Western Auto Transports, Inc. v. City of Cheyenne

• Citation: 57 Wyo. 351,118 P.2d 761
• Decision Date: 12 November 1941
• Docket Number: 2203
• Parties: WESTERN AUTO TRANSPORTS, INC. v. CITY OF CHEYENNE ET AL
• Court: Wyoming Supreme Court

118 P.2d 761

57 Wyo. 351

WESTERN AUTO TRANSPORTS, INC. v. CITY OF CHEYENNE ET AL

No. 2203

Supreme Court of Wyoming

November 12, 1941

Rehearing Denied 57 Wyo. 351 at 372.

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by Western Auto Transports, Inc. against the City of Cheyenne and others, to enjoin the enforcement of an ordinance exacting fees for transportation of motor caravans. From an adverse judgment, plaintiff appeals. Rehearing denied on January 5, 1942--see 120 P.2d 590.

Reversed with directions.

For the appellant, there were briefs by Milton R. Foe of Manderson Wyoming, and Truman A. Stockton, Jr. of Denver, Colorado, and George F. Guy of Cheyenne, Wyoming, and oral arguments by Messrs. Stockton and Guy.

The case was brought to enjoin enforcement of a so-called caravan tax ordinance and collect moneys paid under protest to the City of Cheyenne, under said ordinance. The ordinance has no application to the operations of appellant. The title of the ordinance so shows. The necessity for such an ordinance must be shown. Brink v. Elmira Heights, 249 N.Y.S. 378; City v. Traction Co., 108 N.E. 847; McAneny v. N. Y. (N. Y.) 134 N.E. 187; People v. Newman, 180 N.Y.S. 892; Dillon Municipal Corporations, Sec. 1377, p. 2398; Michigan P. U. C. v. Duke, 266 U.S. 570; Frost v. Commission, 271 U.S. 583; Chicago v. Schultz, 173 N.E. 276. The trial court erred in admitting irrelevant testimony prejudicial to appellant. Whiteman v. State (Ohio) 164 N.E. 51; 20 Amer. Juris. 240; Aldworth v. Lynn (Mass.) 26 N.E. 229; Morningstar v. Lafayette Hotel Co., 211 N.Y. 465; Brewing Co. v. Bauer, 50 Ohio St. 560; Elder v. Valley Coal Co. (Pa.) 27 A. 545; Cromwell v. Norton (Mass.) 79 N.E. 433. The trial court erred in excluding testimony of expert witnesses offered by appellant. Scott v. River Company (Ore.) 72 P. 594; 20 Amer. Juris. 659; Morrison v. Development Company, 266 P. 117; Island Club v. Town of Nantucket (Mass.) 70 N.E. 61; Real Estate Co. v. Audit Company (Ala.) 73 So. 369; West inghouse Electric and Manufacturing Company v. Denver Tramway Company, 3 F.2d 285. A witness may be competent as an expert, although his knowledge was acquired from practical experience rather than scientific research. Cochran v. United States, 157 U.S. 286; Montgomery v. Gilmer, 33 Ala. 116; Pearson v. Zehr, 138 Ill. 48; March v. Barnes (Mass.) 16 Gray 161; Greenfield v. People, 85 N.Y. 75; Piolett v. Summers, 106 Pa. 95; Zinc Co. v. Martin (Va.) 22 S.E. 869; Gates v. Commonwealth (Va.) 69 S.E. 520; 20 American Jurisprudence 659. Expert witnesses may state opinion based upon facts known to them, even though they involve the ultimate facts to be decided by the court. State v. Kuhl, 42 Nev. 185, 175 P. 190; Bank v. Robinson (Kan.) 144 P. 1019; Baldwin v. Gaines (Vt.) 102 A. 338; Cropper v. Titanium Pigment Company, 47 F.2d 1038; Carpenter v. Walker (Ala.) 54 So. 60; Hamman v. Bridge Co. (Wisc.) 106 N.W. 1081; People v. Gaines, 34 P.2d 146; Patrick v. Smith, 75 Wash. 407; Quinn v. Ry. Co., 56 Conn. 44; People v. Jennings, 252 Ill. 534; Finn v. Cassidy, 165 N.Y. 584; State v. Cox, 172 Minn. 226; Home Ins. Co. v. Collins (Tex.) 55 S.W.2d 898; Blagen v. Thompson (Ore.) 13 P. 647; 20 Amer. Juris. 648. The ordinance violates provisions of the Federal Constitution. To justify a money payment burdening interstate commerce, it must be shown that it is collected to reimburse for the expense of enforcing regulations. Sprout v. South Bend, 277 U.S. 163; Interstate Transit v. Lindsey, 283 U.S. 183; Cable Co. v. Richmond, 249 U.S. 252; Morf v. Bingaman, 298 U.S. 407; Clark v. Poor, 274 U.S. 554; Hicklin v. Coney, 290 U.S. 169; Kane v. New Jersey, 242 U.S. 160; Interstate Busses Corp. v. Blodgett, 276 U.S. 249; Ingels v. Morf, 300 U.S. 290; Clark v. Paul Gray, Inc., 306 U.S. 583. A city may not levy a fee for police regulation outside the city. Liberty Highway Co. v. Commission, 294 F. 703. A municipal ordinance based on an arbitrary classification is void. Article I, Section 28, Wyoming Constitution. Kelley v. Rhoads, 7 Wyo. 253; State v. Willingham, 9 Wyo. 290; McGarvey v. Swan, 17 Wyo. 133; State ex rel. Newman v. City of Laramie, 275 P. 106; State v. LeBarron, 162 P. 265; State v. Lawrence, 61 S. 975; Graves v. Janes, 18 Ohio C. C. (N. S.) 488; Chicago v. Restaurant, 15 N.E.2d 725; Magnusen v. Kelly, 35 F.2d 867; Hendrick v. Maryland, 235 U.S. 610; Interstate Transit v. Lindsey, 283 U.S. 193; Morf v. Bingman, 298 U.S. 407; Ingels v. Morf, 300 U.S. 290. A police regulation must be reasonable. State v. City of Sheridan (Wyo.) 170 P. 1. The regulation must be of uniform operation. State v. LeBarron (Wyo.) 162 P. 265. The ordinance involved is unreasonable and the trial court erred in upholding it.

For the respondents, there were briefs and oral arguments by C. A. Lathrop of Cheyenne, Wyoming, and Amos Mathews of Chicago, Illinois.

The judgment should be affirmed on the authority of Kenosha Auto Transport Corporation v. City of Cheyenne, 55 Wyo. 298; Maurer v. Hamilton, 309 U.S. 598 and Philadelphia Lines v. Simpson, 85 L.Ed. 552. The ordinance applies to appellant's operations. Langford v. Rogers, 278 Mich. 310, 270 N.W. 692; Board v. Blakely, 20 Wyo. 259. Respondents' evidence was properly admitted. Morf. v. Bingaman, 298 U.S. 407; Clark v. Paul Gray, Inc., 306 U.S. 583; Hodge Co. v. Cincinnati (Ohio) 175 N.E. 196, affirmed in 284 U.S. 335. The Court properly admitted Exhibits K, L and M. Rast v. Van Deman & Lewis Co., 240 U.S. 342; South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177. The testimony of appellant's expert witnesses was properly excluded. Northwest States Utilities Co. v. Brouilette, 51 Wyo. 132, 65 P.2d 223; Irion v. Hyde (Mont.) 105 P.2d 666; Fink v. Steele, 171 A. 49; Blakeney v. Power Co. (Ala.) 133 S. 16; Howarth v. Express Company (Pa.) 112 A. 536; Souza v. United Electric Rys. Co., 152 A. 419. The ordinance does not violate the United States Constitution. Maurer v. Hamilton, 309 U.S. 598; Philadelphia Lines v. Simpson, 37 F.Supp. 314. Having the power to prohibit, the city may impose a license fee. Cusack Co. v. Chicago, 242 U.S. 526; St. Louis Poster Co. v. St. Louis, 249 U.S. 269; Storage Co. v. Chicago, 211 U.S. 306; Peoples Taxicab Company v. Wichita (Kan.) 34 P.2d 545. The ordinance does not violate the Constitution of Wyoming. McGarvey v. Swan, 17 Wyo. 133; Public Service Commission v. Grimshaw, 49 Wyo. 158; State v. Willingham, 9 Wyo. 290; 61 C. J. 106, 107; Erwin v. Omaha (Nebr.) 224 N.W. 692; Ex parte Dickey (W. Va.) 85 S.E. 781; State v. Hume, 52 Ore. 1, 95 P. 808. The appellant failed to show that the fee was excessive in amount, or that the class covered by the ordinance is not in need of regulation. Cooley v. Board of Wardens, 12 How. 299; Clyde Mallory Lines v. Alabama, 296 U.S. 261; Murphy v. California, 225 U.S. 623. The evidence introduced by respondents sustained the validity of the ordinance. The following cases are cited on the application of Section 72-121, R. S. 1931 to this case: Gale v. School District, 49 Wyo. 384; Marsh v. Aljoe, 41 Wyo. 119 and Tucker v. State, 35 Wyo. 430. Chapter 70 of the Session Laws of 1941 shows the legislative intent that the City had power to enact this ordinance. Kenosha Company v. Cheyenne, 55 Wyo. 298; Harvey v. Stanolind Oil & Gas Co., 53 Wyo. 495; Consumers Co. v. Industrial Commission, 4 N.E.2d 34; Peterson v. Town of Guernsey, 26 Wyo. 272.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This action is brought to enjoin the City of Cheyenne from enforcing an ordinance passed in June, 1935, and which, without reciting its title or its concluding parts, is as follows:

"SECTION 1. For the purpose of this Ordinance, a Motor Caravan transporting automobiles through the City of Cheyenne shall be defined as any group of cars or trucks trailing or carrying new or second-hand automobiles to a destination outside of the City of Cheyenne and passing over the streets of said City. A group of cars or trucks is defined as one or more of such vehicles trailing or carrying new or second-hand automobiles destined for points outside of the City of Cheyenne.

SECTION 2. It shall be unlawful for any caravan, as defined in this Act, to pass over the streets of Cheyenne without first obtaining from the Chief of Police a permit as provided herein. Such permits shall be of two classes, and issued to cover the expense of regulation, control and supervision of said caravans.

A permit allowing the use of the streets of the City, without parking privileges, shall be issued to the manager, driver, or other chief officer of the caravan, designating the number of vehicles in said Caravan, the license number of the automobile operated by the officer or driver in charge of the caravan, a description of the automobiles being towed, towing or being transported, and the period of stay in the City of Cheyenne. Such permits shall be issued at a charge of $ 1.00 for each automobile so transported.

A permit granted to such caravan parking privileges shall be issued in like manner, by the Chief of Police, incorporating all the information required by a permit which does not grant parking privileges. In addition thereto, the Chief of Police shall designate what area shall be occupied by the caravan, and extend it to parking privileges in periods of twelve (12) hours duration. The charge for such permits shall be $ 2.00 for each car being towed, towing or being transported, for such period of twelve hours. No permit shall include a charge for the motor vehicle occupied or driven by the manager or other chief officer of the caravan, provided such motor vehicle is his personal property and not being moved through the City of Cheyenne for the purpose of sale.

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