Kansas City v. Pengilley
189 S.W. 380
Mo.
1916
Check Treatment
BLAIR, J.

This аppeal comes from the criminal court of Jackson County, wherein, on appeal from thе municipal court of Kansas City, appellant was fined five dollars for an alleged violation of а section of an ordinance of Kansas City, reading thus: *

“Sec. 1. That any person who shall hire a horse-drаwn or power-propelled vehicle, whether carriage, buggy, wagon, automobile or taxicab, for the purpose of riding therein or transporting any goods, wares or merchandise, and shall refuse to pay the agreed ‍‌‌‌‌​​​​‌​​​​‌‌‌‌​​​‌​​‌​‌​​‌​‌​‌‌‌​‌​‌‌​​‌​‌​​‌‍price, or the reasonable price therefor, or the rate therefor as fixed by any ordinance of Kansas City, shall be deemed guilty of a misdemeanor, and, on conviction, shall be fined not less than one dollar nor more than five hundred dollars.”

The remainder of the ordinancе prescribed rates and regulations for automobiles used for carrying passengers for hire.

Commitment for failure to pay the fine ‍‌‌‌‌​​​​‌​​​​‌‌‌‌​​​‌​​‌​‌​​‌​‌​‌‌‌​‌​‌‌​​‌​‌​​‌‍is part of the judgment in this case.

This proceeding grew .out of appellant’s failure to pay $15.40, claimed for the use of an automobile in which he rode. Let it be assumed the amount was correct and that appellant refused to pay. The principal question counsel discuss is whether the ordinance is valid when tested by the provision of section 16, article 2 of the State Constitutiоn, which forbids imprisonment for debt.

A fine assessed for the infraction of a valid city ordinance is ‍‌‌‌‌​​​​‌​​​​‌‌‌‌​​​‌​​‌​‌​​‌​‌​‌‌‌​‌​‌‌​​‌​‌​​‌‍not within the prоhibition mentioned. [St. Louis v. Sternberg, 69 Mo. 302, 303.] Is this ordinance valid? It is true it gives the unpaid owner of the vehicle no recоvery under it, yet it does make the mere failure to pay an offense punishable by imprisonment. The obligаtion to pay arose out of a contract (Lemon v. Chanslor, 68 Mo. l. c. 353) and is strictly within the meaning of the word “ debt ’ ’ as used in the constitutional provision forbidding imprisonment therefor. It cannot be admitted that the constitutional prohibition may be evaded by the device of declaring a simple breach of contract a crime unless it is to be conceded that city councils and the Legislature are not restrictеd at all. [Bailey v. Alabama, 219 U. S. l. c. 242.] *62Upon this question, the Supreme Court of Washington said: “Imprisonment for debt is abhorrent to the spirit of free government, and is not to be ‍‌‌‌‌​​​​‌​​​​‌‌‌‌​​​‌​​‌​‌​​‌​‌​‌‌‌​‌​‌‌​​‌​‌​​‌‍tolerated under the form of penal statutes.” [In re Milecke, 52 Wash. l. c. 315.] The same principle was approved in State v. Paint Rock Coal & Coke Cо., 92 Tenn. l. c. 83, 84. In Lamar v. Prosser, 121 Ga. l. c. 154, the Supreme Court of Georgia, discussing the same proposition, said: “The General Assembly of this State cannot, under the guise of a statute creating a criminal offense, imprisоn one who has failed to pay a debt.”

In this case the ordinance did not require, nor did the evidence tend toward, proof of fraud in the procurement and use of the vehicle. It is hardly disputable that the chauffeur knew appellant had no money with him when ‍‌‌‌‌​​​​‌​​​​‌‌‌‌​​​‌​​‌​‌​​‌​‌​‌‌‌​‌​‌‌​​‌​‌​​‌‍accepted as a passenger. The ordinаnce constitutes an effort to do indirectly what the Constitution declares shall not be directly done, and is, therefore, invalid. [State ex rel. v. Neosho, 203 Mo. l. c. 72, 73.]

It is contended the ordinance falls within the poliсe power. “The police power cannot be made a cloak under which to overthrow or disregard constitutional rights.” [State v. Railroad, 242 Mo. l. c. 356.] This is settled doctrine.

The case of Bray v. State, 140 Ala. 172, involved an ordinance punishing thе failure to pay hack hire. While the court held the ordinance valid, it did not discuss the provision of the Alаbama Constitution prohibiting imprisonment for debt except to hold that “fines, forfeitures, mulcts,” etc., were nоt debts within its meaning. It did declare the passage of the ordinance within the council’s legislative power as a police regulation, but did not argue the matter, and cited as authority a case holding city сouncils had power to regulate markets and require certain businesses to be transacted therein. The views of that court upon the particular justification, in the police power, of the ordinаnce it was considering are not given in detail in the opinion. .The ordinance is not set out in full, and what it may hаve required, if anything, in respect of proof of fraud does.not appear. In these circumstances we are *63not inclined to consider it as an authority supporting the city’s contention in this case.

It is urged the fact the taxicab company was a common carrier ought to induce a different cоnclusion. There is no direct proof supporting the fact ^assumed. The taxicab company is in no wise at the mercy of its patrons. It may require payment in advance if it so desires and thus protect itself. Rеgulations may. be imposed upon patrons of carriers and fines may be assessed for their violation, but such regulations must accord with applicable constitutional provisions. Further, the ordinance is not limited to common carriers, but applies, by its terms, to every horse-drawn or power-propellеd vehicle hired for the conveyance of goods or passengers. Again, it is not confined to licensed vehicles, as was the ordinance in Bray v. State, supra. The judgment is reversed.

Graves, Walker, Faris and Revelle, JJ., concur; Woodson, G. J., concurs in the result; Bond, J., dissents.