*

*

account of coverture, and that the common law the second part, the receipt of which is aclimiting their estates is abrogated, giving them knowledged, have granted, bargained, sold, all the rights of feme sole, does not affect the estates of married women held at the time of and conveyed, its passage, since it does not purport on its face "and doth hereby grant, bargain, sell and convey so to do, and a statute will not be construed unto the said parties of the second part the to alter the common law further than it express following described premises, to wit." ly declares or necessarily implies a change.

Here is recited a description of the land, [Ed. Note.-For other cases, see Husband and

and then : Wife, Cent. Dig. $ 394; Dec. Dig. Om 113.]

"With the hereditaments and appurtenances Appeal from Chancery Court, Knox Coun- thereunto appertaining,

except the

said Darcus Hutchens and Jefferson Hutchens ty; Will D. Wright, Chancellor.

of the second part are to pay an annual rent of Action by J. C. Bennett and others against the sum of $25 to the said Rufus M. Bennett as Jefferson Hutchens and another. From an long as he may live." order dismissing the bill, plaintiffs appeal. Then follow the usual habendum clause Afirmed.

and general covenants of warranty, the tesNoble Smithson, of Knoxville, for appel- timonium clause, the signature of the granlants. A. C. Grimm and W. F. Black, both tor, signature of a witness, certificates of of Knoxville, for appellees.

acknowledgment, etc., all in proper form.

The stipulation for an annual rental was

part of the consideration for the deed. The BUCHANAN, J. The action is ejectment, bill avers that the grantees in the deed were brought by the collateral kindred and heirs husband and wife when it was made. at law of Darcus Hutchens. The land in

[1] We think it is clear that this deed vestsuit was conveyed to her and her husband, ed in Jefferson and Darcus Hutchens an esJefferson Hutchens, by deed dated September tate by the entireties. Such a deed to per22, 1897, filed for registration and registered sons not husband and wife, considered under June 24, 1899. The land conveyed by the the common law, would have created in the deed was held by the husband and wife until

grantees an estate in joint tenancy. Each her death intestate and without issue in of the grantees under such a deed would September, 1914. It was thereafter held by have taken as individuals, one and the same Jefferson Hutchens until June 22, 1915, when interest at one and the same time by one he, by deed, conveyed it to R. L. Peters, his interest at one and the same time by one codefendant herein. Hutchens, we assume, held the estate conveyed by one and the

and the same deed, and they would have was made a defendant in this suit upon the idea that, as the holder of a purchase-money ties it is held that a deed to husband and

same undivided possession. By the authorilien, he was a necessary party. The defendants interposed a demurrer to the bill. The created in them an estate in joint tenancy,

wife, which would at common law have chancellor sustained the demurrer, dismissed the bill, and complainants appealed.

had they not been married, does, by the fact

The theory of the bill is that, upon the death of of the marriage, create in the husband and

This upon Mrs. Hutchens, complainants, as her heirs wife an estate by the entireties. at law, became the owners of an undivided the reasoning that in the eye of the law one-half interest in the land; or, in other husband and wife are not separate indivi luwords, the theory is that, at the time of the als, but one person, and the estate vests in death of Mrs. Hutchens, she and her hus- them as an entirety. In legal contemplation,

each of them is seised of the whole estate, band were tenants in common, each owning an undivided one-half interest in the prop

and the death of one of them does not put erty.

an end to the seisin of the survivor, because The defendants insist that, under the deed his or her original seisin was of the whole, to Hutchens and wife, they were seised of and not of part, of the estate. an estate by the entireties, and therefore

[2] It is immaterial that the deed in the that no estate in the land passed to her heirs present case did not on its face name the at law upon the death of Mrs. Hutchens.

grantees as husband and wife; nor is it maTo support complainants' theory, the first terial that we find in the deed no words insistence advanced is that the deed on its used to indicate a purpose in the grantor face did not purport, and did not convey, an to create an estate by the entireties; nor estate by the entireties to the grantees.

So a purpose in the grantees that such an estate far as the provisions of the deed need be should be conferred upon them. The estate, noticed, they were as follows:

by the entireties, upon the execution of the “This indenture, made this 22d day of Sep- deed, depended on the unity of the husband tember, A. D. 1897, between Rufus M. Bennett, and wife, under the common law. of Knox county, in the state of Tennessee, of “If an estate be given to a man and his wife the wrst part, and Darcus Hutchens and Jeffer they are neither properly joint tenants nor tenson Hutchens, of the same county and state, of ants in common; for husband and wife being the second part, witnesseth.”

considered as one person in law, they cannot take Then follows a recital that the parties of the estate by moieties but both are seized of the the first part, for and in consideration of quence of which is that neither the husband nor

entirety, per tout, et non per my; the consethe sum of $1 in hand paid by the parties of the wife can dispose of any part without the assent of the other, but the whole must remain to [4] The final insistence offered by comthe survivor.” 2 Bla. Com. 182. "The authorities agree that the same words the published Acts of 1913 was to abrogate

plainants is that the effect of chapter 26 of of conveyance which would make two other persons joint tenants will make a husband and the fundamental principles of the common wife tenants of the entirety, so that neither can law under which, by virtue of the marriage, sever the jointure, but the whole must accrue husband and wife became a legal unity, and to the survivor.'” Cole Manufacturing Co. v. Collier, 95 Tenn. (11 Pick.) 116, 117, 31 s. w. their argument is that, such being the effect 1000, 30 L. R. A. 315, 49 Ám. St. Rep. 921. of the act, the result was to destroy all ex

"The properties of a joint estate are derived isting estates by entireties, including that interest, the unity of title, the unity of time, and held by Hutchens and wife in the land sued the unity of possession; or, in other words, joint for herein. The bill avers that the wife, Mrs. tenants have one and the same interest, accru- Hutchens, died after the act took effect. ing by one and the same conveyance, commenc- We have had occasion, during the present ing at one and the same time, and beld by one term, to consider this act in the case of and the same undivided possession." 2 Bla. Com. 180.

Sarah Lillienkamp v. W. T. Rippetoe, 179 S. Generally, on the same subject, see the fol- / W. 628, Knox Law, and an opinion for publilowing of our cases: Taul v. Campbell, 15 cation was handed down. The conclusion we Tenn. (7 Yerg.) 319, 27 Am. Dec. 508; Ames reached in that case was not in accord with v. Norman, 36 Tenn. (4 Sneed) 683, 70 Am. the present insistence of the complainants. Dec. 269; Johnson v. Lusk, 46 Tenn. (6 Cold.)

The act does not, by its terms, purport to 114, 98 Am. Dec. 445; Berrigan v. Fleming, abrogate estates held by entireties at the time 70 Tenn. (2 Lea) 271; Shields v. Netherland, of its passage, and created by contract an73 Tenn. (5 Lea) 193; McRoberts v. Copeland, tedating its passage. If the Legislature had 85 Tenn. (1 Pick.) 211, 2 S. W. 33; Jackson, intended the act to have such effect, we must Orr & Co. v. Shelton, 89 Tenn. (5 Pick.) 82, assume that it would either in plain terms 16 S. W. 142, 12 L. R. A. 514; Hopson v. have so declared, or that it would have emFowlkes, 92 Tenn. (8 Pick.) 697, 23 S. W. 55, ployed terms from the use of which such ef23 L. R. A. 805, 36 Am. St. Rep. 120; Cham- fect would necessarily result. In the abbers v. Chambers, 92 Tenn. (8 Pick.) 707, 23 sence of such declaration or clear implication S. W. 67; Walker v. Bobbitt, 114 Tenn. (6 that the act should have such effect, we are Cates) 700, 88 S. W. 327; Beddingfield v. not called upon to express any opinion based Estill & Newman, 118 Tenn. (10 Cates) 39, on the hypothesis of the presence of such a 100 S. W. 108, 9 L. R. A. (N. S.) 640, 11 Ann. legislative purpose; nor do we express any Cas. 904. For general authority to the same opinion as to what the effect of the act would effect, see Hiles v. Fisher, 144 N. Y. 306, 39 be on the estate conveyed to husband and N. E. 337, 30 L R. A. 305, and note, 43 Am. wife by deed executed after the act became St. Rep. 762; Jordan v. Reynolds, 105 md. effective. The rule in this state is : 288, 66 Atl. 37, 9 L. R. A. (N. S.) 1026, and

“That a statute will not be construed to alter

the common law further than the act expressly note, 121 Am. St. Rep. 578, 12 Ann. Cas. 51; declares, or than is necessarily implied from the Pegg v. Pegg, 165 Mich. 228, 130 N. W. 617, fact that it covers the whole subject matter.” 33 L. R. A. (N. S.) 166, and note, Ann. Cas. State v. Cooper, 120 Tenn. (12 Cates) 549, 113 1912C, 925; In re Meyer, 232 Pa. 89, 81 Atl. S. W. 1048, 15' Ann. Cas. 1116 and authorities

cited; Sarah Lillienkamp v. W. T. Rippetoe, 145, 36 L. R. A. (N. S.) 205, and note, Ann. supra, and cases cited; Wilson v. Frost, 186 Cas. 1912C, 1240; Wilson v. Frost, 186 Mo. Mo. 311, 85 S. W. 375, 105 Am. St. Rep. 619, 311, 85 S. W. 375, 105 Am. St. Rep. 619, 22 Ann. Čas. 557, and note. Ann. Cas. 557, and note.

Examination of the cases cited in the note [3] Complainants' second insistence is that last above will disclose the weight of authorestates by the entirety were abolished by our ity to be in support of our view of the effect Acts 1784, c. 22, $ 6. See section 2010, Code of the act of 1913. 1858, and section 3677, Shannon's Code, The three questions we have discussed diswhich legislation is as follows:

pose of all of the assignments of error made "In all estates, real and personal, held in joint by complainants, and it results that the detenancy, the part or share of any joint tenant cree of the chancellor will be affirmed, at the dying shall not descend or go to the surviving tenant or tenants, but shall descend or be vest

complainants' cost. ed in the heirs, executors, or administrators, respectively, of the tenant so dying, in the same manner as estates held by tenancy in common.”

CITY OF MEMPHIS et al. v. STATE ex rel.

. . The view now insisted on by complainants

RYALS. as the effect of the above legislation was put (Supreme Court of Tennessee. Oct. 23, 1915.) forward, but rejected, by our court in Taulli. CONSTITUTIONAL LAW Ow211 - CONSTRUCv. Campbell, supra, and other of our cases

TION. heretofore cited. We are urged to overrule Under Const. U. S., Amend. 14, prohibiting those cases, but we decline to do so, both the denial to any person of the equal protection upon the ground that upon them now depend iting the imprisonment or execution of any per

of the law, and Const. Tenn. art. 1, § 8, prohibwell-settled rules of property, and because in son, or depriving him of life, liberty, or property, our opinion their reasoning is sound.

except by judgment of his peers or the law of the

.

.

land, and article 11, § 8, forbidding class legisla- | places, may prescribe the conditions with which tion, the same rules will be applied to classifica- jitneys, being common carriers, must comply in tions therein as to the classifications made in order to operate. legislative enactments, so that the basis for a

[Ed. Note. For other cases, see Municipal classification must be natural, and not arbitrary Corporations, Cent. Dig. 88 1509–1513; Dec. or capricious, and must rest on some substantial Dig. 703.) difference; but the classification is not invalid merely because it does not depend on scientific

Appeal from Circuit Court, Shelby Counor marked differences.

ty; A. B. Pittman, Judge. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. $ 678; Dec. Dig. Ow211.]

Habeas corpus by the State of Tennessee, 2. CARRIERS Om 2-CONSTITUTIONAL LAW Oine on the relation of S. B. Ryals, against the

208, 241-CLASS LEGISLATION-REGULATION City of Memphis and others. From an orOF JITNEYS-PRIVATE CONVEYANCES.

der releasing the relator, defendants appeal. Acts 1915, c. 60, regulating jitneys as com- Reversed and remanded. mon carriers, and prohibiting their operation, except upon prescribed conditions, does not make an C. M. Bryan and Leo Goodman, both of arbitrary classification between jitneys and pri- Memphis, and Chas. T. Cates, of Maryville, vately owned automobiles, since the uses and character of operation of the two classes are distinct. for appellants. Caruthers Ewing, of Mem

[Ed. Note.-For other cases, see Carriers, phis, for appellee. Cent. Dig. 88 4, 5; Dec. Dig. 2; Constitutional Law, Cent. Dig. SS 649–677, 700, 701; Dec. Dig. en 208, 241.)

WILLIAMS, J. Ryals, as relator, sued

out a writ of habeas corpus to effect his re3. CONSTITUTIONAL LAW Om 208, 241–CLASS LEGISLATION REGULATING

JITNEYS

lease from the custody of the chief of poSTREET CARS.

lice of the city of Memphis; he having been Acts 1915, c. 60, regulating jitneys as com- arrested for a violation of Acts 1915, c. 60. mon carriers, and prohibiting

their operation, ex- The circuit judge released the relator, holdcept upon prescribed conditions, does not make an arbitrary classification between jitney busses and ing that act void, because violative of the street railway cars, since the jitney runs upon no constitutional provisions that inhibit arbitratrack, and is less substantial and more dangerous than the street car, thus presenting essential ry class legislation. Const. Tenn. art. 1, § 8, differences, properly the subject of classification. and article 11, § 8; fourteenth amendment

[Ed. Note.-For other cases, see Constitution of the Constitution of the. United States. al Law, Cent. Dig. 88 649-677, 700, 701 ; Dec. • The act thus attacked was evidently passDig. Om 208, 241.)

ed for the regulation of a class of motor 4. CONSTITUTIONAL LAW 208, 241-CLASS vehicles recently brought into service in the LEGISLATION - REGULATION OF JITNEYS TAXICABS.

principal cities of the state, commonly known Acts 1915, c. 60, regulating jitneys as com as “jitneys.” mon carriers, and prohibiting their operation, ex- By section 1 of the act it is provided that cept upon described conditions, does not make an arbitrary classification between jitneys and any person, firm, or corporation operating taxicabs, since taxicabs are for hire at a fare for hire any public conveyance propelled by proportioned to the length of the trips of the steam, gasoline, or other power, "for the purseveral passengers, without regard to route, pose of affording a means of street transwhile the jitney carries passengers upon a desig- portation similar to that ordinarily affordnated route, and the investments

in the two ed by street railways (but not operated upon classes of machines are widely different.

[Ed. Note. For other cases, see Constitution-fixed tracks) by indiscriminately accepting al Law, Cent. Dig. $$ 649–677, 700, 701; Dec. and discharging such persons as may offer Dig. Om 208, 241.)

themselves for transportation," is declared a 5. CARRIERS 4 – CARRIERS OF PERSONS

Onw CARRIERS OF PERSONS —common carrier, and the business of all such "JITNEYS.”

carriers is declared to be a privilege. A "jitney" is a self-propelled vehicle, other

Section 2 of the act makes unlawful the than a street car, traversing the public streets between certain definite points or termini, and, use and occupation of any street or alley as a common carrier, conveying passengers at a, or other public place in any incorporated five-cent or some small fare, between such ter- city or town without first obtaining from such mini and intermediate points, and so held out, city or town a permit or license by ordinance advertised, or announced.

[Ed. Note. For other cases, see Carriers, Cent. giving the right to so use or occupy such Dig. $$ 1, 462-478; Dec. Dig. Om 4.]

street, alley or other public place

the per6. CONSTITUTIONAL LAW C208-CLASS LEG. mit or license to embody “such routes, terms ISLATION-ARBITRARY CLASSIFICATION. and conditions a's such city or town may elect

Under the provisions of the Constitution to impose: Provided, however, that no such prohibiting class legislation, it is not sufficient permit or license shall be granted which to invalidate a statute merely to show points of similarity in the thing classified, and the does not require the execution and filing of a thing excluded from the classification; but it bond," as provided by section 3. must be shown that the classification is unrea- Section 3 provides that before such comsonable and impracticable.

mon carrier may conduct his business he [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. $8 649-677; Dec. Dig. 208.) must execute a bond, with good and suffi

cient surety or sureties, in no case to ex7. MUNICIPAL CORPORATIONS Ow703–STREETS ceed $5,000 for each car operated, condi-LEGISLATIVE CONTROL-JITNEYS.

The Legislature, being endowed with police tioned that such common carrier will pay power to regulate the use of streets in public any damage that may be adjudged finally against such carrier as compensation for loss ry." Motlow v. State, 125 Tenn. 547, 145 S. of life or injury to person or property in-W. 177, following Lindsley v. National Carbonic flicted by such carrier or caused by his neg. Ed. 369, Ann. Cas. 1912C, 160.

Gas Co., 220 U. S. 61, 31 Sup. Ct. 337, 55 L. ligence. Section 4 makes it unlawful for such com

Having these principles in mind for guidmon carrier to use or occupy any street or ance, we may conceive that, from the experialley or other public place without the per- automobiles at the time of the enactment of

ence developed by the operation of jitney mit or license aforesaid or without first executing and filing the bond as required by ed the provision for a bond to be necessary be

the regulatory statute, the Legislature deemsection 3.

The subsequent sections need not be out cause it realized that by reason of the small lined, since the provision requiring the exe

fare charged by such operators the tendency cution of a bond is the only one inveighed would be for them to invest in cheap or secagainst by relator, charged as he was with ondhand machines, oftentimes fragile in the operation of a jitney automobile without character; that frequently the vehicle would having executed such bond.

not be owned outright, but only subject to a The circuit judge, after calling attention lien or by way of lease; that, by reason of in his opinion to the fact that the act does the limited size and carrying capacity of the not limit the condition of the bond to a conveyances, an increased congestion of the

a protection of the passengers of such a com- streets and public places would follow, as mon carrier, but includes the payment of well as an overtaxing of the capacity of the damages by reason of negligence resulting in given conveyance; that they would have no injury to pedestrians or to property gen- fixed track upon which to run, moving at erally, expressed the view that the provi- will over the entire street surface, and in sion of the statute might be upheld if the their crossing over and stopping along the bond required had to do only with the pro- curb between crossings, or at street crossings, tection of passengers, and further said:

danger to persons and property would be "This act imposes upon the carrier burdens not augmented; that, by reason of the competionly in his character of common carrier, but tion of the many engaged in the business, also burdens in his capacity of an ordinary user frequent contests between the operators for of the streets. Using the same kind of vehicle, points of vantage in the streets would folwith the same motor power, in identically the same manner as private operators of automo- low; that there was a tendency fraught with biles, he is required to give a bond to protect danger in the many so engaged seeking the other users of the streets against his negligence. streets of heaviest travel for passengers, thus No such requirement is made of any other per- leading to congestion, as well as in hasty efson using similar vehicles.”

forts made to head off and divert those waitThe act was therefore held invalid, with result that the city has appealed to this ing on the curb as offerers for passage on result that the city has appealed to this street railways; that the desire and necescourt.

[1] Under the provisions of the state and sity to collect many small fares would tempt national Constitutions, above referred to, running; that by reason of receiving and

operators to indulge in swift and careless the same rules are applied as to the valid- discharging passengers at short, unscheduled ity of classifications made in legislative enactments. When an effort is thus made traffic and an endangering of other vehicles

intervals, there would be an interruption of to distinguish and classify as between citi- in the streets; that by reason of the small zens, the basis therefor must be natural, investment required many who are financialand not arbitrary or capricious. The classification must rest on some substantial dif- ly irresponsible would embark in the busiference between the situation of the class ness; that the collection of damages from the created and other persons to whom it does operators would be difficult, and in many in

stances impossible. not apply. State ex rel. v. Schlitz Brewing Co., 104 Tenn. 730, 59 S. W. 1033, 78 Am. St. made by the circuit judge, and which led him

[2] We come now to the test of the law Rep. 941, and cases cited.

to denounce the classification the inclusion However, classification for such purposes of jitney automobiles and the exclusion of is not invalid because not depending on sci

We entific or marked differences in things and automobiles privately owned and used. persons, or in their relations. It suffices if think that such a classification is easily susit is practical, and it is not reviewable un

tainable by reason of the applicability of

many of the considerations above enumeratless palpably arbitrary. Orient Ins. Co. v. Daggs, 172 U. S. 562, 19 Sup. Ct. 281, 43 L has but a single destination, at which it

ed. The privately owned vehicle ordinarily Ed. 552, cited with approval in State ex rel. v. Schlitz Brewing Co., supra.

comes to rest. Its use is not urged to or "When the classification in such a law is call towards the limit in order to the reaping of ed in question, if any state of facts reasonably profits. We are unable to see merit in the can be conceived that would sustain it, the ex- distinction taken by the circuit judge, when istence of that state of facts at the time the law he intimated the opinion that a classificawas enacted must be assumed. One who as- tion of the jitney from privately used autosails the classification in such a law must carry the hurden of showing that it does not rest upon mobiles might be sustained only so far as

was concerned. Most of the dangers that justice of the law might be demonstrated; but surround such passengers in a substantial something more must be considered. Not only sense beset also the users of the street.

the final purpose of the law must be considered,

but the means of its administration the ways it [3] Contrasting the jitney with street rail- may be defeated. Legislation, to be practical way cars, to ascertain whether there be ar- and efficient, must regard this special purpose bitrary classification: The street railway, by New York, 201 U. s. 633, 26 Sup. Ct. 554, 50 :

as well as the ultimate purpose. St. John v. reason of its having tracks at definite places L. Ed. 896, 5 Ann. Cas. 909, affirming 178 N. Y. assigned it by municipal authority, on which 617, 70 N. E. 1104. tracks its traffic must move, is less liable to The same court upheld a classification of cause injury; and the substantial nature of vehicles (in respect of their respective ownit cars, and particularly the fixity, perma- ers' rights to use the streets) by which adnency, and great cost of its roadbed, afford vertising wagons or busses were excluded, an anchored indemnity in respect of its lia- while ordinary business wagons, when enbility for negligence. Other marks for dif- gaged in the usual business of the owner, ferentiation, appearing in the above outline and not used merely or mainly for adverof considerations imputable to the legisla- tising, were permitted to use the streets tive mind, need not be reiterated.

while exhibiting business notices. Fifth Ave. [4] Assuming for test purposes (without Coach Co. v. New York, 221 U. S. 467, 31 meaning to decide or to intimate a decision) Sup. Ct. 709, 55 L. Ed. 816, affirming 194 that taxicabs are common carriers, and that N. Y. 19, 86 N. E. 824, 21 L. R. A. (N. S.) they are not included within the terms of 744, 16 Ann. Cas. 695. See, also, Provident the statute, does their exclusion operate to Institution v. Malone, 221 U. S. 660, 31 Sup. make the classification unreasonable and ar- ct. 661, 55 L. Ed. 899, 34 L. R. A. (N. S.) bitrary?

1129. The word "taxicab" is one of recent coin

[5] The word "jitney” we think may be age, to describe a motor-driven conveyance defined to be a self-propelled vehicle, other that performs a service similar to the cab or than a street car, traversing the public hackney carriage, held for hire at designat- streets between certain definite points or ed places at a fare proportioned to the length termini, and as a common carrier conveying of the trips of the several passengers, who are passengers at a five-cent or some small fare, taken to be carried to destinations without between such termini and intermediate regard to any route adopted or uniformly points, and so held out, advertised, or anconformed to by the operator. The jitney nounced. holds itself out to accommodate persons who

In the case of Ex parte Cardinal (Cal.) purpose traveling along a distinct route chos- 150 Pac. 348, where was involved an ordien by the operator. Operators of taxicabs

nance substantially so defining a jitney, and have not the temptation or necessity, we may requiring the owner, before operating such assume, of choosing the most traveled streets, machine, to obtain a permit, and to give a since those less traveled afford them better bond or provide a policy of insurance to proopportunities to serve the object their own- tect those injured, the court upheld the orers have in view. It may be that a larger dinance as not creating an arbitrary class, investment is ordinarily required to enter the and said: taxicab business than the other, and that

"It is manifest that as to automobiles there the conveyances would be less in number on may be circumstances existing, by reason of the this account, as well as because of the great manner and character of their use on the streets, er fare charged, not to mention other differ- that will warrant, in the interest of the safety ences to be drawn from the above summary. for a particular purpose and in a particular way.

of the public, special regulations as to those used In New York an ordinance regulating the *** We entertain no doubt whatever as to conduct of the business of public hackmen the power of the board of supervisors of the city has been held not to be discriminatory, be- and county of San Francisco to make special cause it applied only to those engaged in such vehicles as are described in section 1 of the

regulations relating to the use on the streets of transporting passengers for hire who solicit ordinance, and therein termed jitney busses. It business on the streets, or because taximeters is argued that the charge of ten cents or less are required to be attached to motor-driven for passage is no proper criterion by which to vehicles only. The Taxicab Cases, 82 Misc. classify for such a purpose as that of this ordi

nance. It may well be, however, that the special Rep. 94, 143 N. Y. Supp. 279, affirmed under danger to the public sought to be guarded against style Yellow Taxicab Co. v. Gaynor, 159 App. is confined to just the class of vehicles described, Div. 893, 144 N. Y. Supp. 299.

viz., automobiles used on the public streets for

the carriage of passengers at a very small charge. The Supreme Court of the United States * * * It is the 'low fare automobile for the has held that the inclusion of producing, and carriage of passengers on the streets of San the exclusion of nonproducing, venders of Francisco that the ordinance is designed to regumilk in legislation was valid, the court say, whether there is sufficient distinction between

late. The real question in this connection is ing:

the operation on the public streets of these “A picture is exhibited of producing and non- 'low charge automobiles for the carriage of pasproducing venders (of milk] selling milk side by sengers and the operation of self-propelled motor side; the latter, it may be, a purchaser from the cars on which a much higher charge is made, former; the act of one permitted, the act of the to warrant the imposition of the special regulaother prohibited or penalized. If we could look tions made by this ordinance. It is a matter of no farther than the mere act of selling, the in- common knowledge on the part of those familiar