Western Auto Transports, Inc. v. City of Cheyenne

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.

SECTION 3. Upon the issuance of a permit, the Chief of Police shall assign to the holder of the permit an officer of the Cheyenne Police force, for the purpose of escorting the caravan through the City, extending such courtesies and assistance as may be necessary to insure the safe conduct of the caravan beyond the City limits. The Police officer shall be in complete charge of the entire caravan during the period of transit, and is hereby directed to take such precautions as may be necessary to insure the safety of the public. Any caravan parked in a designated area, after the hours of darkness, shall be suitably marked as may be directed by the police officer in charge. The minimum required shall be parking lights on the first and last cars of the caravan, after the hours of darkness, and lights of a suitable nature along the street side of the parking area every fifty (50) feet.

SECTION 4. This ordinance is enacted for the protection of the public health and safety, and for the protection of the citizens of the City of Cheyenne in the use and enjoyment of its thoroughfares.

SECTION 5. Any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and fined not to exceed one hundred dollars for each offense. A violation on different days shall constitute a separate offense."

It appears herein that plaintiff is a corporation organized under the laws of Illinois, with its principal place of business in Denver, Colorado; that it is engaged solely in the business of interstate transportation of new automobiles from points east of Wyoming to points west of this state, and has a permit from the Interstate Commerce Commission; that it uses for such transportation trucks and trailers attached, capable of hauling four automobiles at one time; that two of these automobiles are loaded onto the trailer, and two more on top of the others; that the wheels of none of the automobiles are on the ground and none of them are towed. Plaintiff comes within the legislation of the state regarding motor vehicles, and is subject to the regulations of the Public Service Commission. But, notwithstanding the fact that our statutes have special provisions relating to towed vehicles, that commission, according to the testimony in this case, classifies plaintiff's operation as a common trucking operation. Four chains are attached to each automobile, one on each corner of the frame, and all are fastened to the trailer, so that there are 16 chains to each trailer. Four chains are attached to each automobile, so that if one of the chains should happen to break, it will still be safely fastened to the trailer by reason of the others. The load is no higher than permitted under regulations of the state. The truck and trailer are 42 feet long, shorter than many other trucks and trailers. The total length allowed under the laws of the state is 45 feet. Other testimony will be mentioned hereafter. Plaintiff in its petition alleged that the ordinance is not regulatory, but is designed for revenue purposes, and is arbitrary and confiscatory; that it is an undue burden on interstate commerce and in violation of Article 1, Section 8 of the Constitution of the United States; that it is also in violation of certain provisions of the Constitution of the state.

1. The plaintiff contends that its operations do not come within the contemplation of the ordinance in question because of the fact that it is substantially a trucking operation and not a towing as contemplated in the ordinance. We think the point was fairly raised by the petition. The ordinance was before us, though on the pleadings only, in the case of Kenosha Auto Transportation Company v. Cheyenne, 55 Wyo. 298, 100 P.2d 109. That case is in no way controlling herein. There was some doubt in our minds as to whether or not the vehicles there under consideration were such as to come within the contemplation of the ordinance. But some of the automobiles were towed. None of them are towed by the plaintiff. The Kenosha case was decided in the light of the decisions dealing with caravans, and in the light of the legislation on the subject in our state and in other states. Our legislation did not specifically mention caravans. But caravans were made up of vehicles which were towed, so that provisions dealing with towed vehicles were, in the light of the then conditions, evidently deemed the equivalent of provisions dealing with caravans. In subd. (r) of Sec. 2, Ch. 65 of the Session Laws of 1935, operators of towing motor vehicles were defined as "every operator of a motor vehicle towing a motor vehicle or vehicles coming into or going through the state on any highway for the purpose of sale, barter or exchange within or without the state of such towed motor vehicle or vehicles." To make the provision more specific, subd. (r) of Sec. 1, Ch. 121, Session Laws of 1937 defined such operators as "every owner or operator of any motor vehicle being driven or towed over the highways of this state on its own wheels, for the purpose of sale, barter or exchange within or without this state or for delivery after sale or storage prior to sale." See also Ch. 70, Session Laws 1941.

Counsel for the city contend that the vehicles of plaintiff come within the terms of the ordinance since Section 1 thereof relates to trucks "trailing or carrying" automobiles. Technically speaking that is correct. But that it is not necessarily controlling since the word "or" may be construed in a conjunctive or copulative sense when so doing prevents an unreasonable result. 46 C.J. 1126. If a truck should carry one or more automobiles completely enclosed on all sides, such operation would, of course, fall within the meaning of "carrying" used in the ordinance, if "or" is used in a disjunctive sense. We can hardly believe that counsel for the city would contend that the ordinance would be valid as applied to such an operation, based, as it would be, merely on the character of freight carried, or that the ordinance contemplated or intended to embrace such an operation. Hence to interpret "or" in a disjunctive sense would lead to an unreasonable result, and we must reject such construction and use the term in a conjunctive sense. And that construction, and that only, is in harmony with the provisions of the ordinance as a whole. The title of the ordinance reads: "An ordinance providing for the regulation and supervision of motor caravans towed, towing and transporting automobiles through the City of Cheyenne, Wyoming." This title indicates not alone that it was intended to regulate "caravans," but specifically referred to "towing, towedand transporting" automobiles. When the ordinance was enacted, long caravans were continually passing through Cheyenne toward the western coast. Many cars were attached to each other, all of them having their wheels on the ground. In Morf v. Ingels,14 F. Supp. 922, 1025 (1936) the court stated that the term "caravan" has come to mean "a considerable number of persons journeying in company by several or many vehicles. Fleet movement of cars may be termed caravans." The Kenosha case referred to that definition and was decided on the theory that the vehicles considered in that case bore at least a resemblance to caravans as thus defined, and it is at least a serious question, since we discussed the point at some length, as to whether or not the decision in that case would have been what it was, if it had not been for that fact. It can scarcely be doubted that when the city council of Cheyenne enacted the ordinance in question it had in mind the conditions then existing, and the legislation in this state and other states, particularly New Mexico and California, relating to caravans and towed vehicles, and did not have in mind automobiles which were loaded on a truck and trailer as are the automobiles of the plaintiff in this case. And this conclusion is clearly borne out by the provisions of Section 3 of the ordinance. An officer was to be assigned "for the purpose of escorting the caravan through the city, extending such courtesies and assistance as may be necessary to insure the safe conduct of the caravan beyond the city limits." And the police officer was required to be in complete charge of the entire caravan during the period of transit. There is nothing in the record indicating that this would be necessary with the vehicles used by plaintiff. The contrary is true. The minimum illumination at night required by the ordinance, in case the caravan should be parked "shall be parking light on the first and the last cars of the caravan," clearly showing that no motor vehicles like those used by plaintiff were contemplated, for plaintiff uses but one which has its wheels on the ground — a truck and trailer. Lights of a suitable nature were required, if parked at night, "along the street side of the parking area every 50 feet." The vehicle of plaintiff is only 42 feet long, and the ordinance seems to have contemplated caravans several times 50 feet in length, otherwise a simple requirement of a light in front and in the rear would have been sufficient. It may be observed in this connection that the permits issued to plaintiff are on a certain form entitled "Automobile Caravan Permit." While it is not certain, it is altogether probable that this form has been used from the beginning, clearly showing the intention at the time when the ordinance was passed. It is true that if a statute or an ordinance is broad enough, it will at times be extended to include conditions not in existence and not contemplated at the time of its enactment. 59 C.J. 973-974; Pellis Bros. v. Cooper, 47 Wyo. 480, 38 P.2d 607; Equitable Life Ass'n. v. Thulemeyer, 49 Wyo. 63, 52 P.2d 1223,54 P.2d 897. But where "the statute (or ordinance) shows plainly that the word is not used as describing the whole genus put forward as the one applicable to the case, but only some particular species thereof, the rule has no application." 59 C.J. 974. In this case, it plainly appears that the ordinance was intended merely to apply to a particular species of motor vehicles under particular conditions. We should give a reasonable construction to the ordinance. And, read in the light of the conditions prevailing at the time of its enactment, the legislation then existing, the decisions of the courts, and the well known meaning of "caravan," it would, we think, be unreasonable to say that the ordinance applies to the vehicles used by the plaintiff.

2. It is further contended that the fees charged by the city under the ordinance are excessive as to the plaintiff and therefore void. We think we should decide this point, lest it be thought that the decision herein rests on purely formal grounds which might be easily remedied by the enactment of a new ordinance. The record discloses substantially the following facts: From February 1, 1939, to December 1, 1940, the plaintiff paid to the city $2420.00, which is at the rate of nearly $4.00 per day, $110 per month, or at the annual rate of $1320.00, and shows that one of plaintiff's vehicles passed through the city on the average of six to seven times a week. There is testimony in the record that the amount of transportation has increased since that time, so that the number of trips and the amount paid may now be larger.

Plaintiff's drivers stop in the city only for sufficient time to eat. When plaintiff first began its operation it failed to pay the fees provided by the ordinance, and its drivers were brought back into the city three different times, but the testimony indicates that this was done merely for the purpose of collecting the fees and cannot be taken into consideration in determining the reasonableness of the fees. Prior to about September, 1940, it was necessary for plaintiff in going westward to drive through a viaduct under the Colorado Southern Railroad, located about a quarter or half of a mile west of the city. Because of the height of the load, difficulties were encountered in passing through it, and the traffic officer of the city aided the drivers a number of times. But a different underpass had been constructed since that time, so that such service is no longer necessary. Since the time when plaintiff has been advised of the existence of the ordinance, its drivers notify the police department of their arrival in the city and the place where they stop, and thereupon an officer is sent to collect the fees. According to the record the latter has a few times examined plaintiff's load and climbed on top to examine it for safety, but never found anything out of order. Generally the traffic officer when collecting the fee has not examined the vehicle with its load or looked at it. New drivers of plaintiff have, according to the testimony of a police officer, frequently been told by him how to get out of the city and he has a few times escorted them on the way out. Five of plaintiff's drivers testified that they never were escorted out of the city. The main trouble given by plaintiff's drivers, according to defendants' testimony, has been by reason of "double-parking," though that has been true with others, and the traffic officer supervises other trucks and vehicles as well as those of plaintiff. Most of the commercial trucks do not pass through the congested business district, but the plaintiff's trucks do, and except for that fact, the plaintiff's operation would give no greater trouble than the operation of other trucks, for which no special fees are exacted, unless a unit on the load should happen to come loose as mentioned below.

On the question of safety, the testimony, aside from that already mentioned, is substantially as follows: The loads carried by plaintiff are accompanied by two drivers, and they are instructed to examine the chains each time they stop. Plaintiff has never had an accident by reason of the method of loading. The witness Hall, president of the plaintiff company, testified that its trucks and trailers do not differ materially from other trucks and trailers. The witness Marrow, a transportation engineer, and Chairman of the Safety Committee of the American Trucking Association, was asked the following question: "Is there any unusual fact or feature which would present a special traffic hazard or danger, or which would necessitate special regulation of automobile transport trailers, as compared with trailers used to transport any other type of cargo?" He answered: "I would say to this: Most emphatically NO in answer to that question. This particular type of equipment does not create any hazard, in my opinion. My reason for saying that is that I believe if there were to be any comparison between this type of equipment and the other types of equipment that I am familiar with on the streets and highways today, that this would be a safer unit." The only testimony of the city bearing on that point is that the load has been seen a few times to sway somewhat from side to side in a high wind, but the chains had never been seen to come loose. The chief of police, after much hesitation, testified that the plaintiff's vehicles need supervision when none of the others do for this reason: "They have two units on the top runway of that transport, and each of those units weigh from 3500 to 4000 pounds. Should any one of those units get loose and come off the top of that runway, it would cause a more serious accident than two cars crashing together at an intersection." "Q. Yes, you are surmising, of course. None of them ever have, have they? A. No, but you can't tell when one of them will have it."

It is not improbable that when the city council fixed the fees in the ordinance in question, it had in mind the then existing legislative acts of New Mexico and California. In New Mexico the fee for each vehicle which was towed was fixed at $5.00 and in California as high as $15.00. See Ingels v. Morf, 300 U.S. 290,57 Sup. Ct. 439, 81 L. Ed. 653. However, in determining whether a regulatory fee is excessive, the particular facts of each case are controlling. North Star Line v. Grand Rapids, 259 Mich. 654, 244 N.W. 192; 37 C.J. 194. And it is scarcely reasonable to take the fees fixed for a whole state as a model even on a somewhat smaller scale for fees to be paid in a community with the population of Cheyenne. The fee fixed in the ordinance is claimed to be a regulatory fee, under the police power, not a tax, and the city does not claim the right to tax. Such fee, to be lawful, if within the power of the municipality to exact under the laws of the state, and if laws of Congress do not forbid, though no nicety in calculation is required, should be imposed for the purpose of defraying the expenses incidental to regulation, supervision and enforcement, and should be approximately confined to and commensurate with such expenses. 33 Am. Jur. 367, 37 C.J. 193, 194; Clark v. Paul Gray, 306 U.S. 583,59 Sup. Ct. 744, 83 L. Ed. 736; McQuillan, Mun. Corp. Sec. 1102. The presumption is that the fees are reasonable (33 Am. Jur. 368), and will be so held by the courts, unless the contrary appears on the face of the ordinance or by testimony introduced in the case. Towns v. Sioux City, 214 Iowa 76, 241 N.W. 658. And in determining the reasonableness of the fees fixed by an ordinance, courts take into consideration the laws of the state covering the same general field of legislation, if they do not entirely supercede the local regulations, for the less regulation is necessary the less justification for the exaction of fees. North Star Line v. Grand Rapids, supra. It is the duty of the Public Service Commission or the State Highway Department to supervise and regulate the operations of all motor carriers, including interstate motor carriers. Section 3, 8, 11 and 14, Ch. 121, Session Laws of 1937. The superintendent of the Highway Department may, under Section 74, Ch. 126, Session Laws of 1939, require the driver of a motor vehicle, at any time, upon reasonable cause, to submit to inspection of his vehicle and require whatever may be necessary to put it in safe condition and he may designate any police officer to act in his stead. Under Section 73 of the same legislative act, he may order the suspension of the registration of any vehicle which he determines is in an unsafe condition. Furthermore, the State has a Highway Patrol, whose duties it is to "enforce all the motor vehicle laws of this state." It consists of a captain and a sufficient number of patrolmen to carry out the purposes of the legislative act. Chapter 89, Session Laws 1937. The sum of $200,000, or so much thereof as is necessary was appropriated for the use of the patrol by Ch. 128, Session Laws of 1941. Some illustrative decisions help us in solving the question before us. In Ex parte Fine, 124 Or. 175, 264 P. 317, an ordinance exacted the sum of $120 annually from wholesale trade vehicles operated in the city. The court, without any evidence before it, held that "in our opinion the license of $120 a year is far beyond an amount requisite for the purpose of regulating the use of the streets by wholesale trade vehicles, including the expense of issuing the license." In Sperling v. Valentine, 28 N.Y.S.2d 788, a local law provided for the licensing of itinerant jobbers of foodstuffs in the city, imposing an annual license fee of $100 to $250 for each vehicle used by such jobbers. The court, without evidence before it, held the charge too excessive and the ordinance void. In Root v. Mizell, 95 Fla. 979, 117 So. 380, an ordinance exacted $25 per month, or $300 a year, for the inspection of a dairy five miles beyond the city, while charging no fees for inspection for dairies within the 5-mile limit. The ordinance was held to be unreasonable. In North Star Line v. Grand Rapids, supra, a city ordinance required an applicant for a license from the city to operate an interurban bus to pay an annual fee of $15. The court held the fee to be excessive, and stated, among other things:

"In this connection it must be borne in mind that each of these interurban bus routes passes through numerous villages and townships and enters and passes through one or more cities other than Grand Rapids. Each of these municipalities has the same constitutional right as Grand Rapids to the reasonable control of their streets, alleys and public places. Anything like unrestricted license fees imposed by each of such municipalities would render the operation of interurban busses impossible. * * * It is self-evident that if there is little or no need for supervision or regulation in addition to that effected by the state and if the city streets are not subjected to an additional burden by interurban bus traffic, the justification for requiring a license at all is meager to say the least."

In that case testimony was introduced to show the number of commercial vehicles in the city as well as the total number of vehicles, showing that the interurban busses constituted only a small portion of the total. We do not have such evidence before us. There is testimony, however, that the main trouble given by plaintiff's vehicles is double parking, and hindering other vehicles from leaving the curb along which they are parked. This has some tendency to show that the business district in the city is crowded with vehicles. The testimony further shows that other trucks are supervised by the traffic officers and give the same trouble. This shows that at best the trouble given by the plaintiff's vehicles is but a part of the trouble given to the traffic officers, and that trouble has not been given by reason of the peculiar character of load, differing from loads on other trucks and trailers in connection with which no fees are exacted. True, the city attempted to justify the charge of the fees partially on the ground that inspection of its vehicles is perhaps necessary. Many cases hold that when the state has occupied a field of regulation, an ordinance must give way. See e.g. Bay Cities Transit Co. v. Los Angeles, 16 Cal. 2d 772,108 P.2d 435. But it is not necessary to decide herein whether notwithstanding that, the city, too, may not require inspection. The ordinance does not provide for inspection. It gives no power to the officers except to escort them through the city, and assign a parking place. If, however, it implies that the vehicles may be inspected, it is readily seen, under the testimony of this case, that the need for it is limited. The chains have never come loose, and were never seen to come loose by the officials of the city. They "might" come loose, as the chief of police testified. But the state has provided for inspection, and in fact may appoint the traffic officers in Cheyenne to act as its agent, in which event no fees are charged. Furthermore, the plaintiff's testimony shows not alone that its drivers inspect the chains from time to time, but also that the load carried by plaintiff is at least as safe as the loads of other trucks and trailers. We think that the plaintiff made a prima facie case to show that the fees exacted as to plaintiff are excessive and that the ordinance is void on that account, as to it.

We should mention the fact that after oral argument and submission of this case our attention was called to section 72-121 Rev. St. 1931, providing that municipalities cannot make any charge for the free use of the street. That section was not called to our attention in the Kenosha case. Counsel for the city, in a supplemental brief, claim that it was repealed by section 72-103, passed in 1929. It is not necessary to pass upon the effect of these sections, and we do not do so, particularly since full argument has not been had thereon. Nor is it necessary to decide other points raised herein.

The judgment of the trial court is reversed with direction to enjoin the city from the further enforcement of the ordinance as to plaintiff, and for further proceedings, if any, not inconsistent herewith.

Reversed with directions.

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