128 Iowa 108 | Iowa | 1905
The defendant owns and maintains a barn, which is his own property, used exclusively by defendant for the care, feeding, and stabling of his horses, storing feed therefor, and the housing of wagons. That defendant also owns and maintains an office, where he receives orders for the employment of his wagons. That said wagon No. 11, when not engaged in loading, hauling, or unloading freight or goods to or from a job of work, does not stand or remain upon the streets or public places of the city of Des Moines., but uses the same wholly and exclusively as a highway in passing from place to place in said city,.and loading and unloading goods, and in no other manner. That said wagon No. 11 does not solicit custom upon the streets or public places, of said city, and Custom 'is not solicited therefor upon -the streets., or in or about hotels, theaters, depots, trains, or other public places of said city. That defendant sends said wagon No. 11 from his said barn to answer and fill calls and orders therefor received at his said office, and not otherwise, and, when said wagon is not so engaged, it stands in the private barn of defendant. That said wagon is kept and used only as herein stated, and in no other manner whatever. That defendant owns and operates nine wagons in the same manner as wagon No. 11, including in said number the said wagon No. 11.
Every person, firm or corporation keeping and using any- cart, wagon, street sprinklers, dray, coach, hack, omnibus, hackney wagon, herdic, express wagon or other conveyance for carrying persons or property for hire, shall pay a license fee or tax and procure a license, as herein provided, and no person shall’ drive or use or cause to be driven, or used, any such conveyance or vehicle on the streets of the city of Des Moines, in carrying persons or property for hire, without paying such license fee or tax and procuring such license. . . . This ordinance shall not be construed as applying to carriages and other vehicles kept and used strictly and entirely in ordinary livery business, and which do not stand or remain upon the streets and public places for the purpose of soliciting custom, and for which - custom is not solicited upon the streets or in or about hotels, theaters, depots, trains or other public places.
Section 754: of the Code gives cities the power to “ regulate, license and tax all carts, wagons, street sprinklers, drays, coaches, hacks, omnibuses, and every description of conveyance kept for hire.” The vehicles specifically designated as subject to a license and tax by the ordinance are practically the same as those designated by the statute, but it will be noticed that the ordinance does not follow the precise language of the statute in referring to other vehicles, for it provides that all other conveyances kept and used “ for conveying persons or 'property for hire shall ” pay the tax, while the general language of the statute is that a license and tax may be imposed on “ every description of conveyance kept for hire.” The appellee contends that the statute provides only for a tax on vehicles which are let out or rented, and that the ordinance goes beyond the power thus granted, by requiring a tax on such as are used “ for carrying persons or property ” while the vehicle
If all who are under the same conditions are brought within the classification, there can be no just complaint; hence the precise question for determination is whether carriages and other vehicles used strictly and entirely in the ordinary livery business are under the same conditions as drays and other vehicles used for the transportation of persons and, property for hire. A livery stable is ordinarily a place where horses and carriages are kept to be let for hire, and, in the ordinary conduct of the business, the horse or vehicle so let- is in charge and under the control of -the hirer or his representatives. State of Minnesota v. Robinson, 42 Minn. 107 (43 N. W. Rep. 833, 6 L. R. A. 339.) In City of Burlington v. Unterkircher, 99 Iowa, 401, in discussing, an ordinance of the city providing for the licensing, of vehicles used in carrying passengers,-we said:
A passenger is not one who drives about a city for mere pastime only, in a vehicle of which he has absolute control. . . . The section quoted provides charges for
The statute gives municipalities the power to license and tax vehicles using its streets. When the fee required is only such as will cover the expense of enforcing the regulation as to a particular calling, it is under the police power of the state; but, when the-fee is larger than is necessary for such purpose, and is exacted for the purpose of revenue, the license is issued under the taxing power of the state, and is generally held valid. Elliott on Boads & Streets,'section 454, and cases'cited; City of Terre Haute v. Kersey, 159 Ind. 300 (64 N. E. Rep. 469, 95 Am. St. Rep. 298). Under the-statute, cities are required to keep their streets in repair, and it • cannot be doubted that the Legislature, in the exercise of its discretion, has the power to authorize them to exact from those who use the streets with vehicles some compensation therefor (Elliott, supra, and section 71) ; and, if this be true, it is but reasonable and just that such use be classified, and that those who habitually use the streets for the transportation of heavy loads shall pay a reasonable license, or tax for such use; and, if the municipality may graduate the scale of fees charged, it may reasonably exempt therefrom all vehicles, the ordinary use of which will not materially wear its streets or obstruct the free use thereof. City of Burlington v. Unterkircher, supra; Brooklyn v. Breslin, 57 N. Y. 591; Gartside v. East St. Louis, 43 Ill. 47; St. Louis v. Green, 70 Mo. 562; Nagle v. Augusta, 5 Ga. 546; State of Minnesota v. Robinson, supra; State v. Justus, 91 Minn. 447 (98 N. W. Rep. 325, 64 L. R. A. 510); City of Terre Haute v. Kersey, supra.