175 S.E. 219 | W. Va. | 1934
The object of this suit is to restrain the enforcement of a traffic ordinance.
The common council of Wheeling, acting under its authority to regulate vehicular traffic upon its streets and alleys, on March 15, 1932, enacted and adopted a traffic ordinance limiting the number of motor bus stops within a defined congested area (of .093 square mile), prohibiting the carrying of passengers by motor busses in excess of seating capacity, and imposing a mileage tax on each motor vehicle operated by public carriers over regular routes or between fixed termini. Upon the bill, attacking these provisions of the ordinance as being unreasonable, discriminatory and in restraint of trade, the circuit court awarded a preliminary injunction, inhibiting their enforcement by the city or its chief of police. After a full hearing, the interlocutory order seemingly was perpetuated in its entirety; the trial chancellor being of opinion that the limitation on bus stops was an unreasonable regulation of traffic and that the city was without authority to levy a mileage tax on motor vehicles.
Plaintiff is an Ohio corporation engaged in operating motor busses on a fifteen-minute schedule between Bellaire, Ohio, (its principal place of business), and Wheeling, West Virginia. The route in Wheeling, as defined in the certificate of convenience and necessity issued to plaintiff by the State Road Commission, enters the congested district from the Ohio side over a steel bridge across the Ohio River, and, after making a circuit of an area of .054 square mile, re-crosses the steel bridge into Ohio. The two bus stops permitted by the ordinance along the route are, by direct line of travel, about 1700 feet apart. Passengers from Ohio to points of destination within the circumscribed area and passengers from points within this area to Ohio, in leaving or boarding plaintiff's busses at the nearer stop, will probably not be required to travel in any case more than 1,150 feet, and, of course, in most instances, a much shorter distance.
In support of its contention that the limitation of stops *295
is unreasonable, discriminatory and violative of the Commerce Clause of the Federal Constitution, plaintiff relies uponBush Sons Co. v. Maloy,
We do not believe that the ordinance, under consideration, in limiting the bus stops within the congested district of the city as applied to the busses operated by plaintiff, constitutes a direct burden upon or interference with interstate commerce. In Farnum v. Public Utilities Commission, (R.I.)
The village of Bridgeport, Ohio, located just across the Ohio River from Wheeling, is also served by plaintiff's busses operating between Bellaire and Wheeling. On April 5, 1932, the common council enacted a traffic regulation similar to the Wheeling ordinance, defining the congested district of the village and limiting the number of bus stops therein. The bill of Eastern Ohio Transport Corporation, seeking to restrain the enforcement of the regulation, was sustained by the court of common pleas of Belmont County, Ohio. Upon an appeal, the Court of Appeals, in reversing the action of the trial court and dismissing the bill, stated: "The certificate received by the plaintiff from the public utilities commission, under which it is exercising, does not designate stops for automobiles for the purposes of taking on and discharging passengers within the corporate limits of the village of Bridgeport. The only rightplaintiff has to stop for the purpose of taking on passengersor discharging *299 them is in interstate traffic. The enforcement of this ordinance does not limit the conditions of the state license or certificate of the plaintiff company. The certificate of convenience and necessity granted by the state commission to a corporation for the purposes of transporting by motor vehicles passengers for hire does not convey to such motor company any property right in the streets or public highways over which it is permitted to operate its bus. * * * The enforcement of this ordinance may cause the plaintiff company to lose some of the passenger trade which it would otherwise receive if its right to stop was not limited, but the ordinance in preventing it from stopping except at designated stops does not take away or destroy any of its property rights. It still has the right to operate its motor vehicles, carrying passengers over the streets of Bridgeport in interstate business, just as before."Eastern Ohio Transport Corporation v. Village of Bridgeport,
We are of opinion that the mileage tax for the upkeep of the streets is also valid as a traffic regulation, if the city has authority from the state to impose the charge. Both plaintiff and defendant rely upon Sprout v. City of South Bend, (Ind.)
Although municipalities are authorized under Code 1931,
It is uncertain in the decree and memorandum of opinion whether the permanent injunction is confined to the provisions of the ordinance exacting a mileage tax and limiting the number of bus stops, or extends to the provision restricting the number of bus passengers to the seating capacity of the vehicles. The memorandum and the introductory part of the decree indicate that the remedy is intended to be restricted to the two first provisions, while the adjudication would seem to include all three provisions. If it was intended by the order to enjoin the enforcement of the provision of the ordinance limiting the number of passengers to the seating capacity of busses, we are of opinion to also reverse the decree in this respect.
Counsel for plaintiff contend that the provision of the ordinance limiting the seating capacity of busses is invalid because it conflicts with the road law, which, as they insist, permits motor vehicles to carry passengers without limit regardless of seating capacity. We find no *303 such authorization by statute, and the recent act considered under the mileage tax provision impliedly limits the number of bus passengers to the capacity of the vehicles. The traffic regulations issued by the road department under Code, 1931, 17-8-28, do not, in our opinion, justify the contention.
The decree in so far as it enjoins the city from enforcing the mileage tax is affirmed, and, in all other respects, reversed.
Affirmed in part; reversed in part; remanded.