Amicus Curiae Brief — Packard v. Banton

SUBJECT INDEX.

Preliminary Statement......... awh konees 1

ARGUMENT:

I—The equal protection of the law to those

within the jurisdiction of the State of New

York is denied by the statute in question,

which provides for an unjust and arbi-

ee cc nctd eka wd vive ees 2

II—The Legislature, in exacting from those

affected by the statute security for the pay-

ment of judgments, has denied to them

equal protection of the laws............ 8

I1I—The statute in respect to the bond re-

quired to be furnished by operators of the

motor vehicles in question is unreason-

able and unconstitutional..... eettbios &

io 2)

ALPHABETICAL TABLE OF CASES.

PAGE

A. T.& S. F. R. R. v. Matthews, 174 U. S. 96;

43 L. ed. 909; 19 Supr. Ct. Rep. 609...... 15

A. T. & S. F. R. R. v. Vosberg, 238 U. 8. 56;

59 L. ed. 1199; 35 Supr. Ct. Rep. 675..... 16

Chicago & Northwestern Ry. Co. v. Nye

Schneider Fowler Co., 67 L. ed. 46....... 15

Gulf, Colorado & Santa Fe Ry. v. Ellis, 165

Ri A: SPL R aa waceenat sec ccn ene BOs WKS 6,9

Jitney Bus Co. of Wilkes-Barre v. The City of

Wilkes-Barre, 256 Pa. 462............... 19

Lake Shore & Michigan Southern Ry. Co. v.

a ee | rrr ere 7

Louisville & Nashville R. R. Co. v. Bosworth,

230 Fed. 207; modified 87 Supr. Ct. 683... 7

Magoun y. Illinois Trust & Savings Bank, 170

Ae te | MAAS TET TE CCT TTT ET TET 6

People v. Briggs, 193 N. Y. 457...........08- 20

People v. Hastings, 807 Ill. 92.......... cccos OO

People v. Martin, 203 App. Div. 423......... 17

People v. Rosenheimer, 209 N. Y. 115; 35 Ann.

Cases 160; 46 L. R. A. (N. 8.) 977....... 3

Seaboard Air Line Ry. Co. v. Seegers, 207 U.S.

73; 52 L. ed. 108; 28 Supr. Ct. Rep. 28... 16

Soon Hing v. Crowley, 1138 U.S. 708.......... 6

State ex rel. Stephenson vy. Dillon, 69 Southern

Rep. 558 and 560 (Florida)............. 18

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IN THD

Supreme Court of the United States

OcTOBER TERM, 1923.

WILLIAM HENRY PACKARD,

Appellant,

against

JoaB H. BANTON, District Attor-

ney in and for the County of

New York, and CHARLES D.

NEWTON, Attorney General of

the State of New York,

Appellees.

BRIEF OF THE ALLIED TAXI

OWNERS ASSOCIATION

(Amicus Curiae).

This brief is filed in behalf of the Allied Taxi

Owners Association, an organization representing

the owners of in excess of 4,000 motor vehicles of

the type within the provisions of the act.

POINT I.

The equal protection of the law to

those within the jurisdiction of the

State of New York is denied by the stat-

ute in question.

The Legislature in the enactment of any measure

under the guise of an exercise of the police power,

cannot disregard the constitutional provision en-

joining the equal protection of the laws-to all per-

sons within its jurisdiction. In exercising such

power by the passage of an act such as that now

in review, having for its ostensible purpose the

safety of pedestrians upon the public highways, the

Legislature is bound to impose its burdens equally

upon all those individuals constituting the class

from which the danger sought to be remedied can

reasonably be apprehended. It cannot arbitrarily,

by legislative fiat or otherwise, impose such burdens

merely upon certain individuals composing such

class, leaving others, from whom the danger sought

to be guarded against may equally be apprehended,

untrammelled in the performance of those acts

which the Legislature deems to be a source of

danger.

It cannot certainly be denied in the cireum-

stances now before the Court, that those individ-

uals, exempted from the operation of this onerous

penal statute, are not equally responsible for the

existence of the hazard in question. Indeed, it may

fairly be argued by a reference to the schedule of

casualties included in the record herein, that the

very individuals who are exclusively subjected to

the burdens of the act in question, have occasioned

Lanai

a much smaller proportion of casualties than those

individuals who are exempt.

The learned Attorney General in the Court below

contended at some length, and submitted author-

ity, that the control of the highways by provisions

respect ig the operation of motor vehicles was a

power which the Legislature enjoyed. The appel-

lant does not question the right or authority on

the part of the State Legislature to legislate upon

this subject. This Court has too frequently enunci-

ated the principles involved to warrant any denial

or qualification, Nevertheless, the exercise of such

power by the Legislature must itself be observed

with relation to certain principles of equality—

principles which either are inherently involved in

the exercise of the power itself, or involved in the

circumscribing provisions of the Constitution.

The respondent in the Court below quoted at

some length from the opinion of Chief Judge CuL-

LEN, in People v. Rosenheimer, 209 N. Y. 115; 35

Ann. Cases 160; 46 L. R. A. (N. 8.) 977, upholding

the exercise of the power by the Legislature to

enact a measure requiring operators of motor vehi-

cles to report to the authorities all casualties oe-

curring in the operation of their vehicles. While

it might be argued as a matter of principle, that,

as stated by the Court, “The Legislature might pro-

hibit altogether the use of motor vehicles upon the

highways or streets of the State,” it surely cannot

be contended, paraphrasing the language of the

Court, that the Legislature might by any arbitrary

classification, prohibit the use of certain motor

vehicles upon the public highways, permitting

others in like case to operate unrestrained. If that

act had provided that only motor vehicles operated

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4

upon the public highways for hire in the trans-

portation ef passengers shall be required to report

to the police officials any casualty in which they

might have been involved, and eliminated from this

penal provision the large number of motor vehicles

of other classes, there is no doubt but that the

learned Court of Appeals would have declared the

act grossly discriminatory, and as denying to those

within its jurisdiction the equal protection of the

laws. An examination of the various statutes en-

acted by the Legislature of the State of New York,

regulating the conduct of certain enterprises, i. e.,

pawnbrokers, auctioneers, insurance agents, liquor

vendors, and others, to which the learned Attorney

General referred in the Court below, will indicate

that these statutes are general in their operation

in so far as they were intended to and actually

covered all of the individuals engaged in those occu-

pations. Those statutes requiring individuals en-

gaged in certain enterprises vested with a public

interest, to furnish a bond or other security, before

engaging in the pursuit of their vocations, are also

general in their operation, and actually relate to

all of the individuals or corporations engaged in

such enterprise.

There is nothing in the record herein indicating

that the hazard sought to be guarded against by

the exercise of the power in question is one specifi-

cally attributable to motor vehicles in first-class

cities, engaged in the carrying or transportation

of passengers for hire, nor can such special appli-

cation be in any way justified by an examination

of the statute itself. We are here concerned with

the interpretation and effect of a statute penal in

its nature and one to be strictly construed. Were

5

this appellant to become involved in a common dis-

aster upon the public highways of the City of New

York with a vehicle of the class not included within

the statute, resulting in damage to person or prop-

erty, the appellant, under pain of fine or imprison-

ment, would be required to secure to the injured

person his damages through the medium of the bond

required, whereas the operator or owner of the

motor vehicle equally involved in the occurrence

of the casualty, would escape such burdens, and

even though his liability may have been equal to

that of the appellant, would in no sense be guilty

of any crime were the injured one unable to collect

any judgment against him.

In short, we maintain that the Legislature, in

controlling the highways, should not be permitted

to distinguish between persons of the same class

when the purposes for which it exercises its power

are equally applicable to all. The conduct of the

business of operating vehicles for hire is a legiti-

mate occupation, and the danger of casualty to

pedestrians on the public highways is not an inci-

dent, to the operation of such business alone, but

is rather an incident to the operation of all vehicles

on the public highways, whether or not engaged

in the business in question.

It cannot be urged, as intimated by the respond-

ent, in the Court below, that the act is merely a

regulation by the State of a business vested with

a public interest. The purpose of the act does not

affect the conduct of the plaintiff’s business as such,

but rather affects the users of the public highways

in general without regard to the business upon

which they may be engaged. The principle upon

which the Legislature may discriminate in the pas-

6

sage of acts similar to those now before this Court,

is set forth in numerous decisions.

In the case of Soon Hing v. Crowley, 113 U. S.,

at pp. 708 and 709, the Court said:

“The specific regulations for one kind of

business which may be necessary for the pro-

tection of the public can never be the just

ground of complaint, because like restric-

tions are not imposed upon other business

of a different kind. The discriminations

which are open to objection are those where

persons engaged in the same business are

subjected to different restrictions, or are

held entitled to different privileges under

the same conditions.”

In that case the business in question was deemed

to be attended by a peculiar hazard to which other

businesses were not incident.

In the case of Magoun v. Illinois Trust & Savings

Bank, 170 U. S., at p. 293, the Court said:

“The clause of the Fourteenth Amend-

ment especially invoked is that which pro-

hibits a state denying to any citizen the

equal protection of the laws. What satisfies

this equality has not been and probably

never can be precisely defined. Generally it

has been said that it ‘only requires the same

means and methods to be applied impartially

to all the constituents of a class so that the

law shall operate equally and uniformly

upon all persons in similar circumstances.’ ”

Again, Mr. Justice BREWER, in Gulf, Colorado &

Santa Fe Ry. v. Ellis, 165 U. S. 150, 165, after a

careful consideration of many cases, said:

7

“Tt is apparent that the mere fact of

classification is not sufficient to relieve a

statute from the reach of the equality clause

of the Fourteenth Amendment, and that in

all cases it must appear not only that a

classification has been made, but also that

it is one based upon some reasonable ground,

some difference which bears a just and

proper relation to the attempted classifica- t

tion, and is not a mere arbitrary selection.” e

As was said in the case of Lake Shore & Michigan

Southern Ry. Co. v. Smith, 173 U. 8S. 684, the police é

power must be exercised in subordination to the é

provisions of the Federal Constitution. If in the :

assumed exercise of its police power, the Legisla-

ture of a State directly and plainly violates a pro-

vision of the Constitution of the United States,

such legislation would be void. In the last cited

case, the defendant in error contended that the act

regulating railroads then under review was a mere

regulation of the public business, but the Court

held that the regulation provided by the Legisla-

ture could not be so effected as to convenience a

portion of the persons who might use the railroad,

while refusing such convenience to others under

some other circumstances.

We quote from the opinion in Louisville & Nash-

ville R. R. Co. v. Bosworth, 230 Fed., at p. 207,

modified 87 Supr. Ct. 683:

“And what is it, then, to deny the equal

protection of those laws? It is to refuse to

grant or to withhold equal treatment in con-

ferring or securing rights or in imposing or

exacting performance of duties. It is to

treat ditferently or to discriminate in so do-

ing. And it may be said to include an inten-

SRI NSO

8

tion, in doing what is done, to treat differ-

ently or to discriminate. But, if such is the

natural consequence of what is done, it is

to be taken that there is an intention to

treat differently or to discriminate. One is

always held to intend that which is the natu-

ral consequence of what he does. The es-

sence of the Fourteenth Amendment, there-

fore, is to forbid discrimination and to re

quire equal treatment on the part of each

department of the state in the exercise of its

particular function, and its effect is to em-

power and to make it incumbent on the

Courts, State and Federal, to prevent dis-

crimination and to secure equal treatment.”

POINT II.

The Legislature, in exacting from

those affected by the statute security

for the payment of judgments, has de-

nied to them equal protection of the

laws.

We respectfully enlist the consideration of the

Court to another phase of this problem, and one

which lends itself to supporting the contention of

the appellant. The act under review contains no

provisions for the regulation of the motor vehicles

in question in the sense of imposing requirements

for their safe operation, but is solely directed to

insuring to plaintiffs in suits against the indi-

viduals operating such motor vehicles the collec-

tion of any judgment which they may obtain by

imposing upon the defendants in such actions the

obligation to furnish sufficient sureties. It is in

short a penalty imposed upon defendants in cer-

» Sega

ee een ae

9

tain classes of litigation to insure the payment of

their debts.

This proposition was decided in the case of Gulf,

C.& 8. F. R. R. Co. v. Ellis, 165 U. S. 150; 41 L. ed.

666; 17 Supr. Ct. Reporter 255. In that case, the

Legislature of the State of Texas had enacted a

law providing that if certain claims presented to

the railroad company for adjustment and not ex-

ceeding $50 were not compromised, and the claim-

ant recover upon such claim, attorneys’ fees not

in excess of $10 be added to the judgment The

railroad company, upon appeal to this Court,

raised the point that the statute, with respect to

the assessment of attorneys’ fees, operated to de-

prive it of property without due process of law,

and denied to it the equal protection of the laws.

The exaction in such cases was made only against

the railroad companies and in certain cases, in-

cluding, among others, claims for damage to prop-

erty.

$

f

£

Mr. Justice Brewer, in writing the opinion of

the Court, said:

“Tt is simply a statute imposing a penalty

upon a railroad corporation for failure to

pay certain debts. No individuals are thus

punished, and no other corporation. The

act singles out a certain class of debtors,

and punishes them, when for like delinquen-

cies, it punishes no others. They are not

treated as other debtors, or equally with

other debtors. They cannot appeal to the

Courts as other litigants in like conditions

and with like protection.”

The Court gave consideration to numerous deci-

sions of the State Courts, holding similar acts un-

constitutional.

ETO NAS ro » ERE OR te EE RY eR IS PSA E APA EET OOP ANE, aed

Ne NSA de ot hn

10

We quote further from the opinion of Mr. Jus-

tice BREWER:

“It is of course proper that every debtor

should pay his debts, and there might be no

impropriety in giving to every successful

suitor attorneys’ fees. Such a_ provision

would bear a reasonable relation to the de-

linquency of the debtor, and would certain-

ly create no inequality of right or protec-

tion. But before such a distinction can be

made between debtors, and one be punished

for failure to pay debts while another is per-

mitted to become in like manner delinquent

without any punishment, there must be

some difference in the obligation to pay,

some reason why the duty of payment is

more important in one instance than in the

other.

If it be said that this penalty is cast only

upon corporations, that to them special

privileges are granted, and therefore upon

them special burdens may be imposed, it is

a sufficient answer to say that the penalty

is not imposed upon all corporations. The

burden does not meet with the privilege.

Only the railroads of all corporations are

selected to bear this penalty. The rule of

equality is ignored. * * *

But if the classification is not based upon

the idea of a special privilege, can it be sus-

tained upon the basis of the business in

which the corporations to be punished are

engaged? That such corporations may be

classified for some purposes is unques-

tioned. The business in which they are en-

gaged is of a peculiarly dangerous nature,

and the Legislature, in the exercise of its

police power, may justly require many

things to be done by them in order to secure

life and property. * * *

But a mere statute to compel the payment

of an indebtedness does not come within the

A We ERR WE CTI. NST Nee tae RT eee ene ere ng

11

scope of police regulations. The hazardous

business of railroading carries with it no

special necessity for the prompt payment of

debts. That is a duty resting upon all

debtors, and while in some cases there may

be peculiar obligations which may be en-

forced by penalties, yet nothing of that

kind springs from the mere work of railroad

transportation.”

Certain principles relative to the applicability of

the Fourteenth Amendment and applied by Mr.

Justice BREWER in the Ellis case are equally ap-

plicable in the case at bar. The Texas statute

imposed the burden upon one litigant, the defend-

ant railroad company, in a certain class of ac- 5

tions. The Legislature of the State of New York,

in the statute now under consideration, has placed :

the burden upon one class of litigants in certain

actions. Although the burden in the Texas case E

is the payment of an additional sum by way of

penalty, while the burden imposed by the Legis-

lature of the State of New York is in form a penal

provision requiring the filing of the bond in ques-

tion, the principles involved are the same. In

both cases burdens are imposed upon defendants

which are not only not imposed upon the plain-

ESET POT OO TY EV AO IONE (EPL vEe SE

tiffs in the litigations to which the statutes are

confined, but similar burdens are not placed upon

all defendants under the same circumstances. In .

the Texas case the statute imposed a penalty upon z

the defendant for failure to pay certain debts. In

the instant case the statute imposes a penal pro-

vision by way of fine or imprisonment for failure

to afford surety by way of bond to certain plain-

tiffs in certain causes of action conditioned upon

the payment of certain debts. We will here utilize

Re RELL LL

SAREE oe! Tat

12

the language of Mr Justice Brewer to indicate

the applicability of the principles set forth in the

Ellis case to the case at bar.

No owners or operators of other motor vehicles

(i. e., vehicles not engaged in the carrying of pas-

sengers for hire) are required to perform the oner-

ous conditions of the act. Others, although in

similar circumstances, and although sued for pre-

cisely the same cause of action, to wit, damage to

person or property, are not required to give bond.

The act singles out a certain class of debtors, to

wit, owners and operators of those motor vehicles

which are engaged in the transportation of pas-

sengers for hire and against whom judgment may

be obtained for personal or property damage and

punishes them for failure to insure to the respec-

tive plaintiffs the payment of such judgments,

when for like delinquencies it punishes no others.

All defendants, owners or operators of all motor

vehicles operating for any purpose upon the streets

of the State are not treated alike nor equally.

The defendants included within the contemplation

of the act cannot appeal to the Courts as other

litigants under like conditions and for like protec-

tion. The statute requires a bond to be furnished

to insure the payment of any judgment which may

be procured arising out of damage to the plain-

tiffs person or property. It is apparent that such

circumstances would arise in the event of a colli-

sion between two motor vehicles. Litigation re-

sults in which the owner or operator of a motor

vehicle not included within the provisions of the

act demands judgment against the defendant opera-

tor of a motor vehicle for the transportation of

passengers for hire. The latter interposes a coun-

13

terclaim demanding an affirmative judgment

against the plaintiff for precisely the same dam-

age sought to be recovered by the plaintiff arising

out of the same circumstances and the result of

the same hazard. If such litigation terminate ad-

versely to the defendant, the plaintiff is assured of

the payment of his judgment by the provisions of

the act, an assurance which the defendant has been

compelled to give at some expense and under pen-

alty of punishment for misdemeanor. If the liti-

gation terminates in favor of the defendant award-

ing to him damages upon his counterclaim upon

precisely the same cause of action as alleged by

the plaintiff, he has no such assurance for the col-

lection of his judgment. It is not sufficient answer

to this contention to say that owners and operators

of motor vehicles for the transportation of pas-

sengers for hire only bear the burdens of the act

when adjudged to be in the wrong, to wit, if the

finding of fact is made that they have operated

their vehicles negligently. The conclusion is in-

evitable that they both do not enter the Courts

upon equal terms. Those operating motor vehicles

for the transportation of passengers for hire must

assure to their opponents the collection of the lat-

ter’s judgments. They have no such assurance of

the collection of judgments they may obtain

against the others under similar circumstances. It

follows, therefore, that in suits to which they are

parties defendant, they are discriminated against

and are not treated as other defendants under

similar circumstances and in similar actions. They

do not stand equally before the law. They do not

receive its equal protection.

As was said by Mr. Justice Brewer, “It is of

course proper that every debtor should pay his

- mmsyncepeine “

Ps ma 9

Bibs ycrenss ws oe

14

debts,” and further following the language of the

Court, there might be no impropriety in giving to

every successful suitor in actions for personal or

property damage against all owners and operators

of motor vehicles assurance of the collections of their

judgment by the requirement upon all defendants

in such cases to file bonds. Before a distinction

can be made between debtors constituting the same

class, i. e., Owners and operators of all motor

vehicles, and some of them punished for failure to

furnish a surety for the payment of such debts,

while others are permitted in like manner to shake

the burdens of the act, there must be some dif-

ference in the obligation to pay, some reason why

the duty to pay is more important in one instance

than in another. It cannot be justly said that

the obligation by the owner and operator of a

motor vehicle for the transportation of passen-

gers for hire to pay the debt, evidenced by judg-

ment against him, is a more important obligation

than that of the owner or operator of another mo-

tor vehicle also evidenced by a judgment for the

same causes. No reasonable exercise of one’s im-

aginative faculties can create any distinction be-

tween such debts. It cannot be said that the pen-

alty imposed in the act in question is cast only

upon a certain class to whom special privileges

are granted and therefore upon them special bur-

dens may be imposed. The special burdens are

not imposed upon all to whom such special privi-

leges are granted. The special privilege in ques-

tion is the use of the public highways for the opera-

tion of motor vehicles. The special privilege is

not that of operating a business of transporting

passengers for hire. The obligation imposed by

6. - ’ Botads Ne NT 4 RON Ten os Abed DT AR

shat z e Jo

15

the act has absolutely no relation whatsoever to

the mere conduct of the business. In short “The

burden does not meet with the privilege.”

The statute to compel the payment of a judg-

ment in this case does not come solely within the

scope of police regulations. The business of operat-

ing motor vehicles for the transportation of pas-

sengers, which may be construed as a hazardous

one, carries with it no special necessity for insur-

ing to judgment creditors the payment of their

debts. That is an obligation resting upon all judg-

ment debtors against whom judgments may be ob-

tained for damage to personal property arising out

of the negligent operation of any class of motor

vehicles upon the public highways. Yet such a debt

does not spring from the mere conduct of the busi-

hess of transporting passengers in motor vehicles

for hire.

The opinion of Mr. Justice Brewer in the Ellis

case has been interpreted in other circumstances,

and in cases where different conclusions based upon

different facts were found. Such subsequent deci-

sions are collated in the opinion of Mr. Chief Jus-

tice Tarr in the case of Chicago & Northwestern

Ry. Co. v. Nye Schneider Fowler Co., decided No-

vember 13, 1922, 67 L. ed. 46. Reference was made

toA.T. 4&8. F. R. R. y. Matthews, 174 U. 8. 96:

43 L. ed. 909; 19 Supr. Ct. Reporter 609, where

a statute imposed the payment of the reasonable

attorneys’ fees upon a defendant railroad company

when unsuccessful in an action for damages for

fire caused by the negligent operation of the rail-

road. The Court in upholding the validity of the

Statute indicated that the act in question was not

for the purpose of enforcing the payment of a

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LORS TPIT Wot

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16

debt, but to secure the utmost care on the part of

the railroad in the operation of its trains, to pre-

vent the escape of fire from moving locomotives.

It was shown that the decision in the Ellis case

followed the decision of the State Courts with re

spect to the interpretation of the statute then un-

der review and its purpose. Incidentally, the Court

said, page 100:

“This Court is not concluded by the opin-

ion of the Supreme Court of the State. It

forms its own independent judgment as to

the scope and purposes of the statute,

while, of course, leaning to the interpreta-

tion which has been placed upon it by the

highest Court of the State” (four Justices

dissenting, basing their dissent upon the de-

cision in the Ellis case).

In Seaboard Air Line Ry. Co. v. Seegers, 207 U.

S. 73; 52 L. ed. 108; 28 Supr. Ct. Reporter 28,

cited in the opinion of Mr. Chief Justice Tart, the

Court again followed the interpretation of the

State Court showing that the statute in question

was not to penalize a carrier for refusing to pay

a claim within a reasonable time, but to bring about

a prompt settlement of proper claims, a penalty

operating as a deterrent of the carrier in refusing

to settle just claims.

In the case of Atchison, Topeka & Santa Fe R. R.

v. Vosberg, 238 U. S. 56; 59 L. ed. 1199; 35 Supr.

Ct. Reporter 675, the Court held unconstitutional

a statute of the State of Kansas providing for the

payment of mutual demurrage charges and impos-

ing upon an unsuccessful railroad litigant, in ad-

dition to such demurrage charges, a counsel fee,

a charge from which the plaintiff shipper might

be exempt. This was held to be an attempted ex-

aaa — “ See AS IE it Bila, aE aca ik ah ena ha

17

ercise of the police power by the Legislature, and

although the same result was arrived at as in the

Ellis case, was held to be distinguishable from the

circumstances in that case, because the instant

statute was not a penalty imposed for the failure to

pay a debt. There the Court held that, while at-

tempting a classification by the supposed relation

to the object of securing adequate car service, the

statute really related to the object of securing ade-

quate prosecution in court of actions respecting

car service.

A careful examination of the subsequent cita-

tions of the Ellis case indicates that certain prin-

ciples were enunciated by the Court which may

here be considered.

Different conclusions arrived at by this Court

upon what may appear at first glance to be similar

Statutes, are based primarily upon the interpreta-

tion of the purpose and effect by the respective

State Supreme Courts of the acts under considera-

tion. This Court has stated that it will follow the

interpretation of the State Courts respecting the

scope and purpose of the statute.

Upon that premise, let us therefore inquire into

the expression of opinion by the Appellate Division

of the Supreme Court, First Department, in the

State of New York, in the case of People v. Martin,

203 App. Div. 423. At page 426, Mr. Justice

DOWLING, in writing the opinion of the Court, said:

“Reasons will at once suggest themselves

why it is desirable that the public shall be

protected to the extent of being able to re-

cover some amount of damages from the

owners of such vehicles (i. @, the vehicles

referred to in the statute) * * *. And the

i RIO fat PI RD

18

claim urged by appellant that taxicab owners

are unable to pay the charges for premiums

on bonds shows that they must be to a large

extent unable to respond to any judgments

against them for damages caused by their

negligence.”

Here we have an interpretation by the State

Court of the statute in question, by which the

learned Court holds quite clearly that the purpose

and effect of the statute is to insure to plaintiffs

the payment of their judgment debts against those

defendants within the scope of the act.

If this Court, in distinguishing the various de-

cisions respecting statutes similar to that under

observation in the Ellis case, has laid down the rule

that, in so far as such statutes are for the purpose

of compelling payment of debts by selected debtors,

they are unconstitutional. Then, following the in-

terpretation of the State Court that the purpose of

the act in question is to insure the payment of dam-

age to a plaintiff—purely and simply a statute re-

quiring the payment of a debt—as such, under the

decisions above referred to, the act now under re-

view is unconstitutional.

POINT III.

The statute in respect to the bond re-

quired to be furnished by operators of

the motor vehicles in question is unrea-

sonable and unconstitutional.

In support of this contention, we respectfully

refer to the language of Chief Justice Brown, in

the case of State er rel. Stephenson v. Dillon, 69

anand" tires EADS INN AS i, CE cae ana aaa

19

Southern Reporter 558 and 560 (Fla.). There the

Court referred to the provision of the statute then

under review, for the filing of a bond providing for

“continuing liability” :

“Just what is intended by this language

‘continuing liability,’ is not very clear. If

it means that while the obligors are nom-

inally bound for $5,000, yet after recovery

of that amount it shall continue without

limit to the number of occasions when liabil-

ity may accrue, it is not only a nullification

of the provision requiring that such bond

Shall be in the sum of $5,000 but it is unrea-

sonable as it requires a person to provide

sureties who will assume an indefinite and

unlimited responsibility although nominally

bound for only $5,000.

We have no hesitation in Saying that we

regard this provision as an unreasonable re-

quirement and therefore void.”

Similarly, in the case of Jitney Bus Co. of

Wilkes-Barre v. The City of Wilkes-Barre, 256 Pa.

462, Mr. Justice Porrer said:

“The act requires owners of a jitney to

furnish and keep in full force and effect

either a bond or policy of insurance in a

responsible company, authorized to do busi-

ness under the laws of the State of Penn-

Sylvania, in the sum of $2,500, conditioned

to pay all losses or damage that may result

to any person from the negligent operation

or defective construction of said jitney auto-

mobile. Said bond shall be a continuing lia-

bility, notwithstanding any recovery thereon.

If at any time the bond is found insufficient

for any cause the city counsel may require

the party to replace it with another bond.

We are not quite clear as to what is meant

20

by the requirement ‘the bond shall be a con-

tinuing liability notwithstanding any recov-

ery thereon.’ If this provision means that

while the bond purports to be in the penal

sum of $2,500, yet after recovery to that

amount the obligors shall continue to be

liable for other and additional amounts with-

out limit, then the requirement is clearly a

unreasonable. No surety could properly be ne

required to take such an indefinite and un- } ee

limited responsibility.” ac

The recent decision of the Supreme Court of the

State of Illinois in People v. Hastings, 307 Tl. 92,

likewise voided a statute of a similar nature requir- =

ing a ten thousand dollar bond with continuing lia- =

bility. The Court said: a

“It must be conceded that the continuing

liability clause in this case renders it practi-

cally impossible for any taxicab owner to as

induce private persons to become voluntary p

sureties upon such a bond.”

The statute, being penal in its nature, will not

be upheld if its meaning is doubtful and uncertain,

so that it be difficult or impossible to comply with

(People v. Briggs, 193 N. Y. 457).

The judgment should be reversed.

New York City, N. Y., November 12, as ar

LEFFERT & TYROSER, WA

KATZ & ROSEN,

Attorneys for Allied Taxi

Owners Association

(Amicus Curiae).

NOV 15 1923

WM. R. STANSSUR'

gts SSE

CLERK

OCTOBER TERM, 1922

“F126

WILLIAM HENRY PACKARD,

Appellant.

JOAB H. BANTON, District Attorney in and for the County

of New York, and CHARLES D. NEWTON, Attorney

General of the State of New York,

Appellees.

Brief of Attorney General of New York

CARL SHERMAN,

Attorney General of New York,

In Propria Persona,

Capitol, Albany, N. Y.

EDWARD G. GRIFFIN,

CLAUDE T. DAWES,

Deputies Attorney General,

Of Counsel

ALBANY

J. B. LYON COMPANY, PRINTERS

1923

SUBJECT INDEX

Pace

Preliminary Statement.................... 1

History of the statute..................... 4

Argument :

I. A. Requirements of such security

from businesses affected with a public inter-

est are as common as security to keep the

peace and historically the use of highways

for private traffic has always been subject

to special regulation...................... 4)

B. Substantially similar legislation has

been upheld against similar attacks in the

inferior Federal Court and in the courts of

last resort of some eighteen states......... 5

II. The claims of costliness are mistaken,

or even if true, would not impair the validity

Pe OMEN Ch dss sanuk Kehaneeiccictcc. 23

Addenda:

1. The statute of New York in question.. 29

2. Comparison of some State laws relat-

ing to indemnity bonds on motor vehicles for

ON LNG HUSA GAS Weta b 4K boeadNacKies Cia ek: 32, 33

heirs =

LIST OF CASES

Pace

Adkins v. Childrens’ Hospital, 261 U.S.525. 4

Brazee v. Michigan 241 U.S. 340.......... 6

Brown v. New Jersey 175 U.S. 192.......... 16

Carrol v. Greenwich Insurance Co., 199 U. S.

ae, Et a ae Aa een OIE 14

central Lumber Co ¢. South Dakota, 226 U.

i ee ewe caw nuh nmesed ane akaa aes 15

Chappell Co. v. Sulphur Co., 172 U.S. 581... 16

City of Dallas v. Gill, 199 S. W. 1144........ 22

City of Memphis v. State ex rel. Ryals, 133

Tenn. 83, 179 S. W. 631; L. R. A. 1916 B, p.

Par ree Per eye eee Tee 20

City of Memphis v. State of Tennessee, 133

Tenn. 83, 179 S. W. 631; L. R. A. 1916 B,

Pi RE A RENGAN Es a SKS SAREE SAN ach On KCws 11

City of New York v. Vandewater, 113 A. D.

oe ee LT ECC CTO E Fn tae Deen 6

Commonwealth v. Kingsbury, 199 Mass. 542,

85 N. W. 848, 127 Am. St. Rep. 513....... 9

Commonwealth v. Slocum, 230 Mass. 180; 119

ae OE a a AS vas ERK Oak SRG Oe 18

Commonwealth v. Theberge, 231 Mass. 386;

San See es Kay KCSERADE RK ELC RH KEES dae aes 18

Darnella v. Enright et al., 195 N.Y. Supp.317 2

Dickey v. Davis, 76 W. Va. 576; 85 S. E. 781;

Fe. A Serre eee 11,19

Ehlers v. Gold, 169 Wis. 494; 173 W. 325... 18

Ex Parte Counts, 39 Nev. 61; 153 Pac. 93... 21

iii

iv

Pace

Ex Parte Paul Cardinal, 170 Cal. 519; 150

Pac. 348, L. R. A. 1915 F, p. 850........ 11,19

Ex Parte Parr, 826. Texas Crim. App. 525;

8 fe Ney rer re rer ay oes 22

Fifth Ave. Coach Co. v. New York, 221 U.

i GS POs 5c eh ca wndes hen ecns ceca s 13, 16

Fisher Co. v. Woods, 187 N. Y. 90......... 7

Foster v. Kansas, 112 U.S. 201............ 27

won v. Gmith, 1238 A. D. SOB... wna cneccasss 6

Gardner v. Michigan, 199 U. S. 325, 333.... 16

Gilland v. Manufacturers Coches Ins. Co.,

ee Wis Wa Ba, DURE BOO Ms CEs Ki dc wens kncaces 18

Gorham Manufacturing Co. v. Wendell, 261

CSE ie aia re ery ee 2

Hadfield v. Lundin, 98 Wash. 657; 168 Pace.

516, Ann. Cas. 1918 C, p. 942............. 21

Hazleton v. City of rer 144 Ga. 775.... 20

Hendrick v. Maryland, 235 U.S. 610........ 8

Huston v. City of Des Moines, 176 Lowa 455,

jy ae A Or area eer 11, 20

In re Rahrer, 140 U.S. 545...........0..... 27

Ives v. South Buffalo R. R. Co., 201 N. Y.

271, Ann. Cases 1912 B, 156, 94 N. W. 481,

Ee Sa: rrr 11

Jitney Bus Ass’n v. City Wilkes Barre, 256

ge © (2. FS | Rye sree eereree 20

Kane v. New Jersey, 242 U. S. 160......... 8

Keokee Coke Co. v. Taylor, 234 U. S. 224,

pa tay ee ps SAG eB NEMS, RU Sg 14

La Blane v. City of New Orleans, 138 La. 248

So. 212; on rehearing 139 La. 113........ 21

Lane v. Whitaker, 275 Fed. 476............ 17

Lutz v. City of New Orleans, 235 Fed. 978.. 17

v

PaGE

Mallett v. North Carolina, 181 U.S. 589, 598. 16

Matter of ‘Tiffany and Co., 80 Hun 486...... 2

Maxwell v. Dow, 176 U.S. O81... 6... eee 16

Melconian vy. City of Grand Rapids, 218 Mich.

Set Se es Wea Sn boxe caucaceckeccsans 18

Miller v. Wilson, 286 U.S. 3878, 383........ l4

Missouri v. Lewis, 101 U. 8S. 22, 31.......... 15

Munn v, Illinois 94 U.S. 113.............85 7

New York Health Dept. v. Trinity Chureh,

ete. 140 N.Y. 32; N. Y. Tenement House

Dept. ©. MGONGO, BED. «05 50s ccasascsccs 26

N. Y. 325 aflirmed without opinion, 203 U.S.

|: PES ATE ener ity: Seep rey 26

Nolen v. Riechman, 225 Fed. 812 Supra..... 12,17

Noble Bank v. Haskell, 291 U.S. 104........ 27

1 Vv. ger 187 U.S. 606, 23 8S. Ct. 168, 47

fs: Cie: A i 40 3505 CeAS chee nceeanae 10

Monet v. Pennsylvania, 2382 U.S. 138, 144. 14

People ex rel, Armstrong v. Warden, 183 N.

ee PeOPoerT ee Creare per rer yy) Terre 6

People v. Beakes Dairy Co., 222 N.Y. 416... 7

People ex rel. ete. Flagg, 46 N.Y. 401...... 8

People v. Kostings, 307 IIL, 92; 188 N.E. 269 19

People ex rel. Lardner v. Carson, 78 Hun

BG a cxeuXacis can cevadsedeeeananeseehan 2

People ex rel. Martin, 203 A. D, 423, 203 A.

ER MD sv ekuass<cccecuse WeesessRakbnees 2,19

People ex rel. Moskowitz v. Jenkins, 202 N.

ee Pe Te rrr Tite eT 7

People v. Rereen, 204 N. Y. 397, 97 N. W. 877. 10

People v. Rosenheimer, 209 N. Y., 115, 35

Ann. Cases, 160, 46 L. R. A. (N.S.) 977...—«9

Providence v. Lawrence, 116 At. 664........ 22

Reduction Co. v. Sanitary Works, 199 U. S.

ere Pek Py Rove 27

BO Mae omg ee

vi

Pace

St. John v. N. Y., 201 N. Y. 638............ 13

Schoenfield v. City of Seattle, 265 Fed. 727.

Western Dist. of Wash.................. 17

State v. Ferry Line Auto Bus. Co., 93 Wash.

serps, Borger tach, , Do Ce ee 21

State v. Seattle Taxicab Co., 90 Wash. 416;

sercinMeadioner becca COTTE eT ren 21

State ex rel. “eres v. Dillon, 82 Fla.

“sedi, cadets hee. OTE RT OOO 19

State v. Mayo, “bs Me. 62, 20 Ann. Cas. 512,

7 Atl. 290, 26 L. R. A. (N.S.) 502........ 9

Stern v. Metropolitan Life Ins. Co., 169 A.

wit hs ET OO Oe TU a a 6

S. W. Oil Co. v. Texas, 217 U.S. 114, 121. .13, 14

West v. City of Asbury Park, 89 N. J. L. 402:

cin ae Went ETE 18

Willis v. City of Ft. Smith, 121 Ark. 606; 182

i A WOM n by Ns ONSET RG beens ok nee hea, 21

Wilmington Mining Co. vy. Fulton, 205 U. S

WER acc owelw seks vee Ceti oe oak Ghee aL) 27

Yick Wo v. Hopkins, 118 U. 8. 356.......... 3

IN THE

Supreme Court of the Yuited States

OCTOBER TERM 1922

NO. 607

Wituiam Henry Packarp,

Appellant,

against

Joan H. Banton, District Attor- Attorney-

ney in and for the County of [General's

New York, and Cuartes J), | Brief

NEWTON, Attorney General of

the State of New York,

Appellees. |

STATEMENT

This is an application for an injunction during

the pendency of an action brought to restrain

the enforcement of a State law by the Attorney

General and by the District Attorney of New

York County. The District Court, Hough, Man-

ton, CJJ. and Augustus N. Hand, DJ. denied a

preliminary injunction, without opinion and

without hearing the defendants, and the appeal

was taken directly here pursuant to See. 266 of

the Judicial Code.

The undersigned succeeded the defendant,

Hon. Charles D. Newton, as Attorney-General of

New York, upon January first of this year and

2

we make the same suggestion for substitution in

his place and the same declaration of an intention

to enforce the statute as was made upon behalf

of the State Comptroller in Gorham Manufactur-

ing Co. v. Wendell, 261 U.S. 1. Upon the point of

local practice discussed there, see Matter of Tif-

fany and Co., 80 Hun 486, which was not cited in

our brief: People ex rel. Lardner vy. Carson, 78

Hun 544.

After the decision of the United States Dis-

triet Court an injunction was sought by one Dar-

nella against the Commissioner of Police of the

(Sty of New York and others, for the purpose of

restraining the exeeution of the statute, and this

was denied by the Mr. Justice Fineh of the

Supreme Court. There has been no appeal. Dav-

nella v. Enright et al. 15 N.Y. Supp. 217. After

a fair trial one Martin was convicted of violating

the statute in driving a taxicab without a bond

or insurance policy. The Supreme Court, Appel-

late Division, unanimously upheld the conviction,

with opinion by Dowling J. This was affirmed

without opinion by the Court of Appeals. People

v. Martin, 203 App. Div. 423; 235 N. Y. 590.

In the memorandum of Judge Finch, and in the

opinion of Judge Dowling, reference was made to

the traffic situation which we claim justifies this

exercise of the police power. The very same ques-

tions were argued and decided favorably to us,

as are presented here,

Jurisdiction was laid in the complaint in the

case at bar only under the first subdivision of

See. 24 of the Judicial Code and there is no

attempt to rely upon the 14th subdivision. The

application is brought on under See. 266 of the

Judicial Code. It seems, therefore, that the

attack must be upon the statute as it reads and

without reference to inequality in enforcement

or harshness of administrative practice. Vick

Wo v. Hopkins, 118 U. S. 356. Nor is there any

allegation of diversity of citizenship under which

claim of general unlawfulness ean be taken, or

perhaps of unconstitutionality by virtue of the

constitution of the State. We do not suggest the

possibility that these features may have inter-

vened but we seek only to define the issue as

requiring a determination whether or not this

statute is unfair upon its face.

Upon the return day of the order te show

cause the defendant, Attorney-General, answered

admitting his intention to enforce the statute and

denying the plaintiff's allegations of mixed law

and fact attacking the statute. Affidavits in ad-

dition countering the claims of those offered in

support of the complaint were handed up. Much

we thus offered may be available within the rules

of judicial notice, but our purpose in offering the

affidavits was, so far as we could, to make part

of the record the reasons for the policy of the

law and to avoid any question upon appeal as to

the existenee of these facts. We did not intend,

however, to circumseribe the investigation of the

Court and we do not regard ourselves barred

and limited by such facts justifying the law as

may be submitted by affidavit. Certainly condi-

tions in cities of the first class were not tech-

nically in evidence before the Legislature. The

Court is free to inquire and we have the same

liberty to argue for the policy upholding this

statute as had the individual legislators who

oR MT Wen C2 ees

O08 0a

4

enacted the law and the Governor who approved

it. Adkins v. Children’s Hospital, 261 U. S. 525.

The plaintiff may have a burden to substantiate

his allegations, but we have no shifting respon-

sibility in this regard—not even in rebuttal.

The rules of presumption operate wholly in

favor of the law.

HISTORY OF THE STATUTE

The statute is no unconsidered legislative act

passed in a moment of excitement. It is modelled

upon the legislation of some fourteen other states

and was discussed and examined at length by the

Legislature and Governor. The bill was intro-

duced by Assemblyman Kaufman on January 24,

1922, and by Senator Tolbert on February 23d.

It was first passed as a Senate bill on March 15,

after being reported on March 3d, and amended

on March 9th. It passed in the Assembly on

March 17th and was transmitted to Governor

Nathan L. Miller. He had the bill under eon-

sideration until April 13th, when he approved it

as Chapter 612, adding new section 282-b to the

Highway Law, effective July 1, 1922. In the

meantime, on March 27, the Governor held a

public hearing at the Executive Chamber and

heard arguments for and against the bill. Other

hearings had been given before the legislative

committees.

Prior to the enactment of the statute there is a

long history of agitation for the bonding of oper-

ators, supported by the former head of the Motor

Vehicle Bureau, Secretary of State Hugo; a pre-

sentment of the Grand Jury of New York County

on October 28, 1920; recommendations of Chief

5

Magistrate McAdoo, an accumulation of alarm.

ing statistics indicating laxness in the operation

of public vehicles, coupled with thousands of

executions against taxi operators returned un-

satisfied ; various bills in the Legislature for past

years providing a similar regulation, (Affidavits

Record, pages 22-29, and Addendum to this

Brief).

POINT I

A. REQUIREMENTS OF SUCH SECURITY

FROM BUSINESSES AFFECTED WITH A

PUBLIC INTEREST ARE AS COMMON AS

SECURITY TO KEEP THE PEACE AND

HISTORICALLY THE USE OF HIGHWAYS

FOR PRIVATE TRAFFIC HAS ALWAYS

BEEN SUBJECT TO SPECIAL REGULA-

TION,

B. SUBSTANTIALLY SIMILAR LEGISLA-

TION HAS BEEN UPHELD AGAINST

SIMILAR ATTACKS IN THE INFERIOR

FEDERAL COURTS AND IN THE COURTS

OF LAST RESORT OF SOME BRIGHTEEN

STATES.

The segregation of cities of the first class for

purposes of regulation is common in our law, and

the particular regulation is but the extension of

a familiar requirement for other occupations.

Bonds have heen required of those selling liquor,

for the benefit of any one injured. These have

been upheld, Black on Intoxicating Liquors, See.

149. The State has stepped in to compel

obedience to judicial mandates in instances too

numerous almost to compile. Pawnbrokers must

2

6

be licensed to secure the public against the pawn-

broker’s participation in crimes and pawnbrokers

must also be bonded to prevent fraud upon their

customers Who might be ** aggrieved by their mis-

conduct (Sees. 40-42, General Business Law),

Private detectives must be licensed, and must also

be bonded to secure any person injured ‘* by the

wilful, malicious and wrongful act’’ of the de-

tective (Sees. 70, 73, General Business Law; Fox

v. Smith, 123 A. D. 369). Auctioneers have been

licensed and bonded from the earliest times (See.

23, General Business Law). Insurance agents

must be licensed (See. 91, Insurance Law; Stern

v. Metropolitan Life Ins. Co., 169 A. D. 217). So

also must junk dealers (Sec. 60, General Business

Law; City of New York v. Vandewater, 113 A. D,

456), and peddlers (See. 30, General Business

Law). Commission merchants must be licensed

and bonded ‘* to secure the honest accounting to

the consignor of the moneys received or due and

owing by such Commission Merchant ’’ (Agricul-

tural Law, Sec. 284+). Steamship ticket agents

must be bonded to insure against ‘* fraud or mis-

representation to any purchaser of such ticket ”

(Sees. 150-154, General Business Law). Em-

ployment agencies must be licensed and bonded

(Sec. 177, General Business Law) to pay the

damages ‘‘ occasioned to any person by reason of

any misstatement, misrepresentation, fraud or

deceit ’’ on the part of the agency (People ex rel.

Armstrong v. Warden, 183 N. Y. 223; Brazee v.

Michigan, 241 U.S. 340).

Therefore, at the outset of our argument we

reinforee the ordinary presumptions by a demon-

stration of care and consideration in formulation

99

7

and resort to familiar principles in application,

The occupations of innkeepers, common car-

riers and a few others were at common law sub-

ject to special liabilities that could not justifiably

be imposed upon ordinary activities. Elabora-

tion or extension of restrictions to classes here-

tofore so segregated have not been examined

under the same principles as cases where the law

first imposes upon a long established industry or

occupation special treatment. Charles Wolfe

Packing Co. v. Court of Industrial Relations of

Kausas decided June 11, 1923. The case at bar

is not to be considered as in Munn vy. Lllinois,

v4 U. S. 113, where for the first time grain

elevators were declared to be vested with a pub-

lic interest; or where persons selling real estate

were subjected to stringent regulation, Fisher

Co. v. Woods, 187 N. Y. 90; or where all dealers

in milk were required to be bonded, People vy.

Beakes Dairy Co., 222 NX. Y. 416. Chief Judge

Cullen, of our Court of Appeals, deals with the

two classes of cases in an arresting dictum in

People ex rel. Moskowitz vy. Jenkins, 202 N. Y. 53,

o9, where he says:

‘* It must be always remembered that law,

even constitutional law, rests not wholly on

principle, but in part on custom and tradi-

tion. A tourist from another planet might at

first be unable to perceive why a citizen has

the inalienable right to raise and possess

chickens at all times, and yet can be deprived

of that right as to partridges. But if he

pursued his historical study of game laws

back to the times when a common man ran

greater danger of capital punishment for kill-

ing a deer than for killing a human being, he

8

would understand how the distinction came

to exist. Chief Judge Ruger in the Sehwah

case shows that during and even. since

colonial times the calling of auctioneer had

been regarded as a vocation not open to all,

but subject to special license and authority,”

Not only are automobiles carrying passengers

for hire liable to special and peeuliar regulation,

but the whole subject matter of motor vehicles

is classified separately, even where privately

operated upon one’s own personal business, So,

When this Court caine first to deal with the ques.

tion of State laws coupled with licenses and rewy

lations, a marked difference was recognized in

relation to such vehicles. Their operation was

classified as something not enjoying the same

rights and privileges historically as ordinary

businesses theretofore unregulated. In [endrick

Vv. Maryland, 235 U.S. 610, a unanimous eourt

said that the movement of motor vehicles is

attended by constant and serious dangers and is

abnormally destructive of highways. Therefore,

regulations to prevent such dangers could be en-

foreed, Further it was said improved highways

are a special facility for automobiles and justify

not only the exaction of compensation but the

imposition of the regulations. Whether the high-

Ways are city asphalt pavements or State im-

proved conerete roads, the obligation of the user

is ultimately to the State rather than to the

municipality in New York State. People ex rel.

etc. v. Flagg, 46 N. Y. 401.

State regulation of this subject was again

tested in Kane v. New Jersey, 242 U.S. 160. The

statute complained of there, in one feature was

9

like that in the case at bar. ‘Che New J ersey Law

required non-resident owners to designate the

Secretary of State as their atloruey upon whom

process might be served in any action growing

out of the operation of an automobile. ‘Lue regu-

lation was upheld not only to those moving ito

the State, but also those moving through it.

Therefore, the very complete control of the states

over this particular subject has had the favorable

scrutiny of this Court.

In its particular application this control has

been said. to extend to the power to absolutely

exclude metor vehicles from the use of public

highways. In upholding the coustitutionality of

the requirement that one after an accident must

invite arrest by confessing even a misdeed, Chiet

Judge Cullen said in People y, Rosenheimer, 209

N. Y. 115, 35 Ann. Cases, LOU; 46 L. R.A. (NL S.)

977:

“* * * There is one ground upon which,

in my opinion, the validity of the statute can

be safely placed. The Legislature might pro-

hibit altogether the use of motor vehicles

upon the highways or streets of the state.

It has been so held in State y. Mayo, 106 Me.

62, 20 Ann. Cas. 512, 75 Atl. 295, 26 L. R. A.

(N. S.) 502, and Commonwealth vy. Kings-

bury, 199 Mass. 542, 85 N. BE. 848, 127 Am.

St. Rep. 513. Doubtless the legislature could

not prevent citizens from using the high-

ways in the ordinary manner, nor would the

mere fact that the machine used for the

movement of persons or things along the

highway was novel justify its exclusion. Bui

the right to use the highway by any person

3

10

must be exercised in a mode consistent with

the equal rights of others to use the high-

way. That the motor vehicle on account of

its size and weight, of its great power and of

the great speed which it is capable of attain

ing, creates, unless managed by careful and

competent operators, a most serious danger,

both to other travelers on the highway and

to the occupants of the vehicles themselves,

is too clearly a matter of common knowledge

to justify discussion. The fatalities caused

by them are so numerous as to permit the

legislature, if it deemed it wise, to wholly

forbid their use. (Otis v. Parker, 187 U.S.

606, 25 8S. Ct. 168, 47 U. S. (LL. ed.) 323;

People v. Persce, 204 N. Y. 397, 97 N. E. S77.)

If the legislature may declare it a erime to

use a motor vehicle on the highway under

any circumstances, I do not see why it may

not equally declare it a crime to so use such

a vehicle as to injure any one in person or

property. That, in effect, is a diminution,

not an increase, of the criminality it had the

power to attribute to the use of a motor

vehicle. The provision now before us is but

a still further diminution of the statutory

inhibition the legislature would be authorized

to enact. It does not declare it a crime to

operate an automobile on the highway or

even that in its operation injury to persons

or property shall be a crime, but only that

failure by the operator, in case of such in-

jury, to identify himself shall be criminal.

! cannot see why the greater power does not

ae 2 “x m9 creed 2 PI ab 4 UK Bede LD ORIN 1 a PR,

1l

include the less. Of course, the whole of

this argument rests on the proposition that

in operating a motor vehicle the operator

exercises a privilege which might be denied

him, and not a right, and that in a case of

a privilege the legislature may preseribe on

What conditions it shall be exercised. This

principle was recognized by us in the ease

of Ives vy. South Buffalo R. Co., 201 N. Y.

271, Ann, Cas. 1912B 156, 94 N. E. 451,

L. R. A. (N. S.) 162, * * *»

If such extreme restrictions applied to all

automobiles would comply with the Constitu-

tion, does our statute become invalid as soon as

it is limited to automobiles carrying passengers

for hire?

The argument that such a limitation is uneon-

stitutional is not new, but has been made unsue-

cessfully in many eases hereafter discussed or

cited,

Where an even narrower application of the

statute, required a bond or liability insurance for

jitneys only, inequality and unconstitutional dis-

crimination has been denied.

Huston v. City of Des Moines, 176 Towa 455:

156 N. ys 883; City of Memphis v. State of Ten-

veSSEE, 133 Tenn. 83; 179 S. W. 63 4 L. R. A,

1916 B. p. 1151; Ex Parte Cardinal. 170 Cal. 519;

150 Pa. 348; L. R. A. 1915 F. p. 850; Dickey v.

Davis, 76 W. Va. 576; 85 S. EB. 781; L. R.A. 1915

F. p. 840 are illustrative of cases where the

court has sought for reasons to support a classi

fication of ‘‘ jitneys,’’ although street ears and

taxicabs were excluded from the requirement of

a bond. The reasons given are interesting, but

‘¢

12

are of chief importance here as demonstrating

that even a more restricted classification may be

upheld than we argue for. In the present statute

we have a requirement that all motor vehicles

‘* carrying passengers for hire ’’? must be bonded

or insured, Street cars and omnibuses are ex-

cluded, since both are under the supervision of

the Publie Service Commission and differ from

taxicabs, ete., in essentials.

Hlowever, there are cases where the classifica-

tion has been as broad as in our statute. Nolen

v. Riechman, 225 Fed. 812, was decided by a

statutory court of three judges in the Western

District of Tennessee. The Court gives the

reasons Why automobiles operated as common

carriers or for hire may be subjected to this

special regulation without a like requirement for

automobiles privately operated. (P. 819.)

‘* Tt may well have been that the Legisla-

ture had in mind, when it enacted the statute

in question, that those engaging in the busi-

ness which the act sought to regulate oper-

ated vehicles susceptible of becoming danger-

ous to the public by the manner of their oper-

ation; that they had no fixed track upon

which to run, and were at liberty to move

over the entire surface of the street; that

they had no schedule; that pedestrians had

no way of knowing when and where to expect

them; that they increased the danger to per-

sons using the street, whether as pedestrians

or while boarding or leaving street cars or

other vehicles; that they stopped at street

crossings, or along the cu*b between street

13

crossings to receive and discharge _ pas-

sengers; that very often the driver owns the

machine, or at least an equity in it; that many

of them are financially irresponsible; that

the patrons of such vehicles are composed

of men, women and children; that the

vehicles in the hands of earcless drivers,

might rush through crowded streets at a

dangerous rate of speed, probably without

any financial responsibility to their patrons

or others upon whom damage might be in-

flicted by such machines, because of the negli-

gence of the operators.”’

The Court then goes on to say that the regu-

lation might constitutionally be confined only to

jitneys and not extended to taxicabs; but the

opinion is careful to point out at page 820 that it

is treating the statute and upholding it as if its

restrictions applied to both jitneys and taxieabs.

Therefore, it appears that whether the classi-

fication includes or excludes taxicabs, it is neither

too broad nor too narrow. This is right upon

principle, for the power to make a grand classi-

fication is peculiarly legislative. ‘ Legislation

to be practical and efficient must regard the spe-

cial purpose as well as the ultimate purpose.’’

St. John v. New York, 201 N. Y. 633; as when ad-

vertising wagons and busses were excluded from

certain city streets, Fifth Ave. Coach Co. v.

New York, 221 U. S. 467.

Moreover a statute cannot be proved uncon-

stitutional by thinking up other instances to

which it might with equal propriety have been

made to apply. (S. W. Oil Co. v. Texas, 217 U.

+

fee,

14

S. 114, 121; Keokee Coke Co. v. Taylor, 234 U.S.

224, 227.)

As is said in Miller v. Wilson, 236 U.S. 373,

383:

** It is a well-established principle that

the legislature is mot bound, in order to sup-

port the constitutional validity of its regu-

lation, to extend it to all eases which it might

possibly reach. Dealing with practieal exig-

encies, the legislature may be guided by ex-

perience. Patsome vy. Pennsylvania, 232 VU,

S. 138, 144. It is free to recognize degrees of

harm, and it may confine its restrictions to

those classes of cases where the need is

deemed to be clearest. As has been said, it

may ‘ proceed cautiously, step by step,’ and

‘if an evil is specially experienced in a par-

ticular branch of business ’ it is not neces-

sary that the prohibition ‘ should be couched

in all-embracing terms.’ Carrol v. Greenwich

Insurance Co., 199 U.S. 401, 411. If the law

presumably hits the evil where it is most felt,

it is not to be overthrown because there are

other instances to which it might have been

applied.”’

And in Keokee Coke Co. v. Taylor, 234 U.S.

994 997. !

——Tty .

‘* The suggestion that others besides min-

ing and manufacturing companies may keep

shops and pay their workmen with orders on

themselves for merchandise is not enough to

overthrow a law that must be presented to

be deemed by the legislature coextensive with

the practical need.’’

15

A State, as was said in Central Lumber Co. v.

South Dakota, 226 U. 8. 157, 160:

“may direct its law against what it deems

the evil as it actually exists without covering

the whole field of possible abuses, and it may

do so none the less that the forbidden act

does not differ in kind from those that are

allowed,

“ * * Tf a class is deemed to present a

conspicuous example of what the legislature

seeks to prevent, the Fourteenth Amend-

ment allows it to be dealt with although

otherwise and merely logically not distin-

guishable from others not embraced in the

law.’’

In the cases we shall now discuss in the second

subdivision of this point, the reason why motor

busses running on fixed routes, express trucks

‘arrying packages instead of human beings and

privately operated automobiles in large cities

could properly be excluded from the requirement

for a bond are in nearly every instance discussed.

Of course, the division of legislation by classes

of cities is very common in New York. Article 12,

See. 2 of the State Constitution recognizes this.

This we believe will not be much questioned, As

Was said in Missouri v. Lewis, 101 U.S. 22, 31:

“If the State of New York, for example,

should see fit to adept the civil law and its

method of procedure for New York City and

the surrounding counties, and the common

law and its method of procedure for the

rest of the State, there is nothing in the Con-

stitution of the United States to prevent its

on 20 CINE TA

16

doing so. This would not, of itself, within

the meaning of the Fourteenth Amendment,

be a denial to any person of the equal pro-

tection of the laws. If every person residing

or being in either portion of the State should

be accorded the equal protection of the laws

prevailing there, he could not justly complain

of a violation of the clause referred to.’’

See also Mallett v. North Carolina, 181 U. S.

589, 598; Brown v. New Jersey, 175 U.S. 192;

Maxwell v. Dow, 176 U. 8. 581; Chappell Co. vy.

Sulphur Co., 172 U.S. 474, 475; Gardner v. Mich-

igan, 199 U. 8S. 325, 333. See particularly Fifth

Ave. Coach Co. v. City of New York, 221 U.S.

467, supra, where the regulation of vehicles was

even limited to certain streets in the city.

iver since the enactment of the Motor Vehicle

Law of New York in 1910, there has been made

distinction between the licensing of different

vehicles. This classification has been constantly

growing until differentiation has been made be-

tween commercial vehicles, trucks, trailers, om-

nibuses, station wagons, pleasure cars and light

delivery wagons. (Highway Law, Article 11.)

In the very beginning, ordinance power, except

in a single instance, was withheld from villages

and granted in an increasing measure to cities

(Sec. 288, Highway Law). Under the new Gen-

eral Highway Traffic Law, a motorist operating

in a large city is subject to numerous and minute

regulations from which he is free by mandate

of the statute in smaller communities. All oper-

ators are required to be licensed in the Greater

City; upstate only chauffeurs have to be person-

ally licensed. Highway Law, Sec. 289.

17

B. The question of the right to require an

indemnity bond in principle like that required

under the statute in litigation here, has been

considered in many cases and we have been un-

able to find any ease where the provision was

found unconstitutional. The United States Cir-

cuit Court of Appeals, Fifth Circuit, has passed

favorably upon the question.

The cases are:

Federal.

Lutz v. City of New Orleans, 235 Fed. 978,

aff’d. by 5th Cireuit, Court of Appeals on opinion

below, 237 Fed. 1018.

This was an application before District Judge

Foster for a preliminary injunction. The plain-

tiffs complained of the requirement of a bond for

$5,000. The ordinance required that a surety

company bond only be given and no surety would

execute such a bond without a deposit of $5,000

in cash. The law was held constitutional.

Nolen v. Richman, 225 Fed. 812, supra.

Shoenfield v. City of Seattle, 265 Fed.

(27,~Western District of Washing-

ton. Three judges pursuant to See.

266 of the Judicial Code.

Lane y. Whitaker, 275 Fed. 476. Dis-

trict Court of Connecticut, Manton,

C. J., Thomas and Knox, D. J. J.

These cases recognize the rule of absolute reg-

ulation applied to as harrow a class as jitneys.

5

18

Massachusetts.

Commonwealth vy. Slocum, 230 Mass.

180; 119 N. BE. O87,

Commonwealth v. Theberge, 251 Mass.

386; 121 N. E. 30.

The ordinances pursuant to the statute re-

guierd a surety bond for $1,000 upon all motor

vehicles transporting pessengers for hire be-

tween fixed and regular termini (jitneys).

This was upheld in the first case as reasonable

and the second case follows the ruling.

Nes Jersey.

West v. City of Asbury Park, 89 N. J.

L. 402; 99 A. 190.

Gilland ve. Manufacturers Casualty

Ins. Co., 92 N. J. La. 14l; 104 A. 70%,

The first ease had to do with an act requiring

an iisurance policy of $5,000 from auto bus and

jitney operators. Protest was made beeause taxi-

eabs were not included, but the statute was up-

held. Thé& second case follows the West case.

Michigan.

Meleonian vy. City of Grand Rapids,

218 Mich. 397; 188 N. W. 521.

Substantially the same requirement

was upheld here.

Wisconsin.

Ehlers v. Gold, 169 Wis. 494; 173 N.

W. 325.

19

The statute here applied to all common ear-

rier automobiles on fixed routes and required a

bond to pay $2,500 to any one person, or $5,000

in any one accident. The constitutionality of the

statute Was not attacked. The verdict in favor

of the plaintiff was set aside upon other grounds.

Illinois.

People v. Kastings, 307 Ul. 92: 138

N. E. 269.

This ease followed the New York case of

People v. Martin, supra.

Florida.

State ex rel. Stepherson v. Dillon, 82

Fla. 276; 89 So. 558.

The requirements of the ordinance here were

as broad as in the statute in the case at bar. A

bond or insurance poliey of $5,090 was required

of all motor vehicles carrying passengers for

hire. The ordinance was upheld, but was con-

demned in so far as the liability on the bond was

continuing.

West Virginia.

Dickey v. Davis, 76 W. Va. 576: 8. E.

781; L. R. A. 1915 F. p. 840 supra.

The ordinance here required a bond of $5,000

of jitney operators and was upheld,

California.

Ex Parte Paul Cardinal. 170 Cal. 519:

150 Pac. 348; L. R.A. 1915 F. p. S50,

supra,

¢

bor Reap NAC TEN

20

An insurance policy for a maximum liability of

$10,000 was required under the ordinance and

was upheld.

Tennessee.

City of Memphis v. State ex rel. Ryals,

133 Tenn. 83, 179 S. W. 631; L. R.

A. 1916 B. p. 1151, supra.

This law required a bond of $5,000 for each

car operated as a jitney. The Court indicates

the difference between the regulation which may

be applied to automobiles and farm produce mer-

chants. The statute was upheld.

Iowa.

Huston v. City of Des Moines, 116

Towa 455; 156 N. W. 883.

This law required a bond of $2,000 for jitneys.

A discrimination between jitneys on the one hand,

and motor busses and taxicabs was held justified.

Pennsylvania.

Jitney Bus Ass’n. v. City Wilkes-

Barre, 256 Pa. St. 462; 100 A. 954.

This law required a bond of $2,500 of jitneys

and there was the same complaint that surety

companies would not write the bond required.

The Court criticized the lack of an alternative for

personal sureties. The statute in the case at bar,

of course, permits this alternative.

Georgia.

Hazleton v. City of Atlanta, 144 Ga.

775.

21

A bond of $5,000 for jitneys was required.

Taxicabs were not included and the law was up-

held. A distinction in favor of taxicabs was

upheld.

Louisiana.

La Blane vy. City of New Orleans, 138

La, 243 So. 212; on rehearing 139

La. 113.

A law requiring a bond of $5,000 from jitney

operators was upheld.

Nevada.

Ex Parte Counts, 39 Nev. 61; 153 Pae.

93.

A bond or insurance of $10,000 for jitneys was

upheld,

Arkansas.

Willis v. City of Ft. Smith, 121 Ark.

606; 182 S. W. 275.

A bond of $2,500 was required of jitneys and

Was upheld.

Washington.

Hadfield vy. Lundin, 98 Wash. 657; 168

Pac. 516, Ann. Cas. 1918 C. p. 942.

22

This case arose after the Supreme Court had

twice held the law constitutional in:

State v. Seattle Taxicab Co., 90 Wash.

416; 156 Pac. 837.

State v. Ferry Line Auto Bus Co., 95

Wash. 614; 161 Pac. 467.

These cases are specially important because of

the repeated examination of the question and

beeause the law applied to all transportation for

hire in cities of the first class. The law was up-

held.

Texas.

Again, we have a jurisdiction where the ques

ton was repeatedly examined.

Ex Parte Parr, 826 Texas Crim. App.

525; 200 S. W. 404.

City of Dallas vy. Gill, 199 S. W. 1144.

Various bonding and regulation provisions

were upheld.

Rhode Island.

Providence v. Lawrence, 116 At. 664.

Substantially the same requirement was upheld.

Our law is the broadest in its classification of

any we find has been enacted. The only carriers

which use the streets which are excluded, are

ees

y

|

|

,

f

;

mg

23

strect cars, express trucks and omnibuses oper-

ating upon a regular route. The reasons why

street railway companies are not required to give

a bond are fully set forth in the cases cited supra.

These reasons apply equally to omnibuses oper-

ating under franchises; especially is this true in

view of the provisions of See. 26 of the Trans-

portation Act of New York, as amended by Laws

of 1919, chapter 37, giving iocal authorities and

the Public Service Commission a control and

supervision over those not exercised over other

types of motor vehicles carrying passengers for

hire.

The foregoing having dealt with the claim tha:

there is a denial of the equal protection of the

laws, there is left the assertion that there is

taking of property without compensation or,

rather, a denial of due process.

Ii

THE CLAIMS OF COSTLINESS ARE MIS-

TAKEN, OR EVEN IF PRUE, WOULD NOT

IMPAIR THE VALIDITY OF THE STATUTE,

The argument we have developed in our fore-

going Point I seems to be unassailable by the

very weight of authority. The plaintiff must dis-

tinguish the instant case from the foregoing, and

there is left nothing therefore for him to assert

except what is pleaded in the fifth paragraph of

his complaint. There, referring to the cost of the

bond, his claim is, ‘‘ This law is unconstitutional

24

because it requires a man to pay out $960 a year

to comply with it!’’

Fortunately, such a figure for the cost of com-

pliance cannot be substantiated and is indeed

refuted in detail by the affidavits we submitted.

We say fortunately, because we are solicitous

that the policy of our lawmakers should not have

imposed hardship upon the operators or com-

pelled an increase in the cost of the service to

the public. Although we may be interested in

the policy of the Legislature, it surely does not

follow that the court may condemn that policy

simply because it may expend itself uneco-

nomically.

The statute offers three methods of compliance:

1. A personal bond.

2. A surety company bond.

3. A policy of insurance.

Even if the stock companies will exact a maxi

mum rate of $960 for taxicabs from certain indi-

viduals, for a policy of insurance, this charge

does not represent the typical instance, for it

covers accidents as well happening outside cities

of the first class. We tried ourselves to ascer-

tain what would be the cost of compliance and

were confused with figures running all the way

from $60 a year for a surety bond or policy of

insurance to the maximum stated by the plaintiff.

Yet, whatever is the ultimate truth as to the cost

of the methods of compliance, there remains

always the personal bond, costing nothing, which

was provided by the Legislature with a whole-

some regard for the operator in small business.

It must be apparent that the men who own and

ieee

25

operate their own cars and who can demonstrate

to their neighbors and friends that they are care-

ful, experienced and honest, compose the group

of persons which the Legislature must have had

in mind and for whose benefit it inserted the pro-

vision that the owner of a motor vehicle might

file a bond executed by two personal sureties.

On the other hand, the large corporation which

operates its taxicabs of necessity by hired agents

or chauffeurs who come and go, shifting from

month to month, would have no opportunity other

than in the exceptional case to ask any one to

vouch for their honesty, skill or experience, and

to thus become’ a_ personal surety upon their

bond. Such corporation would therefore on its

part naturally look to the insurance company for

its insurance policy or bond, which would in turn

look to the corporation should it be held liable

under the bond executed for the latter.

Curiously enough, in the hearings before the

Governor and in the Legislature, the complaints

against the law when then proposed, did not come

from the larger corporations which would thus

resort to surety companies, but from the opera-

tors of limited field, like the appellant, for whom

the Legislature has provided three means of com-

pliance.

Nevertheless, the appellant complains of the

cost of a surety bond or insurance policy when

special provision has been made for his case by

which he can also obtain his coverage personally

through friends,

Three possible methods of compliance have been

provided, as we have noted, 7. ¢., a surety com-

pany bond, an insurance policy, a personal bond.

7

0 ENA OUTER E RCT

*, a he Le

ewer COLELLO BIE IF OLS L I WEI IO BSI:

26

All three methods apply to every one the law

affects. Variations in the coverage that may be

afforded in the market are almost infinite and

are argued out at length in our affidavits. Lia-

bility insurance has become one of the most com.

mon resorts in ordinary business experience.

The Legislature has simply compelled persons

exercising the special privilege of trafficking ou

public highways to seek a protection upon which

the ordinarily prudent man operating a motor

vehicle anywhere customarily depends.

Yet the astonishing charge is made that such

compulsion is contiseatory, Certainly a strange

test of reasonableness is set up, when the expense

of a usual practice in business experience is

offered as the only criterion.

We think that we have said enough to show

that the statute is fair and constitutional upon its

face. It is the practical operation of the law

which is, nevertheless, still insisted upon by the

appellant. Without allegation of sufficient juris-

dictional grounds and lacking a proper experl-

ence test he argued below as an abstract matter

that, although the legislation may be unimpeach-

able on its face, conditions in the market, which

the lawmakers did not foresee, convert the meas-

ure into an unconstitutional one.

In the Tenement House cases (New York

Health Dept. v. Trinity Church, ete., 145 N. ¥.

32; N. Y. Ten. House Dept. v. Moeschen, 179

N. Y. 325; affirmed without opinion, 203 U. 5.

583) the claim that the cost of the installation

of toilets and water in a tenement house was

greater than the property profitably could with-

stand, was argued and rejected. These cases

Ot >

27

illustrate a type upon which appellant doubtless

relies for his test of reasonableness. We think

he wiil find no case of compelling authority which

decides that the mere cost of an improvement,

appliance, device, system or practice impairs a

law commanding their installation, where, as here

and in the Tenement House cases, the thing

ordered done is customary and usual in ordinary

business. Wilmington Mining Co. v. Fulton, 205

U.S. 60; Noble Bank v. Haskell, 291 U.S. 104;

Reduction Co. v. Sanitary Works, 199 U.S. 3UG,

and Lhe Tenement House are all cases upholding

the statutes that were attacked upon the ground

they were expensive to comply with.

We emphasize that taxicab operation is not

like mine operation, the management of a bank,

ihe conduct of a grain elevator or the business of

a milk factory, Aansas Industrial Court Case,

supra. Regulation of these has nearly always

been sustained, but limitations upon such regula-

tion may be coneeived to exist. No limitation

whatever applies to the regulation by the Legis-

lature of the use of city streets. The absolute

prohibition of the sale of intoxicants was

held not to be forbidden by the restraints upon

Congress within its territorial jurisdiction.

(dn re Rahrer, 140 U. S. 545) or by the

restraints upon the States (/oster y. Kansas, 112

U.S. 201). Taxicab drivers, livery keepers and

others soliciting business upon the streets are in

the same position as licensed dealers in liquors

were. Therefore the question of costliness does

not properly enter into the definition of a power

which may absolutely prohibit. Admitting, as

‘he plaintiff must, that the Legislature ean forbid

the operation of taxicabs, how ean he be granted

“ PEL AMS IE TC

—

ee eee

a ea et

rT Rye aP hy oh

28

the remedy sought here, because, instead of

absolute prohibition, regulation may become so

burdensome as to work the same lawful and con-

stitutional result.

The court cannot properly say that because

compliance may be costly the Legislature could

never have intended this result. The purpose of

the Legislature to require a surety bond, a per-

sonal bond or an insurance policy is perfectly

clear and admitted by all.

THE JUDGMENT SHOULD BE AFFIRMED

WITH COSTS.

Atgany, N. Y., Nov. 7, 1923.

CARL SHERMAN,

Attorney-General of New York.

Epwarp G. Grirrin,

Ciaupe T. Dawes,

Of Counsel.

m9

29

ADDENDA

THE STATUTE

Cuaprer 612

AN ACT to amend the highway law, in requiring

indemnity bonds or insurance policies from

owners of motor vehicles transporting passen-

gers for hire in cities of the first class.

Became a law April 13, 1922, with the approval

of the Governor, Passed, three-fifths being

present.

3

f

The People of the State of New York, repre-

sented in Senate and Assembly, do enact as

follows:

TE RPDS PRE CANON 6 RPeS,

Section 1. Chapter thirty of the laws of nine-

teen hundred and nine, entitled ‘An act relating

to highways, constituting chapter twenty-five of

the consolidated laws.”’ js hereby amended by

inserting therein a new section, to be section two

hundred and eighty-two-b, to read as follows:

§ 282-b. Indemnity bonds or insurance policies

in cities of the first class. Every person, firm, é

association or corporation engaged in the busi- &

ness of carrying or transporting passengers for

hire in any motor vehicle, except street cars, and

motor vehicles operated under a franchise by a

corporation subject to the provisions of the pub-

lie service commission law over, upon or along

any publie street in a city of the first class shall

deposit and file with the state tax commission

for each motor vehicle intended to be so operated,

either a personal bond, with at least two sureties

8

BPS UN TW Gory

ae pe

FERNS DRIES Ped EZ TL EE ENT

30

approved by the state tax commission, a corpo-

rate surety bond or a policy of insurance in a

solvent and responsible company authorized to

do business in the state, approved by the state

tax commission, in the sum of two thousand five

hundred dollars, conditioned for the payment of

any judgment recovered against such person,

firm, association or corporation for death or for

injury to persons or property caused in the oper-

ation or the defective construction of such motor

vehicle. Such bond or policy of insurance shall!

contain a provision for a continuing liability

thereunder notwithstanding any — recovery

thereon. If at any time, in the judgment of the

state tax commission, such bond or policy is not

sufficient for any cause, the commission may re-

quire the owner of such motor vehicle to replace

such bond or policy with another approved by the

commission. Upon the acceptance of a bond or

policy, pursuant to this section, the state tax com-

mission shall issue to the owner of such motor

vehicle a certificate describing such vehicle and

that the owner thereof has filed a bond, or policy,

as the case may he, required by this section.

Either a personal or corporate surety upon a

bond filed pursuant to this section or an insur-

ance company whose policy has been so filed, may

file a notice in the office of the state tax commis-

sion that upon the expiration of twenty days

from such filing such surety will cease to be liable

upon such bond, or in the case of such insurance

company, that upon the expiration of such time

such policy will be canceled. The state tax com-

mission shall thereupon notify the owner of such

motor vehicle of the filing of such notice, and

ae BSI, a ote S oa? Wwe ts Terns

31

unless such owner shall file a new bond or policy

of an insurance company, as_provided by this sec-

tion, within such time as shall be specified by the

state tax commission, such owner shall cease to

operate or cause such motor vehicle to be oper:

ated, in such city, and the registration of such

motor vehicle shall be automatically revoked.

Any person, firm, association or corporation,

operating a motor vehicle in a city of the first

class, as to which a bond or policy of insurance

is required by this section who or which shall

operate such vehicle, or cause the same to be

operated, while such a bond or policy, approved

by the state tax commission as required by this

section, is not on file with the tax commission,

shall be guilty of a misdemeanor.

Bd Me eh

a SOT

Oe Oe ay Marre Lae Sey

§ 2. This act shall take effect July first, nine-

teen hundred and twenty-two. ;

State or New York, ma

Office of the Secretary of State. } ss

I have compared the preceding with the origi-

nal law on file in this office, and do hereby certify

that the same is a correct ‘transcript therefrom

and of the whole of said original law.

JOHN J. LYONS,

Secretary of State.

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