Teche Lines, Inc. v. Danforth , 195 Miss. 226 ( 1943 )

The controlling opinion writes out of the statute the 20-foot provision, as applied (quoting from the opinion) to "at least 85% of the public highways of this state." The statute involved is known as "the uniform traffic regulation act." It has been adopted by many of the states, with differences in some respects, but in most of their provisions they are uniform. The authorities in the briefs show that the courts of some of the states have construed the provisions of the statute involved here. None of them, however, support the holding of the majority opinion.

The state has power, for the safety of the public, to regulate the use of its public highways, and may prohibit or condition, as it deems proper, their use. Where a reduction on their use "is designed to promote the public convenience and the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection under the Constitution." Cox v. New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed. 1049, 133 A.L.R. 1396; State v. L. . N.R. Co., 97 Miss. 35, 51 So. 918, 53 So. 454, Ann. Cas. 1912C, 1150; State v. J.J. Newman Lbr. Co., 102 Miss. 802, 59 So. 923, 45 L.R.A. (N.S.), 851, on suggestion of error, 103 Miss. 263, 60 So. 215, 45 L.R.A. (N.S.), 858. The police power of a state can neither be abdicated nor bargained away. It is inalienable. Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 34 S. Ct. 364, 58 L. Ed. 721. The power is as broad and plenary as the taxing power. Kidd v. Pearson, 128 U.S. 1, 9 S. Ct. 6, 32 L. Ed. 346. The police power of the states embraces the construction of roads, canals and bridges, and the establishment of ferries, and the maintenance of highways. Escanaba L.M. Transportation Co. v. Chicago,107 U.S. 678, 2 S. Ct. 185, 27 L. Ed. 442; New Orleans Gas-Light Co. v. Louisiana Light Heat Co., 115 U.S. 650, 6 S. Ct. 252, 29 L. Ed. 516.

The public records show that more people were killed or maimed in the United States by motor vehicles in 1941, than this country had killed or maimed in the first World War.

There is nothing in the record showing that 85% of the highways of the state would be affected, or, for that matter, any other proportion of the highways. If, however, that be a fact, according to judicial knowledge, we know in the same way there are not a dozen country mail boxes in the state that the mail carrier cannot conveniently approach by parking his car at or near the entrance to the premises being served. Furthermore, it is a matter of common knowledge that stations could be constructed in compliance with the statute, at a little expense.

In considering the application of the statute involved it is necessary to state the case made by the evidence. The controlling opinion does not do that. The collision and injury occurred about 9:30 at night, on paved highway No. 11, which runs through the city of Laurel, thence southward through Ellisville, Moselle and Hattiesburg. Clyde Douglas, a negro, was working at Laurel; his home was between Ellisville and Moselle, something like half a mile from the highway in the country. The nearest place on the highway to his home was Brannon's store and residence. The bus company sold tickets to Moselle, but not to Brannon's place. But it was in the habit of stopping to take on and let off passengers at other places along the route where tickets were not sold. Douglas was making that trip on the night of the collision and death of Danforth. As usual he had a ticket to Moselle. It was the custom of the driver of the bus to let him off at Brannon's. As usual, he pushed the buzzer for the bus to stop at that place, but instead of doing so it ran on south, down a decline, something like 350 feet, and stopped to let him off. When the collision occurred the negro was approaching the front to get off. The bus had been standing at that place about two minutes when the collision occurred. Brannon's is at the crest of the hill. There is a considerable decline going south therefrom, of something like 800 to 1,000 feet before reaching level ground. The bus was stopped about half way between these two points. The paved part of the highway is 20 feet wide, with about 3 1/2-foot shoulders on each side, made of gravel and sand. The bus was 8 feet wide and 32 feet long. It was standing with all six wheels on the paved part of the highway, leaving only about 12 feet of paved highway to its left. About 60 feet north, the evidence tends to show, there was a rise or small hill, which obstructed the vision of one driving south from Brannon's. Instead of the front righthand part of Danforth's car striking the bus, the contact was with the righthand door, resulting in part of that side of the car being torn off. The contact with the bus was on its rear lefthand side. It was manifest from the testimony that if Danforth had had a foot or two more of open space he would have passed without collision with the bus. The evidence tends to show that the statute could have been complied with at a place three or four hundred feet south of where the accident occurred, and also at Moselle, the destination of the passenger. And if the passenger had buzzed the driver of the bus in time it could, and would, have stopped at Brannon's.

And, further, if the driver of the bus had stood on the paved part of the highway, to the left of the bus, which the evidence showed was 10 or 12 feet wide, and waved a red lantern back and forth while his passenger was debarking, and Danforth had seen it, and knowing what it meant, as doubtless he would have, the accident probably would not have occurred.

The statute, in my judgment, is a valid exercise of the police power, both as to public and privately owned motor vehicles. But admit for the sake of argument that it is not as to privately owned cars. That would not necessarily mean that it would be an unconstitutional exercise of the power as to public passenger and freight carriers. A statute may be constitutional in part, and unconstitutional in part. We have here involved a public carrier of passengers. The statute means that such carrier cannot stop at any place on a public highway where its provisions cannot be complied with. In other words, so far as public carriers of passengers and freight are concerned, they must make their own turnouts in order to leave the 20-foot space and 200-foot view each way, unless such turnouts already exist.

I see no reason why the legislature could not prohibit absolutely the use of the improved highways of the state by public carriers of passengers and freight, except in communities not sufficiently served by railroads.

Smith, C.J., concurs in this dissent.