State v. . Sasseen

OlaRksoN, J. We think there is no error in the court below finding the defendants “not guilty” on the special verdict. In the special verdict is the following part of the ordinance of the city of Charlotte, N. C.: “(A) Said person, firm or corporation shall have filed with the treasurer of the city of Charlotte, a policy or policies of liability insurance with a reliable and responsible company authorized to do business in the State of North Carolina, in form to be approved by the city attorney, indemnifying the licensee as to each cab, taxi-cab, ‘U-Drive-It’ or for-hire *647 ear or automobile in the sum of five thousand dollars ($5,000) for injury to one person, or ten thousand dollars ($10,000) for injury to more than one person, and one thousand dollars ($1,000) property damage, in any one action for which said driver or owner of cab, taxicab, TT-Drive-It’ or for-hire car or automobile may be held liable. (B) In lieu of such insurance policy or policies, said person, firm or corporation may deposit like amounts with the treasurer of the city of Charlotte in cash, or securities to be approved by the city manager, indemnifying persons who may be injured, or whose property may be damaged by the negligent operation of such cabs, taxi-cabs, TT-Drive-It’ or for-hire cars or automobiles upon condition that action may be brought thereon by any person for the amount of such damage to the full amount of such cash and/or securities deposited.” Under the above, the defendants are limited to (1) “A policy or policies of liability insurance.” (2) In lieu of the policy or policies of liability insurance, “cash or securities.” The ordinance, expressio unius exclusio alterius, omits a bond by a solvent personal surety or sureties. It is a matter of common knowledge that a liability policy in an insurance indemnity company is almost prohibitive, few companies write them. Cash or liquidated securities for so large a sum makes it hard measure and almost impossible to comply with the ordinance by the average taxi-cab owner or owners. We are not discussing the policy of the ordinance in reference to protecting persons or property injured through negligence, but to the legality of the ordinance as adopted. In the Constitution of North Carolina, Article I, section 7, is the following: “No man or set of men are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services.” Section 31, is as follows: “Perpetuities and monopolies are contrary to the genius of a free state and ought not be allowed.” Section 29, is as follows: “A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.” The act, as written, has a tendency to create a monopoly and turn the business over to a privileged class without allowing personal surety or sureties, which was, until recent years, the kind of bond usually required and given. A statute applicable to Buncombe County, North Carolina, involving the same principle, was held void in Plott v. Ferguson, 202 N. C., 446. See Flemming v. Asheville, 203 N. C., 810; S. c., 205 N. C., 765; In the Plott case, supra, at page 451, it is said: “The passage of laws not of uniform operation, the granting of special privilege and the like, are ordinarily contrary to our constitutional limitations. Equal protection of the law and the protection of equal laws are fundamental.” It is contended by defendants that the ordinance contravenes: “The general law and the policy of the State, as declared by chapter 116, *648 Public Laws o£ 1931, entitled ‘An act to promote safe driving on tbe highways and to force the collection of judgments against irresponsible drivers of motor vehicles.’ ” It is well settled that an ordinance is invalid if it antagonizes the State law, supra, on the subject. S. v. Stallings, 189 N. C., 104. The synopsis of the State law, supra: “Failure of any automobile owner or operator to pay tort judgment within 30 days after final rendition authorizes suspension of driver’s license and registration certificates. . . . Certified transcript. . . . Period of suspension. . . . Ability to respond in damages. . . . Clerk of Superior Court to forward transcripts to Commissioner of Revenue.” Under the circumstances narrated in the act, provision is made for bond of a surety company, “or a bond with at least two individual sureties,” etc. This indicates the legislative intent as to giving individual sureties in certain cases, omitted from the ordinance in question. We are not now called upon to decide whether the ordinance in question antagonizes the State law and whether the State law covers the entire field. “The power conferred upon the municipal body is presumed to be insubordination to a public law regulating the same matter for the entire State unless a clear intent to the contrary is manifest.” S. v. Langston, 88 N. C., 692 (694); S. v. Freshwater, 183 N. C., 762. It is found in the special verdict: “That the defendants have complied with all the provisions of the laws of the State of North Carolina entitling them to operate taxi-cabs for hire in the city of Charlotte. That they have met all the requirements of the city of Charlotte entitling them to operate taxi-cabs for hire in the city of Charlotte other than complying with the ordinance of the city of Charlotte hereinbefore set forth.” We see no error in the judgment of the court below, the judgment is therefore Affirmed.