Willis v. City of Fort Smith

• Citation: 182 S.W. 275,121 Ark. 606
• Decision Date: 10 January 1916
• Docket Number: 103
• Parties: WILLIS v. CITY OF FORT SMITH
• Court: Arkansas Supreme Court

182 S.W. 275

121 Ark. 606

WILLIS v. CITY OF FORT SMITH

No. 103

Supreme Court of Arkansas

January 10, 1916

Appeal from Sebastian Chancery Court, Fort Smith District; W. A Falconer, Chancellor; affirmed.

Decree affirmed.

T. J Wear, for appellant.

1. The right or power to enact the ordinance in question was never directly or by implication delegated to the city, and the ordinance is therefore ultra vires, and void. Art 2 §§ 12, 21 Const.; Id. Art. 12, § 4; 7 Cyc. 155 and note 57; 23 Am. Rep. 502; 48 S.W. 859; 16 S.W 913; 1 Disn. (O.) 532; 89 Pa.St. 71, 40 Md. 312.

2. The ordinance is class legislation, discriminating in its nature and in restraint of legitimate trade and business. Const. U.S. Fourteenth Amendment, § 1; Art. 2, §§ 18, 19, Const. Ark.; 118 U.S. 356.

3. It is against public policy, because (1) it is discriminatory, and (2) it is contrary to the policy of the general laws to require those who are engaged in a legitimate business, notwithstanding there may be some dangerous features to employees and individuals of the public who are not careful, connected with it, to make indemnifying bonds to its employees or to the individuals of the public.

4. It is contrary to the Constitution, in that it limits the amount of recovery in case of injury or death to twenty-five hundred dollars. Art. 5, § 31, Const.

5. The ordinance is not a reasonable regulation. Dillon on Municipal Corporations (3 ed.), § 19; Id., §§ 393, 362, 374; 45 Ill. 90.

Kimpel & Daily, for appellee.

1. While, as contended by appellants, the ordinance interferes to some extent with appellants' liberty and with the beneficial use of their property, the same may be said of every police regulation; but the right of a municipality, in the proper exercise of the police power, to impose restrictions upon the individual, no longer admits of debate. 33 Ark. 442; 35 Ark. 356; 88 Ark. 353.

2. The city has not exceeded its authority in enacting the ordinance. The power to regulate every description of carriages which may be for hire, is specifically granted to municipal corporations by statute. Kirby's Dig., § 5454; Id., §§ 5438, 5448, 5456, 5530, 5532; 43 Ark. 82; 107 Ark. 174; 96 Ark. 119; 74 Ark. 194. The proviso to Act 134, Acts 1911, if not itself a grant of authority, is at least a legislative recognition of a power already granted.

3. The ordinance is not discriminatory. The jitney business is a class distinct in itself, and different in many respects from the business of the taxicab, which has a regular stand and from that stand goes on call to any part of the city. It has repeatedly been held that it is proper for cities, in the exercise of their police power, to classify, provided the classification applies to all persons similarly situated. 107 Ark. 182; 85 Ark. 465; 207 U.S. 251. The term "jitney" is defined in the ordinance, and the ordinance operates upon all cars coming within that category.

4. The argument that this legislation is unwise, uncalled for and unnecessary, is not tenable. That is a question for the legislative body and not for the courts, unless there is a clear abuse of discretion. 88 Ark. 353; 195 U.S. 223; 64 Ark. 152; 101 Ark. 223.

5. The ordinance does not create a civil duty. It does not attempt to define or declare what shall or shall not constitute negligence on the part of a jitney owner, nor when nor under what circumstances individuals can recover damages from him. It does not limit the amount of damages recoverable against a jitney owner or operator, and the requirement, as a condition precedent to engaging in this business, of a bond in the sum of $ 2,500 conditioned that, to the extent of this amount at least, the principal or his sureties will satisfy any final judgment recovered against the principal because of the negligent operation of his jitney, is a proper exercise of the power of regulation. Frund on Police Power, par. 40, and authorities cited; 147 P. 1159; 225 F. 812; Le Blanc et al. v. City of New Orleans, 70 So. 212, June 28, 1915; 150 P. 348; 85 S.E. 781; 178 S.W. 537; 178 S.W. 6.

OPINION

KIRBY, J.

This appeal challenges the validity of an ordinance of the City of Fort Smith regulating the operation of "jitneys" and "jitney busses" it being contended that said ordinance was beyond the power of the city to make, and that it is unconstitutional and void. The ordinance provides Section 1, that each person, firm or corporation who desires to operate a jitney in or over any of the streets in the City of Fort Smith, shall first execute and file with the clerk, a bond in the penal sum of $ 2,500 for each jitney, with sufficient sureties to be approved by the board of commissioners, conditioned, "that the principal of said bond will promptly pay any final judgment which may be recovered against said principal, or his agent or employees." Said bond shall run in the name of the City of Fort Smith for the use and benefit of any person or persons who may recover any such judgment. It also makes provision for renewal thereof. The second section restricts the number of persons who may be carried in the jitney and makes it unlawful to carry a greater number. Under the third section, they are not permitted to be stopped on "street crossings," which term is defined. The fourth section fixes the license for each jitney carrier at $ 20 per annum and $ 12.50 for six months, payable in advance and makes it unlawful to operate any jitney without first having paid the license. Section five defines the term "jitney" to include any and all self propelled vehicles, operating for hire between fixed points or places along designated or advertised routes, or which shall be regularly operated along any portion of any particular street or streets. Section six prescribes the penalties for violation of the act.

Municipal corporations can only exercise such powers as are expressly granted to them by the Legislature and as are necessarily implied for effecting the purposes for which the grant of power was made and as incident thereto. Such corporations have expressly been given control and supervision of the streets and highways within their limits. Section 5456, Kirby's Digest; Sanderson v. Texarkana, 103 Ark. 529, 146 S.W. 105; Fitzgerald v. Saxton, 58 Ark. 494, 25 S.W. 499; Hughes v. Ark. & Okla. Rd. Co. et al., 74 Ark. 194, 85 S.W. 773.

Section 5454, Kirby's Digest provides: "They shall have the power * * * to regulate all carts, vehicles, drays, hackney coaches, omnibuses and ferries, and every description of carriages, which may be kept for hire, and all livery stables."

Section 13 of the motor vehicle law, Act 134 of the Acts of the General Assembly of 1911, expressly provides that municipal corporations shall not have power to restrict the use or speed of motor vehicles, except as provided in the act and further that "nothing in this act contained shall be construed to affect the power of municipal corporations to make and enforce ordinances rules and regulations affecting motor vehicles, which are used within their limits for public hire."

The State has the right to regulate and control the use of motor vehicles except as it has granted such right to other governmental agencies, and it expressly recognizes in the motor vehicle law the exclusive right of municipal corporations to make and enforce rules and regulations for motor vehicles used for public hire. The definition of the term and use of the jitney as a conveyance brings such...