Jitney Bus Ass'n of Wilkes-Barre v. City of Wilkes-Barre

Opinion by Mr. Justice Potter, The Act of Assembly of June 1, 1915, P. L. 685, gave to cities in Pennsylvania the right to regulate the transportation of passengers and property by motor vehicles not operated on tracks. n Pursuant to this statute the City of Wilkes-Barre passed an ordinance regulating the running of jitneys, which ordinance, after defining a jitney and declaring the operators thereof to be common carriers, provided for the taking out of a permit and payment of a license fee, and required the owner to furnish and keep in full force and effect at all times, “either a bond.'.....with a responsible surety company or association authorized to do business under the laws of the State of Pennsylvania, in the sum of two thousand five hundred ($2,500) dollars conditioned......to pay all loss or damages that may result to any person from the negligent or reckless operation of, or the defective construction of said jitney automobile, or which may arise from any violation of any provisions of this ordinance or the laws of the State of Pennsylvania.......Such bond shall......inure to the benefit of any and all persons suffering loss or damage either to person or property as herein provided; and suit may be brought in any court of competent jurisdiction upon said bond by any person or persons or corporation suffering any loss or damage as herein provided.......Said bond shall be a continuing liability, notwithstanding any recovery thereon, and, if at any time, in the judgment of the city council, said [468] bond is not sufficient for any cause, tbe city council may require the party......to' replace said bond with another.” An alternative requirement is that the owner furnish a policy of insurance against loss by reason of damage that may result to any person through the operation of the jitney. It appears from the findings of the chancellor that several surety companies refused to insure or bond jitneys under this ordinance. Others would do so, providing that cash or collateral to the amount thereof was furnished by the insured; while the representative of one company testified that his company wrote jitney insurance. The court below held that the eighteenth section of the ordinance, which required the operators of jitneys to carry free, policemen and firemen under certain conditions, was unreasonable, but it sustained the remaining provisions. Plaintiffs have appealed, and their counsel contend that other requirements of the ordinance are unreasonable, particularly those with respect to the furnishing of a bond. As to the right of the municipality to regulate, in the interest of public safety, the running of jitneys, as well as all other traffic upon the public streets, we have no doubt. The only question in such case is whether the requirements of an ordinance for that purpose are reasonable, and not unduly burdensome. Regulation is not to be carried to the extent of prohibition. A jitney is an automobile, and by universal custom automobiles are permitted to use the streets of cities, as are other vehicles. The fact that the owners of jitneys derive a profit from their operation, makes no difference in their legal status. Much of the traffic upon the city streets is a matter of profit, directly or indirectly to those engaged therein. The public highways are for the use of those engaged in commerce or industrial pursuits, no less than [469] for pleasure. cars. But, if, from the usual manner of operating certain vehicles, the public safety is endangered, the right and duty of special regulation is clear. Such regulation may very properly include, as in this case, the requirement of a bond to secure the payment of such damages as may be recovered for loss of life, or injury to person or property occasioned by the negligent operation of the jitney, provided the bond be not made prohibitive in its nature, either by being made too large in amount, or by being unnecessarily restricted as to the sureties who may sign it. In the present case the bond required is restricted to one furnished by a surety company, while the evidence shows that it is difficult to procure such a bond from a surety company. Under the circumstances, we think the exclusion of personal sureties is not justifiable or reasonable. The municipality is entitled to require good and sufficient security, but beyond that it should not go. The terms of the ordinance in this respect would forbid the deposit of cash, or a certified check, or municipal bonds, as security by the applicant for a permit, or the acceptance as sureties upon his bond of individual freeholders of unquestioned financial responsibility. We know of no other instance in which, where security is required by law to be given, an attempt has been made to confine such security to surety companies, to the exclusion of solvent and responsible personal sureties. We are not quite clear as to what is meant by the requirement that “the bond shall be a continuing liability, notwithstanding any recovery thereon.” If this provision means that while the bond purports to be in the penal sum of twenty-five hundred dollars, yet after recovery to that amount, the obligors shall continue to be liable for other and additional amounts without limit, then the requirement is clearly unreasonable. No surety could properly be asked to undertake such an indefinite and unlimited responsibility. [470] Aside from the particulars to which reference has been made, we see no merit in the contention of appellants. The court below intimated in its opinion and decree that the eighteenth section of the ordinance was not to be enforced. With the further modification that the requirement of the ordinance restricting the surety upon the bonds to surety companies, shall be eliminated, and also that the requirement that the “bond shall be a continuing liability, notwithstanding recovery thereon” shall be stricken from the terms of the ordinance, the decree of the court below is affirmed.