152 N.E. 828 | Ind. | 1926
This was an action to enjoin the city of Princeton and its officers from enforcing certain provisions of a city ordinance alleged to be void. The ordinance purported to impose a license fee of from $6 to $25 per calendar year on all "motor trucks, motor wagons and other motor driven vehicles used for commercial purposes" on or over the streets of the city, the amount of the fee depending upon the capacity of such vehicle, as well as upon "all funeral cars, ambulances, hearses," etc., after having first declared it to be, "unlawful * * * to use and operate for commercial purposes upon and over the public streets of the city of Princeton, Indiana, any motor truck or other motor driven vehicle * * * or other vehicle of the kind and character hereinafter designated without taking out and having a license therefor as required by this *150 ordinance." It provided that every owner of any vehicle of the kinds designated should obtain a license upon payment of the fee required, and, before using the vehicle, should, "attach thereto in a conspicuous place the license plate so furnished by the city clerk, and keep the same attached to such vehicle at all times during the period for which the same was issued." And it further provided that, "any person using or operating any vehicle of any kind described in this ordinance, who shall fail to take out such license, or who shall violate any of the provisions of the ordinance shall be fined in any sum not less than $5.00 and not more than $50.00." Section 8 provided that, "Every license issued under and by virtue of authority of this ordinance shall be subject to revocation by the mayor of said city." It will be observed that by its terms this ordinance applied equally to all motor trucks and motor driven vehicles used for commercial purposes upon and over the streets of the city, without reference to where they were owned or the manner in which they were operated on and over such streets, or whether they were so operated daily or only once in a year.
The complaint, in addition to setting out the ordinance and alleging that it was void, averred that the plaintiffs were citizens and resident taxpayers of the city of Princeton, Indiana, which was alleged to be a city of the fifth class; that the other defendants were the mayor, city marshal and city attorney of said city; that plaintiffs were engaged in the general undertaking business, and owned and operated motor driven funeral cars, ambulances and hearses which they drove upon, along and over the public streets of the city of Princeton for commercial purposes in the conduct of their business, but which they did not use for public hire; and that plaintiffs had obtained certificates of title and paid in full the registration fees to the secretary of *151 state for the current year on each of their vehicles which the general law of the State of Indiana required to be so paid. They further alleged that within the city of Princeton were a hundred or more other persons who owned and operated motor driven vehicles for commercial purposes upon the public streets of said city, but did not operate them for public hire, and also that more than a hundred other persons resided outside said city who did the same. That plaintiffs and all the other said owners of motor driven commercial vehicles operated on the streets of said city, but not operated thereon for public hire, had refused and would continue to refuse to pay license fees or to take out licenses under the ordinance for their respective vehicles. But that the defendants and each of them were threatening to and, unless restrained by an order of the court, would require plaintiffs and all the other said persons to take out and pay for licenses under the ordinance, or would prosecute any and all of them who might fail to do so. And that by reason of the alleged invalidity of the ordinance, such prosecution would result in large sums accruing for costs and expenses of prosecution for which the city would become liable and which it would be required to pay, to the great injury of plaintiffs and all the other taxpayers.
A demurrer to the complaint for the alleged reason that it did not state facts sufficient to constitute a cause of action was sustained by the circuit court, and sustaining that demurrer is assigned as error.
Appellant insists that the ordinance was void because of the provision that, "Every license issued under and by virtue of authority of this ordinance shall be subject to revocation 1. by the mayor of said city." But we think this meant nothing more than that the mayor might revoke such a license for the causes and in the manner provided by law. And the act concerning *152 municipal corporations expressly confers upon the mayor of any city or the president of the board of trustees of any town authority to revoke or suspend any license issued under the provisions of a city ordinance whenever the licensee shall have violated the terms or conditions of such license or of the law or ordinance under which the license was granted. § 11092 Burns 1926, § 8893 Burns 1914, § 239, ch. 129, Acts 1905 p. 219, 386. And also provides that, "he shall, upon reasonable notice of not less than three days to the person complained of, hear any complaint against any person to whom a license has been issued, and may issue subpoenas and compel the attendance of witnesses to testify on such hearing, may administer oaths to such witnesses, and require them to testify. The rules of practice and procedure in force in trials in the city court of such city, so far as applicable, including the right to appear by counsel and to compel the attendance of witnesses for or against the persons complained of, shall apply to such proceedings before the mayor. Upon the hearing, if it shall be found that the person complained of has wilfully violated any of the terms or conditions of his license, or has wilfully done, authorized or permitted to be done any act in violation of the law or the ordinance of such city relating to the business or place of business licensed, the mayor shall revoke or suspend such license. * * *" § 10295, cl. 8, Burns 1926, § 8682 Burns 1914, § 80, ch. 129, Acts 1905 p. 219, 226. When understood as authorizing the mayor to revoke any license issued thereunder for the causes and in the manner provided by these statutes, we do not think the section making a license issued under authority of this ordinance subject to revocation by the mayor is open to the objections urged by counsel.
The validity or invalidity of the ordinance in other particulars complained of depends upon the proper construction *153
of certain sections of the statutes then in force which, so 2. far as here involved, read as follows: "The common council of every city shall have power to enact ordinances for the following purposes: * * * Thirty-second. To regulate, tax and license coaches, hacks, drays, automobiles and all other vehicles. * * *" § 10284 Burns 1926, § 8655 Burns 1914, § 53, ch. 129, Acts 1905 p. 219 (252). "No owner of a motor vehicle, except motor trucks and motor driven commercial vehicles who shall have obtained a certificate from the secretary of state and paid registration fees as hereinbefore provided, shall be required to pay any tax or license fee whatsoever or to obtain any other license or permit to use or operate the same, nor shall any owner be required to display upon his motor vehicle or motor bicycle any other number than that issued by the secretary of state, or excluded or prohibited from or limited in the free use of his said motor vehicle or motor bicycle, nor limited as to speed upon any public highway or other public place at any time when the same is or may hereafter be open to the use of persons having or using other vehicles, nor be required to comply with other provisions or conditions as to the use of said motor vehicles or motor bicycles except as in this act provided * * * Except as in this act provided, no city or town or other municipality shall have power to make any ordinance, by-laws or resolution limiting or restricting the use or speed of motor vehicles or motor bicycles and no ordinance, by-law or resolution heretofore or hereafter made by any city or town or other municipal corporation within the state, by whatever name known or designated, in respect to or limiting the use of motor vehicles or motor bicycles shall have any force, effect or validity, and they are hereby declared to be of no validity or effect: Provided, that nothing in this act *154
contained shall be construed as affecting the power of municipal corporations to make and enforce ordinances, rules and regulations affecting motor trucks and motor driven commercial vehicles which are used within their limits for public hire, or from making and enforcing reasonable traffic and other regulations except as to rates of speed not inconsistent with the provisions of this act." § 10476d Burns 1914, § 17, ch. 300, Acts 1913 p. 779, 789. Appellees contend that the exception in the foregoing provision that, "No owner of a motor vehicle, except motor trucks and motor driven commercial vehicles who shall have obtained a certificate from the secretary of state and paid registration fees as herein provided, shall be required to pay any tax or license fee whatsoever or to obtain any other license or permit to use or operate the same," etc., left to the city full authority to tax and license all motor trucks and motor driven commercial vehicles, under the authority "to regulate, tax and license * * * automobiles and all other vehicles," conferred by § 10284, supra. As it necessarily follows that if the city of Princeton could enforce such an ordinance against nonresidents of the city, so may any other municipal corporation, of which there are several within Gibson county, and hundreds throughout the State of Indiana, the practical effect of such a construction would be that if measures of this kind were to be adopted by all or many of those cities and towns, a farmer whose way to market at Evansville, Terre Haute, Chicago or elsewhere lies through such a town or city, would be required to pay tribute to repair its streets, on the basis of using them for an entire year, even though he might pass over them but once. And farmers, gardeners and stockraisers living in the different counties might be compelled to purchase licenses in two, three or half a dozen cities and towns in order to drive along the state *155
highway to market in a city twenty-five or thirty miles away. Thus the demand for license fees might operate as a prohibition against carrying one's own produce in an automobile or truck along a state highway beyond the nearest town. What Princeton could do in this respect, any other Indiana municipal corporation could do, and such a construction would give every town the right to demand from the driver of a truck or automobile used for any business purpose an entrance fee as a condition of using the public highway leading through it, even though the truck or automobile be driven there only once in the course of a year.Pegg v. City of Columbus (1909),
As we have seen, the statute provided that, "except as in this act provided, no city or town or other municipality shall have power to make any ordinance, by-law or resolution 3, 4. limiting or restricting the use or speed of motor vehicles or motor bicycles," and declared that no ordinance, by-law or resolution which does so shall be valid. And the only restriction upon or exception to this provision by which all such ordinances were made invalid was the proviso that, "Ordinances, rules and regulations affecting motor trucks and motor driven commercial vehicles which are used within their limits for public hire," or which constitute mere traffic regulations, shall not be deemed within the provisions of the act. § 10476d, supra. This was a clear expression of the legislative will that no ordinance limiting or restricting the use of motor vehicles without first obtaining a license and paying a *156 tax should be valid as applied to any such motor vehicles except "motor trucks and motor driven commercial vehicles which are used within their limits for public hire." Therefore, the ordinance in question was invalid as applied to the vehicles owned by plaintiffs and by the other persons on whose behalf they brought suit, and the demurrer to the complaint should have been overruled.
We have not considered and do not decide the question whether or not a funeral car or hearse used in any particular manner, for the use of which a charge is made, does or does not constitute a vehicle used "for public hire," within the meaning of the statute. It is expressly alleged in the complaint and admitted by the demurrer that plaintiffs' vehicles on which they refused to take out licenses were not used for public hire. And no question is before the court as to whether or not the real facts with regard to the use which they make of their hearse or other vehicles is different from what they have alleged.
The judgment is reversed, with directions to overrule the demurrer to the complaint.
