State v. Moore

• Citation: 13 A.2d 143
• Parties: STATE v. MOORE.
• Decision Date: 02 April 1940
• Court: Supreme Court of New Hampshire

13 A.2d 143

STATE

v. MOORE.

Supreme Court of New Hampshire. Merrimack.

April 2, 1940.

[Copyrighted material omitted.]

Transferred from Municipal Court of Concord; King, Special Judge.

Kenneth G. Moore was charged with violating an ordinance of the city of Concord requiring all persons engaging in the trucking and teaming business for hire and wholly within the city limits to be licensed by the Board of Mayor and Aldermen. The defendant moved that the complaint be quashed. Transferred.

Complaint quashed.

Complaint, for violation of an ordinance of the city of Concord requiring all persons engaging in the trucking and teaming business for hire and wholly within the city limits to be licensed by the Board of Mayor and Aldermen. The ordinance provides that no license shall issue until the Board certifies that "public convenience and necessity" require the operation of the truck or team to be used, and only to such persons who satisfy the Board that they are "thoroughly familiar with the topography" of the city and who are deemed by the Board suitable to carry on the business.

The defendant moved that the complaint be quashed on the ground that the ordinance is void as an excess of power permitted by the federal and state constitutions or authorized by the legislature. To the denial of the motion he excepted.

Gordon S. Lord, City Sol., and Richard F. Upton, both of Concord, for the State.

Dudley W. Orr, of Concord, for defendant.

ALLEN, Chief Justice.

The ordinance is sought to be sustained as a valid exercise of the protective power. It is not questioned that the trucking and teaming business is a legitimate occupation and employment, and the requirement of a license to engage locally in the business is valid as a police regulation only if it may reasonably aid to serve the public welfare in some proper manner.

One claim advanced is that the ordinance is in the public interest because of its effect to control the number of those engaged in the business and thereby avoid a supply in excess of the demand. The requirement of a certificate or finding of public convenience and necessity before a license is issued is designed to accomplish this objective. But an oversupply of property or services for sale does not of itself constitute occasion to avoid it by public regulation and control of private enterprise and endeavor.

If no one may engage in a legitimate business or occupation unless there is a public need for him to do so, the loss of personal freedom is extreme. Possibly the fact that the public need may be limited has some tendency to show that the public will suffer some real and appreciable disadvantage if the supply is not limited to the need or will derive some real and appreciable advantage if only the need is supplied. The question is one of economic consideration. But whatever the advance in the scope of the due exercise of the police power, the time has not come when it may be said that legislation may prohibit entrance into a legitimate field of activity for the reason alone that sufficient in number are already engaged therein to meet the public demand for its product or service, Special reasons for enterprises such as railroads and public utilities may justify legislation of such character. But no reasons of that kind exist as to the business here under consideration. The ordinance makes no distinction between common carriers and contract carriers, and if it applied only to the former, the right to limit their number would not follow. It could hardly be successfully contended that legislation or ordinance might restrict the number of hotels or service stations for travel for the reason that no more were needed to supply the public demand.

It is suggested that a supply of truckmen and teamsters limited to public need will relieve highway congestion. It is common knowledge that trucks and jobteams locally used form but a slight part of the volume of highway traffic. Their number if unrestricted by ordinance is restricted in a practical way by the operation of the economic principle of supply and demand. Oversupply reaches a maximum, since the conduct of business at a loss is a brake on its extent. The requirement has no "manifest tendency to cure or at least to make the evil less" (Liggett Co. v. Baldridge, 278 U.S. 105, 115, 49 S.Ct. 57, 60, 73 L.Ed. 204) in more than negligible degree.

Moreover, relief from highway congestion may not be accomplished by unfair discriminatory measures. While the use of the highways is a privilege, the privilege may not be granted arbitrarily and be bestowed at will and pleasure as a favor to some groups of travelers while imposing a deprivation of use upon others. "If some may, and others may not, enjoy the privilege, the distinction must be one which the public interest permits". Rosenblum v. Griffin, 89 N.H. 314, 321, 197 A. 701, 706, 115 A.L.R. 1367. As suggested in argument, permission of highway use for the local business of gasoline and oil trucks without restriction of numbers to their ascertained public need, while such use for other trucks and jobteams is thus restricted, displays a disregard, if not defiance, of the principle of constitutional equality. The classification between restricted and unrestricted use here resulting has no sound basis for its support. The public right, however great, is not a right to select at will, pleasure and random the objects of its regulatory control. Regulation of highways may be exercised in discretion, but the discretion must be tempered and exerted with respect for the inviolable private rights.

So far as the ordinance seeks to regulate the use of highways, it is in full parallel with the statute held void as unfairly discriminatory in Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264.

The statute regulating highway use of motor vehicles operated in carrying goods for hire was held valid in H. P. Welch Co. v. State. 89 N.H. 428, 199 A. 886, 120 A.L.R. 282, although it made certain exceptions and did not apply to vehicles carrying their owners' own products of manufacture or labor. The discriminations were held reasonable upon considerations of safety of travel rather than of volume of travel. The business regulated presented special features of danger in the manner of conducting it. Regulations designed to reduce the volume of travel are proper if their discriminations can be freed from the charge of arbitrary selection. Such is not the case here, and the conclusion is consistent with that reached in the Welch case.

Whether the statute considered in the Welch case is designed to be comprehensive in its scope, as were the statutes construed in State v. Angelo, 71 N.H. 224, 51 A. 905, and State v. Paille, N.H., 9 A.2d 663, with the result of forbidding local legislation extending it to its exceptions, becomes a moot inquiry in view of the invalidity of the ordinance on other grounds.

Nor is the view here adopted in any wise in conflict with the decision, and its grounds, in State v. Guertin, 89 N.H. 126, 193 A. 237. The ordinance there attacked made the proprietors of taxicabs as ordinarily used common carriers and required them to do business at established rates "honestly and accurately computed". Id., 89 N.H. 129, 193 A. 240. Safety or volume of highway travel was not an objective. The discriminatory provisions of the ordinance were held to be based upon reasonable distinctions. The ordinance here seeks other objectives. It does not seek to regulate charges for service, and does not separate common from contract carriers. The public necessity, whether based on the claim of the need of controlling the extent of the business or on the ground of control...