Wilson v. City of St. Robert

714 S.W.2d 738, 1986 Mo. App. LEXIS 4253
CourtMissouri Court of Appeals
DecidedJune 17, 1986
DocketNo. 14018
StatusPublished
Cited by1 cases

This text of 714 S.W.2d 738 (Wilson v. City of St. Robert) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. City of St. Robert, 714 S.W.2d 738, 1986 Mo. App. LEXIS 4253 (Mo. Ct. App. 1986).

Opinion

HOGAN, Presiding Judge.

Plaintiff Dewey Wilson brought this action against the City of St. Robert, a city of the fourth class, and certain of its elected and appointed officers as such, seeking to enjoin the application and enforcement of Ordinance No. 211 of the City of St. Robert against the plaintiff on the general ground that plaintiff was doing business as a common carrier of passengers operating under a certificate of convenience and necessity issued by the Public Service Commission. A temporary injunction — or what we regard as such — was issued. Thereafter a hearing was held, evidence was received, and the trial court dissolved its temporary order. The plaintiff now appeals.

Mo.R.Civ.P. 921 carefully distinguishes between a “preliminary injunction” and a “restraining order.” As noted, the initial order issued in this case appears to be a temporary injunction. The order dissolving that injunction is therefore final and ap-pealable. Niemann v. Carps, Inc., 541 S.W.2d 712, 714[1] (Mo.App.1976); Perseverance Common School District No. 90 v. Honey, 367 S.W.2d 243, 246[1] (Mo.App.1963). The record filed is minimal to the point of being nonexistent, but from the pleadings filed we are able to ascertain that the plaintiff’s “mini-buses” — those involved in this case — are 9-passenger station wagons.2 As the merits of the appeal may be resolved upon the meager record by resort to well-established principles of law, we undertake to dispose of the cause finally upon its merits. Mo.R.Civ.P. 84.14; Dickey Co., Inc. v. Kanan, 486 S.W.2d 33, 36[1] (Mo.App.1972).

Plaintiff Wilson operated vehicles as passenger carriers between “the gate at Fort Leonard Wood” to the cities of St. Robert and Waynesville, and “back and forth.” The vehicles are equipped with “two-way radio systems.” On redirect examination plaintiff again testified that the “main purpose” of his business was “to transport people from Fort Leonard Wood to Waynesville and St. Robert, and from Waynesville and St. Robert to Fort Leonard Wood.” It is conceded that plaintiff’s vehicles sometimes pick up and discharge [740]*740passengers within the City of St. Robert. They wait in line with regular taxicabs in front of motels and at other regular stopping places.

Plaintiff was operating under a Certificate of Convenience and Necessity issued by the Public Service Commission on March 16, 1984. This certificate grants authority to the plaintiff to operate as a common carrier as follows:

“INTRASTATE:
Irregular: Transportation of passengers in nine-passenger limousine service between Fort Leonard Wood, Missouri and Waynesville, Missouri, on a call-and-demand, non-scheduled basis. Effective 4/24/80
Transportation of passengers (excluding railroad crew members) and their baggage in vehicles designed to carry not more than twelve (12) passengers between points in Pulaski County, Missouri, on the one hand, and, on the other, all points in Missouri, irrespective of the location of such points on the route or routes of regular route common carriers where through or joint service has been authorized or established. Effective 3/15/84”

The ordinance which the respondent city seeks and intends to enforce against the plaintiff was enacted January 5,1981. It is styled “AN ORDINANCE TO REGULATE AND LICENSE THE TAXICAB BUSINESS, TAXICABS AND TAXICAB DRIVERS AND TO IMPOSE A LICENSE TAX THEREON;' PROVIDING PENALTIES FOR VIOLATIONS....” The ordinance has several sections which are germane to this appeal. Section 2(B) of the ordinance provides:

“ ‘Taxicab Business’ shall mean the business of offering to the public the service of transportation of passengers on other than fixed routes for a charge or fee.”

Section 2(C) of the ordinance provides that:

“ ‘Taxicab’ shall mean a motor vehicle used in a taxicab business.”

Section 3 of the ordinance provides:

“No person shall engage in, operate or conduct a Taxicab Business within the City without having a current license therefor as provided by the terms of this Ordinance.”

Section 4 of the ordinance further provides that:

“No person shall operate a taxicab within the City without having a current license therefor as provided by the terms of this Ordinance; provided, however, that this Ordinance shall not prohibit a person from driving a taxicab through the City without stopping in the City.” (Our emphasis.)

The ordinance also provides an elaborate licensure provision and generally restricts the operation of taxicabs in such manner as to protect the public safety. We do not propose to set it forth at length. We must however, set forth Section 25, which reads:

“The maximum number of passengers to be [carried] by a taxicab shall be the seating capacity of the vehicle as recommended by the manufacturer of said vehicle excluding the driver.”

There was evidence that no attempt was made to apply or enforce the ordinance as to the plaintiff’s operation until October of 1984. Then, as the city concedes in its brief, the Mayor and Board of Aldermen urged the enforcement of the ordinance against the plaintiff and someone advised the plaintiff of the city’s intention. The two parties, without any indication of any spirit of mutual forbearance or cooperation, urge us to declare that the ordinance and the provisions of Chapter 390, RSMo 1978, are in direct conflict. We are also urged to declare the ordinance “void.” We decline.

There are several rules of law which control this case. Most of those principles were stated in City of Raytown v. Danforth, 560 S.W.2d 846 (Mo.banc 1977). There, the court held:

“ ‘A municipal corporation such as [defendant] is a creature of the legislature, possessing only those powers expressly granted, or those necessarily or fairly [741]*741implied in or incidental to express grants, or those essential to the declared objects of the municipality. Any reasonable doubt as to whether a power has been delegated to a municipality is resolved in favor of nondelegation.’ Anderson v. City of Olivette, 518 S.W.2d 34, 39 (Mo.1975).”

City of Raytown v. Danforth, 560 S.W.2d at 848. The court went on to say:

“Statutes relating to the same subject must be read together and if possible in harmony, and provisions of one having special application to a particular subject will be deemed a qualification to another statute general in its terms. [Citations omitted.]”

Id. at 848. Moreover, the court suggested that when inconsistencies appear in statutes which are in pari materia, the later statute ordinarily prevails. Id. at 848.

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Cite This Page — Counsel Stack

Bluebook (online)
714 S.W.2d 738, 1986 Mo. App. LEXIS 4253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-city-of-st-robert-moctapp-1986.