Cutrona v. Mayor of Wilmington

127 A. 421, 14 Del. Ch. 434, 1924 Del. Ch. LEXIS 39

• Court: Supreme Court of Delaware
• Decided: November 28, 1924
• Status: Published

Opinion

Harrington, J.,

delivering the opinion of the court:

The facts show that the Street and Sewer Department neither suspended nor revoked appellant’s permits to operate his busses over the streets of the City of Wilmington in the transportation of passengers between that city and the town of New Castle and intermediate points, but that such Department, acting under the resolution of March 31, 1922, refused to grant him operating permits for the year 1924.

It also appears from such facts that this resolution made it unlawful for the appellant to operate his busses on the streets of the City of Wilmington, without having first secured permits from the Street and Sewer Department of the city; and that no limitations or conditions were imposed on the right of the Street and Sewer Department to grant or refuse such permits.

This case, therefore, squarely raises two questions:

1st. Admitting for the sake of argument that the Legislature gave the Street and Sewer Department the right to enact an ordinance or resolution" making it unlawful to operate a motor bus for the transportation of passengers for hire on the streets of the City of Wilmington, without a permit from that Board, could such an ordinance legally give that Department the absolute power to grant or refuse the permits provided for regardless of whether its action in the particular case should be reasonable or otherwise?

2nd. Did the Board of Directors of the Street and Sewer Department of the City of Wilmington have the requisite legislative authority to pass such a resolution, or was their power confined to the enactment of ordinances merely regulating and controlling the operation of such busses in a reasonable manner?

The Chancellor decided both of these questions in favor of the City of Wilmington.

Any consideration of the first question is rendered unnecessary by the admission in appellant’s brief that the State by proper legislative action could not only have regulated or controlled any business conducted on the public streets and highways of the State, but that it could also have prohibited such business; and by the further admission that the State by appropriate legislation could have delegated its authority in this respect to the City of Wilmington.

The second question is, therefore, the only question that need be considered by us.

In Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781, L. R. A. 1915F, 840, the court, in considering the right of a municipal corporation to prohibit the use of its streets by motor busses for the transportation of passengers for hire said:

“Plainly, therefore, the result of this inquiry depends, not upon the power of the Legislature over the subject-matter of relator’s alleged right, but upon the action of the Legislature respecting the same. That he has no natural or indefeasible right to maintain upon a public highway a vehicle for the carriage of passengers for hire is unquestionable.”

That a municipal corporation has no power except by express legislative grant or by fair and necessary implication, because of being incident to the powers expressly granted or essential to carrying them out, is beyond question. Coyle v. Mclntire, 7 Houst. 44, 30 Atl. 728, 40 Am. St. Rep. 109; Gray v. Wilmington, 2 Marv. 257, 43 Atl. 94.

The City of Wilmington was incorporated in 1882 by Chapter 207, Volume 17, Laws of Delaware. Among other things its charter authorized the Council to enact ordinances “generally to prescribe and regulate the use of the highways, streets, squares, lanes and alleys of the City, and to have and exercise control over the same * * * subject * * * to the general supervision and control of the General Assembly.”

The Legislature, by Act of April 20th, 1887 (Chapter 188, Volume 18, Laws of Delaware), subsequently created the Board of Directors of the Street and Sewer Department of the city and conferred upon that Board “entire jurisdiction and control within the limits of said city of the streets, squares, lanes, roads or alleys thereof, said jurisdiction and control to extend from building line to building line.” In addition to the language above quoted, this act also provided that said board should — •

“have the same rights and powers, and be vested with the same authority over the said streets, squares, lanes, roads” etc., “ * * * as are now held and exercised by ‘the Council’ of the * * * city * * * under the charter, laws, ordinances and regulations appertaining to or in any manner made for the government of said city.”

The meaning of the language used and, therefore, what powers were granted to the city or its Street and Sewer Department by the acts above quoted, is for us to determine.

It.appears from such acts that the Legislature first gave the City Council in its charter the right by ordinance, “generally to prescribe and regulate the use” of the city streets and to “exercise control” over them. It subsequently created the Street and Sewer Department of the city, not only giving it “entire jurisdiction and control" over such streets but also in the same act, in general and sweeping language, transferred all the rights, powers and authority that the City Council had over them to that Department.

The appellant contends that the city, acting through its Street and Sewer Department, merely had the power to regulate the use of the public streets and that' the power to prohibit their use, even though for business purposes, was not included in that power.

In support of this contention he cites the following cases: Merritt v. Toronto, 25 Ont. 256; Purvis v. City of Ocilla, 149 Ga. 771, 102 S. E. 241; City of Elkhart v. Lipschitz, 164 Ind: 671, 74 N. E. 528; Quigg v. State, 84 Fla. 164, 93 So. 139; Ex parte Theisen, 30 Fla. 529, 11 So. 901, 32 Am. St. Rep. 36; City of Burlington v. Bumgardner, 42 Iowa, 673; Ex parte Patterson, 42 Tex. Cr. R. 256, 58 S. W. 1011, 51 L. R. A. 654.

As the language used is not confined to the word “regulate, ” but also includes other language of the broadest import, it is riot necessary for us to determine that question. The following cases are, however, instructive in determining to what extent the power to regulate the use of the streets may ordinarily justify a prohibition of their use. Attorney General v. Boston, 142 Mass. 202, 203, 7 N. E. 722; St. Louis v. Western Union Telegraph Co., 149 U. S. 465, 13 Sup. Ct. 990, 37 L. Ed. 810; Ex parte Patterson, 42 Tex. Cr. 256, 58 S. W. 1011, 51 L. R. A. 654. See also the following cases construing the clauses of the Federal Constitution authorizing Congress to regulate commerce between the states: Lottery Case, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492; U. S. v. Popper, (D. C.) 98 Fed. 423; Bennett v. U. S., 194 Fed. 630, 114 C. C. A. 402; U. S. v. Hoke, (D. C.) 187 Fed. 992; Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108; Addyston Pipe & Steel Co. v. U. S., 175 U. S. 226, 20 Sup. Ct. 96. 44 L. Ed. 136.

The words “entire jurisdiction and control,” used with respect to the powers of the Street and Sewer Department over the public streets of the City of Wilmington, are words of simple import that would seem to require no interpretation. The word “jurisdiction,” however, clearly means “power” or “authority.” 2 Words and Phrases, Second Series, p. 1276. As thus defined, the words used are almost identical with the words “exclusive control and power,” used in the City Charter involved in Greene v. San Antonio, (Tex. Civ. App.) 178 S. W. 6. In that case the court on a reargument of the case said:

“Appellant desired to use the streets for private purposes of gain, and the City has the absolute right to prohibit the use of the streets for his private business, and in case it gave permission for such use had the right to compel the payment of a license fee.”

In West, et al., v. City of Asbury Park, 89 N. J. Law, 402, the language of the charter with respect to the authority of the city over its streets was very general. In construing this language the court said:

“We think all the provisions [of the ordinances] we have recited are well within the expressed powers given to the council, or within the powers necessarily inferred from the general clause. That like powers may be implied from the general control of streets has long been settled. We need refer only to the leading case of Commonwealth v. Stodder, 2 Cush. 562.”

But as we have already seen by reference to the City Charter, the power “to prescribe * * * the use” as well as the power to “regulate the use” of the city streets was also given to the Street and Sewer Department. The word “prescribe” ordinarily has a broader meaning than the word “regulate.” It has been variously defined to mean “to lay down authoritatively as a guide, direction or rule; to impose as a permanent order; to dictate; to appoint; to direct; to give as a guide, direction or rule of action; to give law.” Loewy v. Gordon, 129 App. Div. 459, 114 N. Y. Supp. 211; People v. The Board of Estimates, 146 App. Div. 515, 131 N. Y. Supp. 604; Heiferman v. Scholder, 134 App. Div. 579, 119 N. Y. Supp. 520; Mansfield v. The People, 164 Ill. 611, 45 N. E. 976. See also substantially to the same effect, Field v. The Auditor, 83 Va. 882, 3 S. E. 707.

The same word has also been defined to mean “to fix definitely.” Shannon v. The Village of Hinsdale, 180 Ill. 20, 54 N. E. 181, and in Field v. The Auditor, 83 Va. 882, 3 S. E. 707 (supra), the court pointed out that the distinction between the word “prescribe” and the word “determine” was far from clear.

When, therefore, the meaning of the word “prescribe,” as above defined, is read in connection with the word “use,” as well as in connection with the words “entire jurisdiction and control,” it is clear that the Legislature intended to grant broad powers over the city streets to the Street and Sewer Department, and that the enactment of the ordinance of March 31, 1922, requiring a permit to use such streets for the operation of motor busses transporting passengers for hire, was within the powers granted that Department.

Bullock v. The Wilmington City Ry. Co., 5 Penn. 209, 64 Atl. 242, is in no way inconsistent with this conclusion. While the same statutes involved here were considered by the court in that case, the sole question was whether the Street and Sewer Department or the City Council of Wilmington, had the right to impose certain regulations as to the equipment of trolley cars used on the streets.

That the city, acting either through its Council, or its Street and Sewer Department had the right to impose the regulations in question was, however, conceded.

It is true that the Legislature on April 27, 1923 (Chapter 121, Volume 33, Laws of Delaware), passed the following act:

“That the Street and Sewer Department of the City of Wilmington is hereby given the power and authority to determine over what streets of said city motor or automobile busses of over seven passenger capacity, for hire, shall operate, and the said Street and Sewer Department may also determine the number of licenses which shall be issued to busses for operation, for hire, on any streets of the said city.”

It is urged that this act conclusively shows that the Legislature had not previously intended to give either to the city or to its Street and Sewer Department the power to prohibit the business of operating motor vehicles for transportation of passengers for hire on its streets.

We are, however, unable to agree with this contention.

This act does not purport to take away any of the powers over the City streets previously granted to the Street and Sewer Department. • The terms of the act creating that Department are broad and sweeping and, as we have already said, clearly include the powers purported to be granted to the same Department by the subsequent act.

The Act of March 31, 1921 (Chapter 115, Volume, 32 Laws of Delaware), authorizing the Mayor and Council of Wilmington to require license fees from the owners of all motor vehicles carrying passengers for hire operating in the city, is purely a revenue measure and in no way affects the rights previously granted to the Street and Sewer Department.

Notwithstanding that fact, the Legislature must have questioned whether the effect of this act was to transfer jurisdiction over the kinds of motor busses referred to in it to the City Council and must have passed the Act of April 22, 1923, to prevent the possibility of any such construction. That being true, the Act of April 27, 1923, merely constituted a legislative declaration or construction of the meaning of the prior act, and, therefore, of the powers of the Street and Sewer Department.

The Legislature, within the prescribed constitutional limitations, has the exclusive power to make laws.

It is true, as a general rule, that its construction of a statute is entitled to consideration and will in some cases be controlling, but that it cannot authoritatively declare what the law is or has been, is well settled. That is a judicial function belonging to the court. Lewis’ Sutherland on Statutory Construction, secs. 358, 576. In the latter section the learned author said:

“So far as an act in terms professes to declare the past or present meaning of an existing statute, it is not legislative and not binding on the courts.”

In Jones v. Wootten, 1 Harr. 77, in discussing this question, the court said:

“If that act is to be considered as an act declaratory of what the law was before its passage, it cannot as such have any weight with the court. Each department of our government must operate and be confined within its constitutional limits. The power that makes, is not the power to construe a law. The Legislature may declare what the law shall be, but not what it is or has been. That power belongs to the judicial department alone, and they in discharging their duty are to form their own opinion, and are not to be the mere organ of the Legislature and declare its opinion of what the law is or has been. This proposition is one so clear that the Supreme Court of the United States, in the case of Ogden v. Blacklidge, 2 Cranch, 977, declined hearing an argument in its support, and stopped the counsel who was about to sustain it.”

See, also, to the same effect Com. v. Warwick, 172 Pa. 140, 33 Atl. 373; People v. Supervisors, 16 N. Y. 425, 431; Gough v. Pratt, 9 Md. 526, 532; Watson, et al., v. Hoge, 7 Yerg. (Tenn.) 344-353.

In Rosencrans v. U. S., 165 U. S. 257, 17 Sup. Ct. 302, 41 L. Ed. 708, the Supreme Court of the United States used the following apt language:

“When there are statutes clearly defining the jurisdiction of the courts the force and effect of such provisions should not be disturbed by a mere implication flowing from subsequent legislation. In other words, where Congress has expressly legislated in respect to a given matter that express legislation must control, in the absence of subsequent legislation equally express, and is not overthrown by any mere inferences or implications to be found in such subsequent legislation.”

It is true that the facts of the case cited differ from the present case, but the same principles apply to the statute involved here.

The powers of the Street and Sewer Department must, therefore, depend upon the provisions of the act creating that Department and the intent of that act is in no way affected by the subsequent acts above referred to.

The Public Utility Act of March 29, 1911, applying to the City of Wilmington (Chapter 206, Volume 26, Laws of Delaware) is also relied on as showing that the Legislature, notwithstanding the broad language of Chapter 118, Volume 18, Laws of Delaware, never intended to give the Street and Sewer Department absolute and entire jurisdiction and control over the streets of that city.

After providing for a Public Utility Board, Section 4 of the Utility Act provides:

“The said Board shall have supervision over all public utilities operating within the limits of the * * * city of Wilmington; and the term ‘public utilities’ as used in this act is herein defined to include all street railway,' express, traction, gas, electric light, heat and power, water, telephone and telegraph corporations, associations or joint stock companies operating within the limits of the city of Wilmington for public use.”

This act does not support the appellant’s contention.

Granting for the sake of argument that by it the Legislature gave to the Public Utility Board some of the same powers that it had previously given to the Street and Sewer Department, that fact does not in any way affect the construction of the Street and Sewer Department Act.

A municipal corporation is a branch of the State government, and in passing the Utility Act, the Legislature merely exercised an undoubted right to take from that department of the city some of the powers that it had originally delegated to it.

Independent of the rights expressly reserved in the statute, its right to do this is clear. Lewis' Southerland on Statutory Construction, Sec. 1310; New England Telephone and Telegraph Co. v. Boston Ter. Co., 188 Mass. 397, 65 N. E. 835; United R. R. & Canal Co. and Pa. R. R. Co. v. Jersey City, 71 N. J. Law, 80, 58 Atl. 71. This fact, therefore, throws no light whatever on the intent of the Legislature with respect to the provisions of the act creating the Street and Sewer Department.

One of the questions before us is whether the Street and Sewer Department in 1922 had the power to pass the ordinance in question or whether such power, if it ever existed, was then vested in Utility Commission of the City of Wilmington by the act of March 29, 1911, above referred to.

This act gave the board created by it'“supervision over all public utilities operating within the limits of the city.” Regardless of whether the act itself does or does not specify what shall be considered a public utility within its meaning, such act has never been construed to authorize the Utilities Commission to grant or refuse a franchise, permit or other right to use the city streets; and no such right could arise from the language used. The board is merely given “supervision” over the utilities “operating” within the city. No such powers could ordinarily be implied from the word “supervision” even if it were not used in connection with the word “operating.” McCarthey v. Board of Supervisors of Co. Merced, 15 Cal. App. 576, 115 Pac. 458; N. Y. Life Ins. Co. v. Rhodes, 4 Ga. App. 25, 60 S. E. 828, 831; 4 Words & Phrases, Second Series, p. 797.

It is further argued that the Legislature, without expressly granting the tight, has by regulatory legislation impliedly recognized the lawfulness of the business of operating motor busses for the transportation of passengers for hire on the public highway of the State, and that the City of Wilmington, therefore had no power to interfere with that right with respect to the use of the public highways within its limits.

In support of this contention, the appellant refers to the to the Act of March 28, 1921 (Chap. 193, Vol. 32, Laws of Delaware), to the Act of March 27, 1923 (Chap. 5, Vol. 33, Laws of Delaware) and to the Act of March 3d, 1921. (Chap. 115, Vol. 32, Laws of Delaware).

The Act of March 28, 1921, authorizes the Secretary of State to revoke or suspend the operating license of any person who is shown to be incompetent to operate a motor vehicle, providing for an appeal by the aggrieved party to the Court of General Sessions.

The Act of March 27, 1923, merely provides that on and after the first day of January, 1924—

“No person shall operate a public service motor vehicle transporting passengers for hire upon any public street or highway of the state until he shall have obtained and is in possession of a public service motor vehicle driver’s permit issued to him by the state, and no person whose occupation is that of driving a motor vehicle for a resident of the state for hire, shall operate such motor vehicle upon any public street or highway of the state until he shall have obtained and is in possession of a chauffeur’s license issued to him by the state.”

That the Act of March 3d, 1921, is purely a revenue measure has already been stated.

Even conceding the correctness of the principle relied on, where the Legislature has neither prohibited nor authorized the prohibition of the use of the streets of the city by motor vehicles of the kind in question (Dickey v. Davis, 76 W. Va. 576, 85 S. E. 781, L. R. A. 1915F, 841), we are unable to see how the statutes in question have any application to appellant’s contention.

It is also clear from the facts of this case that no question of interurban bus lines is involved; that being true, neither Argenta v. Keath, 130 Ark. 334, 197 S. W. 686, L. R. A. 1918B, 888; Dent v. Oregon City, 106 Or. 122, 211 Pac. 909, nor the provisions of other municipal charters of this State need be considered by us.

For the reasons above given the decree of the court below is affirmed.