COMMONWEALTH v. SLOCUM

Springfield. Constitutional Law, Police power. Carrier, Of passengers. Motor Vehicle. Municipal Corporations, By-laws and ordinances. Statute, Amendment. License. Tax.

St. 1913, c. 429, in substance empowering the mayor and aldermen and the city council of Springfield to delegate to commissions, boards or heads of departments such powers as to the granting and issuing of licenses or permits as the mayor and aldermen or the city council are authorized to grant and issue by the statutes of the Commonwealth, is constitutional, and it is a proper exercise of the power so granted for the city council of Springfield by an ordinance approved by the mayor to delegate to the police commission of that city the power vested in the city by St. 1916, c. 293, upon its acceptance of that statute by the council, of licensing and regulating the transportation of passengers for hire by motor vehicles.

The authority thus conferred by St. 1913, c. 429, above described, includes authority to delegate powers conferred upon the city council by statutes after its passage as well as those already conferred at the time of its enactment.

If an ordinance of a city contains some provisions which are valid and some which are unconstitutional and void, and those which are invalid are so distinct and severable that, notwithstanding their invalidity, the remainder of the ordinance may stand as valid, and if the ordinance is amended to correct the invalid provisions, it constitutes after amendment a single statutory entity and is to be construed as a whole.

By a provision of an ordinance of the city council of Springfield, which had accepted St. 1916, c. 293, authorizing the police commission of the city to grant licenses for the transportation of passengers for hire by motor vehicles when the commission finds the applicants to be "suitable to conduct such business" and the vehicles, after inspection, to be "proper and safe for use in such business," an untrammelled volition to grant or deny applications is not conferred, and the police commission is under obligation to act reasonably with reference to a business recognized as lawful when pursued with adequate safeguards.

A further provision of the same ordinance, that each licensee shall furnish a bond in the sum of $1,000 for the benefit of persons who may be injured by the carelessness of the licensee or of his employee in operating the motor vehicle, is not unduly burdensome nor unreasonable.

Other provisions of the same ordinance, giving to the treasurer of the city power after a hearing to require further surety or sureties upon the bond to be given by the licensee as above described, were held not to be open to sound objection.

A requirement in the same ordinance of the payment of $5 for each such license is not as a matter of law a tax upon property rather than a fee.

It was held that the ordinance above described was not prohibitive of a legitimate business but was merely regulative within the limits of reason, that it was not void as against public policy, and that it was constitutional and valid.

INDICTMENT, returned on September 10, 1917, charging that the defendant operated a motor vehicle on August 29, 1917, in the city of Springfield for the transportation of passengers for hire as a business without being licensed so to do by the city or its police commission.

RUGG, C. J.

This indictment charges the defendant with having operated a motor vehicle as a business for the transportation of passengers for hire in Springfield without a license, contrary to statute and ordinance. The defendant does not contend that he did not violate the terms of an ordinance of the city of Springfield; but he urges that the ordinance does not conform to the enabling statute and is unconstitutional on several grounds.

General power is conferred by St. 1916, c. 293, upon such cities and towns as accept its provisions to license and regulate transportation of passengers for hire by motor vehicles, subject to the requirement of a bond from the licensee for the benefit of those injured through his negligence or that of his employees in the use of the motor vehicle. That statute has been accepted by the city council of Springfield. The authority conferred by it naturally would be exercised by the city council of Springfield. But it is provided by St. 1913, c. 429, that "The mayor and aldermen, and the city council of the city of Springfield, may delegate to commissions or commissioners, boards or heads of departments, the power respectively vested in them by the laws of the Commonwealth to grant and issue licenses and permits, and may respectively regulate the granting and issuing of licenses or permits which the mayor and aldermen or which the city council are authorized to grant and issue by the statutes of the Commonwealth. . . ."

The Legislature may delegate to general or local boards the right to enact ordinances and to require permits from an administrative officer or officers as a prerequisite to the exercise of different kinds of business affecting the public safety. Commonwealth v. Maletsky, 203 Mass. 241, 247. In this respect the statute is valid under the authority of many decisions. Brodbine v. Revere, 182 Mass. 598. Commonwealth v. Sisson, 189 Mass. 247. Welch v. Swasey, 193 Mass. 364, 375. Lyman v. Commissioners on Fisheries Game, 211 Mass. 10. Commonwealth v. Fox, 218 Mass. 498, 500. Commonwealth v. Feeney, 221 Mass. 323. Commonwealth v. Kingsbury, 199 Mass. 542, 546. Opinion of the Justices, 208 Mass. 625, 630. Commonwealth v. Hyde, ante, 6, 8. It is not open to the objections held fatal in Day v. Green, 4 Cush. 433, Coffin v. Nantucket, 5 Cush. 269, Newton v. Belger, 143 Mass. 598, and Commonwealth v. Staples, 191 Mass. 384, where delegation of such power without legislative sanction was held illegal.

Regulation of the operation of vehicles used for the conveyance of passengers was an early and is a well recognized subject for local by-law or ordinance. Commonwealth v. Stodder, 2 Cush. 562. Commonwealth v. Matthews, 122 Mass. 60. Commonwealth v. Page, 155 Mass. 227. The police power extends to the reasonable control of travel upon highways in the interest of the public. Commonwealth v. Morrison, 197 Mass. 199. That this power includes automobiles is not open to question. Commonwealth v. Boyd, 188 Mass. 79. Dudley v. Northampton Street Railway, 202 Mass. 443, 446. Hendrick v. Maryland, 235 U.S. 610, 622.

The authority vested by St. 1913, c. 429, in the city council of Springfield to delegate its authority to issue permits and licenses to executive or administrative boards or officers includes powers conferred in the future as well as those already conferred. A general law which contains no restrictive phrases operates upon all matters within its scope arising after its enactment. Hanscom v. Malden Melrose Gas Light Co. 220 Mass. 1, 3. This statute does not, either by grammatical construction or rational interpretation, narrow the authority to delegate to subjects already vested to the exclusion of subjects hereafter to be vested in the city council. The power to grant, when not made imperative, implies the discretion to refuse. The right to delegate the one includes the other.

An ordinance passed in 1916 by the city council, under the authority assumed to be conferred by the statute, was amended in some particulars in 1917. It is contended that the original enactment was void because in several particulars in contravention of rights secured by the Constitution, and that hence it cannot be rendered valid by amendment. See Schwartz v. Oshkosh, 55 Wis. 490, and Cowley v. Rushville, 60 Ind. 327. Without pausing to consider the soundness, scope and limitations of that principle, it is not applicable to the case at bar. There were numerous provisions of the original ordinance, unchanged by any amendment, which are not and could not with any show of reason be assailed as unconstitutional. Even if it be assumed, but without so deciding, that one or more sections of the original ordinance may have been void, it is plain, without extended analysis of its provisions, that such sections were so distinct and severable in their nature from other sections that the remainder of the ordinance might have stood as valid. Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 81. The ordinance of 1916, as amended in 1917, constitutes a single statutory entity and is to be construed as a whole. Merrill v. Paige, 229 Mass. 511, 513.

The ordinance regulates in considerable detail the method of applying for licenses and the information to be set forth in the application. It prescribes the fee to be paid, the amount of the bond required, the qualification of the sureties, the persons entitled to the benefit of the bond, the signs to be displayed on the licensed motor vehicle, specifications as to operation with reference to other travel on the streets, places where stops may be made, approval of routes, rate of fare to be charged and number of passengers to be carried, with prohibitions as to certain means of solicitation of passengers and other subsidiary provisions. This summary of its terms demonstrates that the ordinance is legislative in its nature. It lays down general rules for the guidance of the licensing board and officer, and of the licensees.

When its provisions are examined more critically, they disclose no omissions or requirements invalid in their nature.

The police commission is authorized to grant licenses when the applicants are found to be "suitable to conduct such business" and the vehicles, after inspection, are found to be "proper and safe for use in such business." An untrammelled volition to grant or deny applications is not thus conferred, but rather an obligation is imposed to act reasonably with reference to a business recognized as lawful when pursued with adequate safeguards. The reasoning of such decisions as Commonwealth v. Maletsky, 203 Mass. 241, 246, Goldstein v. Conner, 212 Mass. 57, and Kilgour v. Gratto, 224 Mass. 78, where ordinances vesting an unrestrained discretion in a subordinate board or officer were held void, has no applicability to the ordinance here attacked.

The requirements of the ordinance are not unreasonable. It cannot rightly be said to be unduly burdensome to exact from each licensee a bond in the penal sum of $1,000 for the benefit of those who may be injured by the carelessness of the licensee or his employees in operating the vehicle. It is matter of common knowledge that damages far in excess of that amount not infrequently are awarded for personal injuries sustained by those who are riding in or injured by contact with automobiles. The power vested in the city treasurer to require further surety or sureties upon the bond, after determining that the existing surety or sureties are insufficient, is not open to sound objection. The principles by which he must be guided are laid down with sufficient definiteness in the ordinance and he can act only after a hearing. His conduct cannot under the ordinance be capricious, but must depend upon a finding of the existence of specified facts.

The requirement of a payment of $5 for each license issued cannot not be pronounced as matter of law a tax on property rather than a fee. Its amount is not excessive in view of the normal expenses incidental to the system of registration and inspection established by the ordinance.

There is no ground for the contention that the ordinance as thus construed is void as against public policy. Its terms are not prohibitive of a legitimate business, but are merely regulative within the limits of reason.

It is not necessary to discuss the ordinance in further detail. All the objections presented in the brief for the defendant have been considered, and no reason is found for disturbing the verdict, which is to stand.

So ordered.