on the relation of R. M. Wells, against the City of Charleston and others, to compel defendants to grant plaintiff permits to operate motor vehicles for hire.
Writ refused.
Camp & Lilly, for relator. Donold 0. Blagg, for respondents.
The relator has applied for a writ of mandamus to compel respondents, the City of Charleston, its mayor and individual councilmen, to act favorably upon two separate applications by him for permits to operate motor vehicles for hire in said city; the first, as described in the petition, the second, as likewise described in his other petition, to operate a fourteen passenger Ford Bus, to be used for receiving, carrying and discharging passengers within the corporate limits of said city, and for which a fee of seven cents is to be charged to each and every passenger; the only difference between the two applications being the size and capacity of the vehicles, and the rate of fare to be charged. If granted, the applicant would be limited to no specific route, or to any regulation other than the rate of charges for the services to be rendered.
In each instance petitioner predicates his right upon a certain ordinance, being an amendment and re-enactment of section 433 of the municipal code of said city, adopted on November 20, 1922, entitled: "An Ordinance to amend and re- enact the Code of Ordinances of the City of Charleston, adopted on the 19th day of December, 1921, relating to the Operation of Motor Vehicles for Hire, '' as follows:
"Be it Ordained by the Council of the City of Charleston:
That section 433 of the Code of Ordinances of the City of Charleston, adopted the 19th day of December, 1921, be and the same is hereby amended and reenacted so as to read as follows: Section 433. Vehicles for hire; permit; bond.
No motor or other vehicle shall be operated over any street, avenue, alley or public way within the City of Charleston, for the carriage of passengers, freight, or merchandise, for hire, until the owner or operator of such vehicle shall have first made application to and secured from the Council a permit to operate such vehicle. The application for such permit shall state the capacity of such vehicle or vehicles, the purpose for which the same is to be used, and the rates proposed to be charged. When such permit is issued, which, in all cases the council shall issue, upon the applicant's complying with the provisions of this section, no such vehicle shall change its fares without the permission of the Council. If such motor vehicle be for the carriage of passengers, it shall be plainly marked so as to designate the schedule of fares charged; if such vehicle be for carriage of freight or merchandise, it shall be appropriately marked with plain letters and figures showing the load authorized to be carried. The driver of such vehicle shall, when requested, produce such permit or a certified copy thereof. All permits shall be good until the first day of January, next following. The possession of such permit shall not exempt any person, firm or corporation from the payment of registration fees for vehicles, as provided by law. A bond to be approved by the Council shall be required of each applicant, which bond shall accompany the application, and shall be in the sum of not less than five hundred dollars, and no more than five thousand dollars, conditioned that the owner, or the person to whom the permit to operate such vehicle is issued, shall pay any and all lawful claims for damages or injury to person or property sustained by passengers in such vehicle, or by any other person or persons that may be killed, injured or suffer damage to property by reason of the negligent or improper operation of said vehicle. Said bond shall likewise inure to the benefit of the estate of any person who dies as a result of injuries resulting from the negligent or improper operation of such motor vehicle, and said bond shall not be void on the first recovery, but may be sued on until the full penal sum named therein shall be recovered. The amount of such bond shall be as follows: For the first horse-drawn vehicle to be operated, the bond shall be five hundred dollars, and one hundred dollars for each additional horse-drawn vehicle to be operated by the same owner or operator; for the first motor vehicle to be operated the bond shall be twenty-five hundred dollars, and five hundred dollars for each additional motor vehicle to be operated by the same owner or operator; provided, that bond in excess of five thousand dollars shall in no case be required from any one applicant.
Any person operating a vehicle under a permit as provided in this section shall keep the name of the owner painted in plainly legible letters at least one inch high on the outside of such vehicle.
Any person violating...
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