The State ex rel. St. Louis Transfer Company v. Clifford

• Decision Date: 26 May 1910
• Citation: 128 S.W. 755,228 Mo. 194
• Parties: THE STATE ex rel. ST. LOUIS TRANSFER COMPANY, Appellant, v. PATRICK J. CLIFFORD, License Collector
• Court: Missouri Supreme Court

128 S.W. 755

228 Mo. 194

THE STATE ex rel. ST. LOUIS TRANSFER COMPANY, Appellant,
v.
PATRICK J. CLIFFORD, License Collector

Supreme Court of Missouri, Second Division

May 26, 1910

Appeal from St. Louis City Circuit Court. -- Hon. Matt G. Reynolds, Judge.

Reversed and remanded (with directions).

Randolph Laughlin and Lehmann & Lehmann for appellant.

(1) Where compliance has been made with the requirements specified by law for procuring a license, and the officer in whom authority is lodged refuses to issue the license, he may be compelled to do so by mandamus. St. Louis v. Wetzel, 130 Mo. 620; Ex parte Lucas, 160 Mo. 227; State ex rel. v. Ruark, 30 Mo.App. 325. (2) It was the respondent's duty to issue vehicle licenses to the appellant on demand, or to give appellant a statement that upon payment of the amount of the licenses the license receipts would be issued to it. Laws 1901, p. 81, sec. 5. (3) The proviso of section 1708 of the Municipal Code is void in that it conflicts with the fifth paragraph of section 26 of article 3 of the city charter. Said section of said charter limits the power of the municipal assembly to the regulation of the width of tires of vehicles for heavy transportation. The specific grant of power given by this paragraph of the charter is exclusive, and excludes the idea that any power to regulate the width of tires is to be found implied as an incident to any general grant. St. Louis v. Kaime, 180 Mo. 317; City v. Telephone Co., 96 Mo. 628. (4) The proviso of section 1708 of the revised ordinances attempts to regulate the width of tires of "all vehicles of every kind or description used on the streets of this city for any purpose whatever," having axles in excess of one and one-fourth inches in diameter, and not having rubber tires. Either the assembly wholly lost sight of the limitation of the charter, or else this language is equivalent to a declaration that "A vehicle for heavy transportation is hereby declared and defined to be a vehicle having an axle of iron or steel one and one-fourth inches or more in diameter, and not having rubber tires, regardless of whether such axle be a solid bar or a hollow tube; regardless of whether such vehicle be a child's velocipede, a man's bicycle, a racing sulky, or an ordinary buggy; regardless of whether the other parts of said vehicle have a capacity for sustaining ten pounds or ten tons; and regardless of whether said vehicle be in fact used for light, for medium, or for heavy transportation." (5) The words in the fifth paragraph of section 26 of article 3 of the city charter, which delegate to the mayor and assembly power "to regulate the width of tires of all vehicles for heavy transportation," must be construed in their plain or ordinary and usual sense. R. S. 1899, sec. 4160. (6) The void portion of the ordinance is so inseparably connected with the valid as to admit of no line of demarcation to be drawn by either court or jury. Therefore the whole ordinance must fail. Railroad v. Day, 35 F. 866; Andrew Jackson ex parte, 45 Ark. 158; McConnell v. Mayor, 39 N. J. L. 38; Water Co. v. Neosho, 136 Mo. 498; Manhattan Co. v. Dayton, 59 F. 327; Hannibal v. Telephone Co., 31 Mo.App. 23; Mt. Olive v. Haslet, 26 Pitts. L. J. (Pa. St.) 400; Austin v. Murray, 16 Pick. 121. (7) If there is "any fair, reasonable doubt concerning the existence of the power," the court will resolve the doubt in favor of the transfer company and against the city. City v. Telephone Co., 96 Mo. 628; City v. Kaime, 180 Mo. 309. (8) Under the evidence the ordinance is so grossly unreasonable as to justify and require the court to declare it void on that ground alone. State v. Rohart, 83 Minn. 261; Corrigan v. Gage, 68 Mo. 541; Halpin v. Campbell, 71 Mo. 484; Cape Girardeau v. Reilly, 72 Mo. 220; Kelly v. Meeks, 87 Mo. 396; Hannibal v. Telephone Co., 31 Mo.App. 23; Railroad v. Springfield, 85 Mo. 674; Plattsburg v. Hagenbush, 98 Mo.App. 669; Springfield v. Jacobs, 101 Mo.App. 339; Lamar v. Weidman, 57 Mo.App. 507; Gratiot v. Railroad, 116 Mo. 450; Morse v. Westport, 110 Mo. 502; Smith, Modern Law Mun. Corp., sec. 526; 1 Beach, Pub. Corp., secs. 90, 512 (9); Tugman v. Chicago, 78 Ill. 405; Caldwell v. Alton, 33 Ill. 416; Austin v. Murray, 16 Pick. 121. (9) In so far as the ordinance proviso applies to those vehicles of the appellant which are engaged exclusively in interstate commerce, it is an invasion of the exclusive power of Congress. U. S. Constitution, art. I, sec. 8; Leisy v. Hardin, 135 U.S. 100; Schollenberger v. Pennsylvania, 171 U.S. 1; Collins v. New Hampshire, 171 U.S. 31; Austin v. Tennessee, 179 U.S. 343; Minnesota v. Barber, 133 U.S. 313; Henderson v. New York, 92 U.S. 259; Chy Lung v. Freeman, 92 U.S. 275; Railroad v. Huson, 95 U.S. 465; Scott v. Donald, 165 U.S. 58.

Chas. W. Bates and B. H. Charles for respondent.

OPINION [128 S.W. 756]

[228 Mo. 198] FOX, J.

Relator applied to the circuit court of the city of St. Louis for a writ of mandamus to compel the license collector of said city to issue licenses for relator's wagons and other vehicles used by it on the streets of the city. The defendant had refused to issue the licenses applied for on the ground that relator failed to make certain statements and affidavits required by section 1708, chapter 23, article 2, of General Ordinance No. 19991, and because the tires upon relator's said vehicles were narrower than the width required by said section of the ordinance. Upon a trial of the cause, the peremptory writ was denied, and relator appealed to this court.

In its petition relator alleged that it was a Missouri corporation, engaged in carrying freight, passengers and baggage within the city of St. Louis, Missouri, and within East St. Louis, Illinois, and in carrying freight between said cities; that in its business it uses twenty-eight different kinds of vehicles, from "light baggage wagons, buggies, spring wagons and road carts, which haul and carry light loads, to heavy stake wagons, half spring wagons, long reach wagons, bulk grain wagons and other wagons, which are designed [228 Mo. 199] to carry, and frequently do carry, heavy loads averaging in weight from four to ten tons;" that certain other of its vehicles have rubber tires; that its wagons, road carts and passenger coaches have no rubber tires, and are so constructed as to make it impracticable to equip them with rubber tires; that the operation of all its vehicles, except passenger coaches and baggage wagons, is confined to the down-town streets of the two cities, which are for the most part paved with cobble stones and granite blocks; that the defendant was the duly...