235 Mo. 503 | Mo. | 1911
Lead Opinion
— By an ordinance of the city of St. Louis, of date March 19, 1907, it was required that on every automobile operated in that city there be displayed, in a prescribed way, for the purpose of identification, the number' of its city license, the sections in question reading as follows:-
“Section 1553. That hereafter, all automobiles operated in the city of St. Louis, shall display identification numbers as herein provided. Such numbers shall be not less than five inches high, and the line marking the numbers shall be white and be five-eighths of an inch wide at every point and such numbers shall be placed at least three-fourths of an inch apart.
“Section 1554. All such numbers shall be painted on black or blue signs or placques of wood, metal or leather, or directly on the machine itself, provided the machine be painted black at this particular place; and such signs or placques shall be so attached to the machine that they will not sway in any direction independently of the motion of such machine. The numbers shall be of arabic numerals. The numbers to be displayed on said automobiles as herein provided, shall correspond with the number of the operating license tag or plate issued to the owner of said automobile, providing further that a license tag or plate bearing numbers and attached to the machine and lighted at night as herein provided may be used as a full compliance with the provisions of this ordinance.
“Section 1555. Such numbers shall be displayed on the rear of the machine, in plain sight as nearly as possible in the middle of the machine, and shall be low enough so as not to be hidden by the hood or any other obstruction on the machine.”
' In August, 1907, appellant violated this ordinance and subsequent proceedings resulted in the judgment from which this appeal was taken.
The case was heard below on an agreed statement of facts which discloses that on the automobile which
Except in matters of purely local and municipal concern (St. Louis v. Dorr, 145 Mo. l. c. 476 et seq.; St. Louis v. Meyer, 185 Mo. l. c. 597) the regulation of which has been committed to the municipality, the ordinances of the city of St. Louis, in instances in which they are repugnant to the general laws of the State, must yield.
This conclusion is supported by constitutional, statutory and charter provisions (Secs. 23, 25, Art. 9, Const.; See. 9582, R. S. 1909; Sec. 26, Art. 3, Charter of St. Louis), the common law (Tiedeman on Mun. Corp. sec. 146) and numerous decisions of our courts (St. Louis v. Meyer, supra; St. Louis v. Klausmeier, 213 Mo. l. c. 125), and is not open to question.
It is not necessary to delimit the field within which the Municipal Assembly of the city of St. Louis may exert its power, freed from the restraint of general laws, to legislate in matters of purely local and municipal concern, but it will suffice to say that the subject-matter of the ordinance in question is clearly one with reference to which the State Legislature has the power to enact a general law (City of St. Louis v. Meyer, supra; City of St. Louis v. King, 226 Mo. l. c. 348; City of Buffalo v. Lewis, 192 N. Y. 199 et seq.); and, consequently, the ordinance itself belongs to that class to the validity of which harmony with the laws of the State is requisite. The motor vehicle law, chapter 83, Revised Statutes 1909, was designed to apply uniformly throughout the State and to repeal all conflicting provisions whether found in statute or in ordinances. [City of Buffalo v. Lewis, supra.]
The sole question presented, therefore, is whether
In searching for the meaning of this section and proviso, conditions under the former law may be taken into consideration and the evils to be remedied taken into account. [City of Buffalo v. Lewis, supra.] Prior to the enactment of the section in question, the Act of 1903 (Laws 1903, p. 162) required that a license be procured in each county in which an automobile was operated (State v. Cobb, 113 Mo. App. 156), and that the number of such license be displayed upon the vehicle. It was necessary under the Act of 1903 to secure one hundred and fifteen licenses and display as many license numbers, if an automobile was operated in all parts of the State.
It is apparent that the chief purpose of identification numbers, such as the statute requires, is to enable officers of the law, or bystanders, when occasion requires, to identify these rapidly moving vehicles and prevent their owners or operators escaping, by flight, for which they are so well equipped, responsibility for such offenses against speed regulations as they may commit and for negligence of which they may be guilty.
The presence, on a rapidly moving automobile, of two or more identification numbers between which the observer must choose and which must themselves be “identified,” or distinguished from each other, could have no other effect than, in many instances, to defeat the very purpose for which such numbers are required to be attached to the vehicle.
Counsel for respondent contend that the proviso in question has reference solely to marks of identification under the state law and does not interfere with the right of the city to require an additional number to be displayed for the purpose of identifying the vehicle under the city ordinance. If the sole purpose of the required identification number was to proclaim that the state tax had been paid, the contention would be more plausible. But such is not the case. The size, position,’ manner in which they are required to be attached to the vehicle, and the marked difference in these respects between the numbers which motor vehicles are required to carry and those it is customary to require in the case of other vehicles, disclose that there was the additional reason, pointed out above, that these vehicles must often be identified while in swift flight over the streets and highways, to the end that speed regulations may be enforced and responsibility for negligence fixed. In fact, this is the principal purpose of the requirement. [People v. Schneider, 139 Mich. 675; Commonwealth v. Boyd, 188 Mass. 79.]
This salutary purpose would be practically defeated by putting upon the proviso the construction respondent asks, since the appearance of two numbers on the vehicle must necessarily tend to confuse. It was this very thing which the Legislature, in our opinion, intended to prevent. The ordinance in question shows on its face that it was not enacted merely to provide a means whereby the fact that the license tax had been
It appears, therefore, that the theory of the ordinance is not merely to provide a number to show that the tax is paid, but an additional number for some other purpose, for which it is lawful, under certain restrictions, to substitute the license tag. But it is not for a violation of any ordinance requiring simply the display of a license tag that appellant was convicted, but for a violation of an ordinance which attempted to require him to display an identification number in addition to that required by the statute.
This conviction cannot be upheld upon the ground that no license tag-was displayed, since the proceedings were not brought under an ordinance of that Mnd.
It is further argued in support of the validity of the ordinance, that since the city charter gives respondent the power to license and tax vehicles of all kinds, and since the motor vehicle law itself expressly authorizes all the cities of the State to exact a license tax from resident owners of motor vehicles, the power of respondent to require the display upon automobiles, motor-' cycles, etc., of the numbers of the licenses issued therefor is necessarily incident to the power to license and tax, and that, in fact, the power to license and tax cannot be exercised if the display of the city license number cannot be compelled.
Counsel do not suggest any particular in which the enforcement of the license ordinance would be aided by attaching a second mark of identification to each vehicle. It may be that such enforcement would be rendered more convenient by such double identification, but it is certainly not vitally necessary to the exercise of the power to impose a license. Mere considerations of convenience, however, cannot be permitted to thwart the legislative will, nor held to empower the municipality to exercise an authority expressly denied it by general law. [St. Louis v. King, 226 Mo. l. c. 345.]
No such means of identification are required in the cases of vehicles drawn by horses, which, though usually not moving so rapidly as motor vehicles yet move with sufficient rapidity to present equal difficuíty in the matter of identification for the purpose of ascertaining whether the vehicle tax, usually imposed, has-been paid.
The reasons given in support ■ of the contention mentioned would be well enough if addressed to the Legislature, which body has power to repeal and amend laws. We can do neither. Since the proviso in question is subject to but one construction, we cannot do otherwise than put that construction upon it.
It is worthy of note that the Act of 1911 (Laws 1911, pp. 324, 325) opens the way for the city to require motor vehicles to display an identification
The power of the city to require the payment of a license tax is not questioned by appellant, and it is unnecessary to further discuss the authorities on that subject to which counsel for the city have directed' our attention. Neither are those eases applicable in which, in the absence of a statutory prohibition, the right of the city to require that the city license number be displayed was upheld.
That portion of the ordinance on which the conviction in this ease rests is invalid. Since a retrial could not change the agreed facts, it is unnecessary to remand the case. The judgment is reversed.
— The foregoing opinion of Blair, C., is adopted as the opinion of the court.
Dissenting Opinion
— Appellant was convicted in a police court in the city of St. Louis of violating a city ordinance; he appealed to the St. Louis Court of Criminal Correction, where he was again convicted and fined ten dollars; from that judgment he has appealed to this court.
The ordinance under which he was convicted is contained in certain sections of the Revised Ordinances of the city approved March 19, 1907, relating to automobiles. Under section 1811, a license tax of ten dollars is imposed on each automobile used in the city. Section 1553 provides: “That hereafter all automobiles operated in the city of St. Louis shall display identification numbers as herein provided. Such numbers shall be not less than five inches high, and the fine marking the numbers shall be white and be five-eighths of an inch wide at every point and such numbers shall be placed at least three-fourths of an inch apart.” Section 1554 requires the numbers to be painted on black or blue signs or plaques of wood, metal or leather, or directly on the machine, provided the machine be painted black at that particular place;' the number to correspond with that on the license tag issued by the city official to the owner. Section 1555 requires the' number to be displayed on the rear of the machine as near as possible in the middle thereof, low enough not to be hidden by any obstruction on the machine. Section 1557 prescribes a penalty for violation of the ordinance.
Appellant’s contention is that the city ordinance requiring the number to be displayed, as therein specified, is invalid because he says it is in conflict with the state statute on the same subject. That is the only point appellant contends for in this case; in their brief the learned counsel for appellant say: “While there are many manifest errors in the record, there is but one
I. It is not questioned that a city ordinance to be valid must be in harmony with and subject to a general law of the State on the same subject. It is also not disputed that the city has authority under its charter to provide by ordinance for the levying of a license tax on automobiles, and it follows as an incident to that right to levy the tax that it make reasonable and necessary provisions for its collection and that incidental power is rendered all the more necessary when besides the-, collection of the tax there is a police duty to be performed in protecting the lives of people traveling the streets.
If the city is deprived of the power to require that an automobile, as it is driven along the street at a, high rate of speed, display a sign that it may be identified as one on which the license fee has been paid, the right to levy the tax might as well be taken away from the city; men could with impunity defy the law. In the city of St. Louis where there are several thousand automobiles in daily use, how can an officer detect one as running without a license as it. dashes by him on the street, if there is no sign orplaqüe displayed? And, aside from the revenue-feature of the matter, to deprive the city of the power to require some identification of the machine as one owned in the city, as distinguished from one-owned by a non-resident and merely passing through the city, would impair the police power of the-city. It is true after an automobile has been belaid, and its state sign has been read and its registration, number, ascertained, the city officer may communicate with the Secretary of State at Jefferson City and after a while the’ owner of the machine be identified. But that method would be almost as useless as none at all. The Legislature itself recognized the necessity of having
- The statute invoked by appellant as rendering the ordinance void is section 8505, Revised Statutes 1909; it originated in an act of the General Assembly approved March 19th, 1907. [Laws 1907, pp. 73-4.] In the first section of that act, now section 8503, Revised Statutes 1909, the terms thereinafter used' are defined. Section two, now section 8503, Revised Statutes 1909, requires every person owning an automobile to file in the office of the Secretary of State a statement giving his name and address, a description of his motor vehicle to be registered, the name of the maker, etc., on a blank prepared and furnished him by the Secretary of State. On the filing of that statement the Secretary of
The third section, now section $8504, Revised Statutes 1909, provides that if the owner of the registered vehicle should sell it, the registration is to expire and the certificate' be returned to the Secretary of State with notice of the sale and the name and residence of the purchaser.
Then comes section four, now section 8505, Revised Statutes 1909, which requires the owner of the motor vehicle to have the number of his registration seal conspicuously displayed on the back of the vehicle and in an illuminated device in front so that it can be seen at night; the size of the letters and figures are prescribed and then the section concludes with these words: “and provided that said owner shall not be required to place any other mark of identity upon his motor vehicle.” Those are the words which appellant contends forbid the city to require a sign or plaque displaying the number of the city license to be placed on the vehicle. What is the meaning of the word “identity” as used in that connection? The word identity has for its root the Latin word idem, meaning the same, it is defined by Webster as, “The condition of being the same with something described or asserted.” A stranger presents a check at a bank and is told that he must be identified; identified as what or as whom? As the man named in the check. To say that a thing is the same, without naming the thing with which it is intended to identify it, is to leave the sentence unfinished and make no sense. Webster says identify
II. 'The words relied on by appellant are inserted as a proviso to the statute. A proviso has reference only to what is contained in the body of the enactment; it is either an exception or a condition or a limitation on what has preceded.
“Its office,' generally, is, either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extended to cases not intended' by the Legislature to be brought within its purview.” [32 Cyc. .743, n. 56.] “Whether the term implies a condition or not, must of course depend on the context; sometimes it is a mere condition, sometimes it is an*519 exception.” [32 Cyc. 744.] “From a consideration of the office and function of a proviso it would seem to follow that it can have no existence, separate and apart from the provision which it is designed to limit. ‘If it was not intended to restrain the general clause, it was a nullity.’ ” [Endlich on Interpretation of Statutes, sec. 186.]
Giving to • the words contained in this proviso their legitimate interpretation they mean that no other evidence, to identify the machine as the one registered under that statute by the Secretary of State, shall be required.
III. I' do not understand appellant as disputing the proposition that the city has authority under its charter to levy the license tax in question and, as an incident to that right, would have the right to require the owner or operator of the machine to display the sign or plaque containing the license number as required by the ordinance as a means of identifying it with the machine for which the license was granted, if that requirement is not forbidden by the statute in question; but the contention is that that charter right, to that extent, is repealed or superseded by the proviso to the statute.
Eeferring again to the nature of a proviso, I do not see how it can be construed into an enactment repealing or superseding another law to which it makes no reference.
But going back to the original act of March 19, 1907, there is nothing in the title to the act to indicate that the Legislature intended to repeal any law that conferred expressly or by implication on the city any right it then possessed. The title to the act is: “An Act to repeal an act entitled ‘An act regulating the operation and speed of automobiles on the public streets, roads and highways of this State; fixing the an ount of license and prescribing a penalty for violating the same,’ approved March 23, 1903, and to sub
If the city had the authority to levy the license tax, it had, as incident to the exercise of that authority, the right to require the licensee to display a token or sign as an evidence that he had paid his license. Evidence of that character is required by the Federal government, the State government and the city governments when the license is of such a character as to render its display necessary; it is a reasonable requirement, for without it the law could not be adequately enforced. The General Assembly in enacting this very statute recognized the necessity of such evidence and required it. Can we then say that the same General Assembly intended to take away from the city the right to require this evidence of compliance with its law, when to do so would be equivalent, or nearly so, to taking away the right to impose the tax, and that too when there was no indication in the title of any such purpose? If it had so intended it would have spoken more plainly to that purpose, it would not have veiled its intent in the form of a proviso, which is naturally susceptible of an interpretation that refers to another subject.
The General Assembly of 1911 passed an act repealing the Act of 1907, which is Chapter 83, Revised Statutes 1909, and enacted a new chapter in lieu thereof (Laws 1911, p. 322), by the fifth section of which it is provided that no person should operate a motor vehicle while on a public highway without displaying its registration number in a form therein prescribed on the rear of such vehicle “and no motor vehicle shall display any other number or plate on the rear thereof except as hereinafter provided.” A construction of that statute, of course, is not called for in this case, and we refer to it
In my opinion the city ordinance under which the appellant was convicted is not in conflict with the section of the Act of 1907 referred to, which is section 8505, Revised Statutes 1909. The judgment should be affirmed.
