Vanderwerker v. City of Superior

Eschweiler, J. The ordinance which it is admitted the defendants purposed to enforce would materially impair the rights of plaintiffs to operate as a common carrier upon certain of the streets of the city of Superior and would require the furnishing of a surety bond in double the amount as well as for an additional liability over that required under the state law. The designation by the railroad commission of the streets and public highways oyer which it deems that such service is reasonably required for the accommodation of the public is beyond question a substantial element in its consent and permission and in the rights and liabilities thereby established. [643] By the adoption of the so-called Jitney Law (ch. 546, Laws of 1915, now secs. 1797—62 to .1797 — 68, Stats.), the legislature, through its administrative body, the railroad commission, assumed jurisdiction over the subject matter of such service as that which is concededly being afforded by the plaintiffs, that is, street transportation by motor vehicles similar to that afforded by street railways. Monroe v. Railroad Comm. 170 Wis. 180, 174 N. W. 450, 9 A. L. R. 1007, note at p. 1011. All the questions as to what shall be the general routes and the territory, the character of the service, and the hours of operation, all regardless of any other service being then furnished, are by such law vested in the determination of the railroad commission, subject to judicial review in the same manner as are its other orders, and such determinations are therefore beyond municipal interference or restriction. The situation presented is one where if the plaintiffs, relying upon the certificate bf the railroad commission, should undertake to operate in accordance with the same upon the streets therein designated, there would be an immediate conflict with the conditions of the ordinance. On the other hand, they could not operate at all in that capacity on the streets in Superior without the certificate of the railroad commission, ordinance or no ordinance, and yet if they be required to comply with the conditions of the ordinance there is a substantial destruction as to plaintiffs of rights permitted to them by the state. To uphold the ordinance is to substantially nullify the certificate of the railroad commission. This cannot and ought not be done. The legislative control, either directly or through its designated administrative body, is superior to any conflicting action of the legislative body of the municipality. Duluth St. R. Co. v. Railroad Comm. 161 Wis. 245, 253, 255, 152 N. W. 887; Baraboo v. Dwyer, 166 Wis. 372, 377, 165 N. W. 297; Hickman v. Wellauer, 169 Wis. 18, 24, 171 N. W. 635; [644] Holmes Electric P. Co. v. Williams, 228 N. Y. 407, 420, 127 N. E. 315; Ex parte Daniels, 183 Cal. 636, 192 Pac. 442, 21 A. L. R. 1172, with note at p. 1186; Public Utility Comm. v. Garviloch, 54 Utah, 406, 181 Pac. 272. The rule is expressly recognized in the cases cited on behalf of defendants. Oshkosh v. Campbell, 151 Wis. 567, 569, 139 N. W. 316; Brittingham & Hixon L. Co. v. Sparta, 157 Wis. 345, 349, 147 N. W. 635. In many states the power to regulate such traffic is directly given to the municipalities in whole or in part, rather than exercised by the legislature or a state administrative body, as appears from the following among many other cases that might be cited: Melconian v. Grand Rapids, 218 Mich. 397, 188 N. W. 521; Dickey v. Davis, 76 W. Va. 576, 85 S. E. 781, Pub. Util. Rep. 1915E, 93, L. R. A. 1915F, 840; Decker v. Wichita, 109 Kan. 796, 202 Pac. 89; Jitney Bus Asso. v. Wilkes-Barre, 256 Pa. St. 462, 100 Atl. 954; San Antonio v. Fetzer (Tex.) 241 S. W. 1034. Clearly and because of that distinction, such cases, many of which were called to our attention on defendants’ behalf, are not in point here. The provisions of sec. 1797—68, Stats., to’ the effect that the city, village, or town within or through which any such motor vehicle shall be operated may require that local consent for the operation thereof be procured, and that as a condition of such consent may require reasonable compensation for the repair and maintenance of pavements and bridges, compensation for traffic regulation, and any other expense occasioned by the operation of such vehicle, cannot be construed to warrant the sustaining of this ordinance. This local consent can apparently be conditioned only upon reasonable provision to secure the municipality on the question of consequent expense merely. Whether such local consent can be arbitrarily withheld by the municipality is not before us and we express no opinion upon such a matter. [645] This sec. 1797 — 68 was referred to in Monroe v. Railroad Comm. 170 Wis. 180, 174 N. W. 450, and at page 185 it was said:-“The several municipalities in which such service is proposed may give or withhold local consent for their operation, and as a condition,” etc. The writer assumes responsibility for the unnecessary insertion of the italicised words in the quotation just given. Such expression must not be construed as a then determination by this court that such consent could, at the mere will or wish of the municipality, be withheld altogether. Such question was not before this court then and was not then determined. The questions here determined against the contentions of defendants go to the whole substance of the ordinance, and for that reason the ordinance must fall. The entire situation being presented by the complaint, answer, and affidavits, nothing would be gained by remanding the record for further proceedings, and therefore the plaintiffs are entitled.to the injunction for which they brought this action. This disposition of the case makes it unnecessary for us to discuss or determine other questions presented and argued, namely, how fan the license obtained by plaintiffs under the old ordinance, purporting on its face to be valid for a year, is binding upon the city during such specified time; and whether the classification attempted to be made by the new ordinance is valid, whereby busses furnishing the same kind of service as plaintiffs propose to furnish but extending their service across the state line into Duluth, may be granted the privilege to run on a certain portion of a designated street in the city of Superior from which, by the same ordinance, the plaintiffs were to be excluded. By the Court. — Order reversed, with directions to enter judgment in favor of the plaintiffs,