Earhart v. Middendorf , 234 Ky. 78 ( 1929 )

Reversing.

The question involved in this appeal is whether chauffeurs who drive taxicabs which are operated for hire, but not between fixed termini or over any regular route, must pay the license fee of $12.50 prescribed by section 2739j-32 of Baldwin's 1928 Supplement to the Statutes, this section being section 32 of chapter 112 of the Acts of 1926, or are liable only for the license fee of $2 provided for by section 2739g-16 of the 1922 Edition of the Statutes; this latter section being section 4 (b) of chapter 90 of the Acts of 1920. The lower court held they were liable for the license fee of $12.50, and from its judgment so adjudging this appeal is prosecuted.

For convenience we shall hereafter refer to taxicabs operated for hire, but not between fixed termini or over any regular route, simply as taxicabs.

Unless section 4 (b) of chapter 90 of the Acts of 1920 (section 2739g-16 of the 1922 Edition of the Statutes) has been superseded by chapter 112 of the Acts of 1926 in so far as chauffeurs who drive taxicabs are concerned, then it is conceded that such chauffeurs are liable only for the license fee of $2 prescribed by the 1920 act, even as chauffeurs who drive automobiles for wages in private employment are. Chapter 112 of the Acts of 1926 does not in express terms refer to chapter 90 of the Acts of 1920. But that the 1926 act repeals by implication all the provisions of the 1920 act in so far as the latter act touches upon the regulation, supervision, and administration of motor transportation in this commonwealth for compensation is asserted because of section 41 of the 1926 Act (Ky. Stats. Supp. 1928, sec. 2739j-41), which reads:

"Chapter 81 of the Acts of the General Assembly of 1924 is hereby repealed and this act shall embrace all of the law upon the subject of the regulation, supervision and administration of motor transportation in this Commonwealth for compensation."

That the 1926 act does not, and was never intended by the Legislature to, accomplish what a literal reading of section 41 alone would seem to indicate as its purpose, is made manifest when we turn to section 27a of that act (Ky. Stats., Supp. 1928, sec. 2739j-27a) which reads:

"Any person, firm or corporation operating motor vehicles for the transportation of persons for hire wholly within the corporate limits of any city or town, where the highway is not maintained in whole or in part by the state, county or federal government, you-drive-its, jitneys, taxicabs and busses operating on casual trips shall not be construed to be under any of the provisions of this act, except as to the payment of fees, but they shall not be exempt from the payment of any municipal, state or local license fee."

Thus we see that very large classes of motor transportation for hire are excluded from every provision of the 1926 act except the payment of the fees prescribed by that act. When we exclude these classes of motor transportation, all that is left, so far as classes of motor transportation for hire were known at the time of the passage of the 1926 act or as are now known, is motor transportation for hire over regular routes or between fixed termini over the public highways of the state, and even where this class is wholly within a town whose streets are not wholly or in part maintained by the state, county, or federal government, it is excluded from all the provisions of this act except the payment of fees. Thus to say that section 41 means what a literal reading of it taken alone would indicate is to shut the eyes to just what the act does cover. In fact, the act does not by its very terms embrace all of the law upon the subject of the regulation, supervision, and administration of motor transportation in this commonwealth, for large classes of such transportation are excluded from its operation except as to the payment of fees. Nor can it be said that by their exclusion from the provisions of the act and by the terms of section 41 of the act, the Legislature meant these classes to be independent of any regulation. Thus section 28 of the act (Ky. Stats., Supp. 1928, sec. 2739j-28) provides that municipalities and local subdivisions may make reasonable local police and traffic regulations to govern motor transportation companies operating between fixed termini or over a regular route. The exclusion of taxicabs from the provisions of the 1926 act plainly does not exempt them from such local police and traffic regulations despite the provisions of section 41 of the act. Indeed, such regulations of taxicabs by an ordinance adopted by the city of Louisville since the passage of the 1926 act have been upheld by this court as valid. Kentucky Cab Co. v. City of Louisville, 230 Ky. 216, 18 S.W.2d 992. It is true nothing is said in this case about this 1926 act, but it never occurred either to astute counsel in that case nor to the court that it could be argued that taxicabs were exempt from local police regulations because of the 1926 act. As said in the case of Commonwealth v. Louisville Taxicab Transfer Co., 210 Ky. 324, 275 S.W. 795, "the rule is that, in construing an act, it must be considered as a whole, and so construed, if possible, as to give effect to every part thereof, and to produce a harmonious whole." Applying this rule to the 1926 act, it is plain that its purpose was to regulate motor transportation for hire between fixed termini or over regular routes, and except as to payment of certain fees was not intended to embrace any other class of motor transportation for hire. We say this with full knowledge of its title, part of which reads:

"An Act . . . providing for the supervision, control and regulation of motor transportation of persons for hire over the public highways of Kentucky; . . . providing for the examination and qualification of drivers of such motor vehicles and fixing a fee therefor; providing for the supervision and regulation of fares, schedules and routes of such motor vehicles." Acts 1926, c. 112.

As we have seen, the act is not as broad as its title, nor was it intended so to be. Although a title under section 51 of the Constitution must be broad enough to cover the act to which it is the title, yet there is nothing which prohibits the title being broader than the act.

With these observations in mind, we turn to section 32 of the 1926 act (Ky. Stats., Supp. 1928, sec. 2739j-32), which it is claimed prescribes a license fee of $12.50 for chauffeurs of taxicabs. That section reads:

"No person shall be permitted to drive any automobile or motor bus for the transportation of persons for hire between fixed termini or over a regular route, as provided under this act, until said person has been granted a certificate by the commissioner. Any person desiring to drive an automobile or a motor bus for hire shall file with the commissioner his application and shall pay to said commissioner a fee of twelve dollars and fifty cents (12.50) annually. Said application shall contain the name of the applicant, the experience he has had in the operation of motor vehicles, a certificate from some reputable physician as to his eyesight, and condition of health and habits. Before the said applicant is granted a certificate, he shall be required to take such tests or examinations as the commissioner may require. The said application, if granted, shall be subject to cancellation upon due notice to the holder thereof for ten days before the hearing and said certificate shall be cancelled if said applicant violates any of the rules and regulations prescribed by the commissioner. No certificate shall be issued to any person under twenty-one (21) years of age. If any certificate shall be cancelled the holder thereof shall return badge issued to him by the commissioner to said commissioner."

The only other places in the act where drivers are mentioned are sections 8, 33, 35, and possibly section 34 (Ky. Stats., Supp. 1928, secs. 2739j-8, 2739j-33, 2739j-35, and section 2739j-34). Section 8 reads:

"It shall be unlawful for any person, firm or corporation to operate a motor vehicle for transportation of passengers for hire, between fixed termini or over a regular route, without the driver having a certificate from the commissioner, and wearing a badge issued by the commissioner, showing that said driver has taken examination and passed with a satisfactory grade the following: Driving ability, intelligence, experience, habits and holding a doctor's certificate."

Section 33 of the act, which follows section 32, under the provisions of which it is sought to impose this license fee of $12.50, imposes the duty of stopping the motor vehicle before crossing railroad tracks upon drivers of motor vehicles operating "between fixed termini or over a regular route." Section 35 reads:

"The said commissioner shall furnish a metal badge for each licensed driver of such motor vehicles which badge shall be worn by said driver at all times when on duty."

The last time motor vehicles are mentioned before the appearance of this section 35 is in section 33, where they are confined to motor vehicles operating "between fixed termini or over a regular route." The words "such motor vehicles" in section 35 must refer to the motor vehicles mentioned in section 33, which are those operated between fixed termini, since relative words are construed as referring to their nearest antecedent. 6 Rawle C. L. 846.

Section 34 reads:

"The commissioner shall issue certificates over his signature, attested by the seal of the Commonwealth of Kentucky. The said commissioner shall keep a numerical record of all certificates issued under the provisions of this act."

Section 1 of the act (Ky. Stats., Supp. 1928, sec. 2739j-1) provides that the term "certificate" in the act means "a certificate of public convenience and necessity authorized to be issued under the provisions of this act." Despite this provision of section 1, it is plain that the term "certificate" in section 32 of the act has no such meaning, otherwise absurdity would result. It is not necessary to decide here whether the term "certificate" in section 34 of the act means the certificate of section 32 or the certificates provided for elsewhere in the act and as defined by section 1 of the act. It will have been noted that in section 32 of the act, the first sentence reads: "No person shall be permitted to drive any automobile or motor bus for the transportation of persons for hire between fixed termini or over a regular route, as provided under this act, until said person has been granted a certificate by the commissioner." And the second sentence reads: "Any person desiring to drive an automobile or a motor bus for hire shall file with the commissioner his application and shall pay to said commissioner a fee of twelve dollars and fifty cents ($12.50) annually." Because there was left out of the second sentence either the word "such" before the word "automobile" or the words "for hire between fixed termini or over a regular route" after the words "for hire," it is argued that it was intended by section 32 to embrace all chauffeurs who drive automobiles let for hire. This is a very strained construction to put upon this section. Nowhere else in the act is any chauffeur referred to except chauffeurs of vehicles covered by the act, and, as we have seen, taxicabs are not covered by the act except as to the payment of fees. That taxicabs are subject to payment of the fees cannot be urged as ground for requiring their chauffeurs to be subject to the fees of the act, for section 27a of the act does not mention chauffeurs. Now, as well stated in the brief of amici curiæ:

"If it was the intention of the General Assembly in adopting section 32 of the Act to require all persons who were driving an automobile for hire to pay $12.50 instead of, as we contend, requiring all drivers of automobile or motor busses for hire over the highways and between fixed termini, then there was no necessity for placing in section 32 the first sentence or in section 33 the first sentence, or in section 8 the inhibition against the operation of motor busses between fixed termini and over a regular route before the driver has secured the license. In other words, there would be no necessity to mention at all in either of those sections the operation of motor busses for hire between fixed termini or over a regular route if every driver of every kind of motor vehicle for hire was covered by the second sentence copies supra.

"The General Assembly could simply have said as much and left out of each of those sections the sentence 'between fixed termini and over a regular route,' and accomplished the purpose contended for by the opposition."

It is passing strange, if the Legislature meant by section 32 of the act to create two classes of chauffeurs, (1) Those who drive motorbusses for hire between fixed termini or over regular routes, and (2) chauffeurs who for wages drive motor vehicles let for hire, that no duties are placed upon the second class by any provisions of the act, whereas all the duties put upon chauffeurs by the act are confined to the first class. Why, if taxicab chauffeurs must obtain the license provided for by section 32 of the act, is the prohibition against permitting a motor vehicle in which passengers are carried for hire to be operated by a chauffeur without such a license confined to motor vehicles traveling between fixed termini or over a regular route? Yet section 8 of the act, which forbids the operation of a motor vehicle by a chauffeur unless he has the certificate provided for by section 32, applies only to motor vehicles traveling between fixed termini or over a regular route.

Again analyzing section 32 of the act, we find that by the first sentence those who wish to drive a motor vehicle for hire between fixed termini must procure a certificate. Nothing is said about a certificate in the second sentence, which it is claimed fastens upon chauffeurs of taxicabs the liability for this $12.50 license fee. The third sentence of section 32 relates to the information to be furnished with the application for a license. The fourth sentence reads: "Before the said applicant is granted a certificate, he shall be required to take such tests or examinations as the commissioner may require."

But the only driver who is required to obtain a certificate is a driver of a motor vehicle for hire between fixed termini. Hence it is plain that the Legislature meant by the term "applicant" only such drivers and never intended to include taxicab chauffeurs within the purview of section 32. It seems patent to us that section 32 of the act was never intended by the Legislature to deal with two classes of chauffeurs, but one only, and that class the one described in the first sentence of section 32.

As, in our judgment, section 32 does not cover taxicab chauffeurs, it follows that they are not liable for the $12.50 license fee which that section prescribes and that they are liable only for the $2 license fee imposed by the 1920 act. The judgment of the lower court is therefore reversed, with instructions to enter a judgment in conformity with this opinion.

Whole court sitting.

Judges WILLIS, LOGAN and GRIGSBY dissent.