# Amicus Curiae Brief — Packard v. Banton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1924
- **Citation:** 264 U.S. 140

## Text

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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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

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0410%3A4. Public record. Not legal advice.