58 A. 442 | Md. | 1904
The Commissioners of Cambridge, a municipal corporation, sued the Cambridge Water Company in assumpsit for money claimed to be due from the company to the Commissioners for unpaid license fees upon fire-plugs. The defendant filed three pleas to which the plaintiff demurred. The Court overruled the demurrer and the plaintiff declining to answer further, final judgment was entered for the defendant from which the plaintiff appealed.
The ordinance on which the plaintiff relied in asserting its claim requires all persons, using or maintaining fire-plugs, telephone poles or other structures therein mentioned, in any of the streets or alleys of the town of Cambridge to annually, during the month of November, file with the Town Clerk and Treasurer a list of all such plugs, c., and pay to him during the month of December a fee of two dollars for each plug, c. The ordinance also imposes a penalty upon owners of plugs, c., who fail to comply with its provisions.
The present case was brought to the July Term 1903, and the declaration alleged that the defendant on or before the first day of November, 1902, and ever since then had used and maintained thirty-six fire-plugs on the streets of Cambridge but had wholly failed to file a list thereof with the Town Clerk and Treasurer or to pay the fee of two dollars per plug or otherwise to comply with the terms of the ordinance. We do not deem it necessary to discuss the several matters set up in defense of the action by the pleas, because the filing of the demurrer to them requires us to examine all of the pleadings and render judgment against the party committing the first substantial error, and such an examination discloses a material defect in the declaration. *503
The allegations of that instrument, even when aided by the Act of 1900, ch. 339, reincorporating the plaintiff of which as a Public Local Law the Court must under the ruling made in Slymer
v. The State,
The authorities generally hold that the power to impose license taxes or fees upon persons or corporations engaged in the pursuit of a particular occupation is not inherent in municipal corporations and will never be held to exist unless it has been conferred by the State upon the municipality either in express terms or by necessary implication. 1 Dillon on Mun. Corps.,
sec. 361; Horr Bemis on Mun. Ord., sec. 256; McQuillan onMun. Ord., sec. 256; Fowle v. Alexandria, 3 Pet. 398;Wilkie v. Chicago,
There is no element of regulation in the provisions of the ordinance now under consideration. It exacts the license fee as a condition precedent to the right of the plugs to exist and authorizes the town bailiff to remove them if the fee be not paid. Nor can it be successfully contended that the exacting of this license fee is a legitimate exercise of the police power as has been held in some cases in reference to licensing certain occupations which from their nature might injuriously affect the public safety or the public health or tend to create nuisances. It cannot be seriously contended that maintaining fire-plugs is such an occupation or that the ordinance now under consideration was enacted to avert any such danger.
The Act of 1900, ch. 339, which constitutes the Charter of Cambridge is a long one and goes into great detail in the classification and description of the powers conferred upon the municipality. Section 59 confers power to pass all ordinances necessary for purposes enumerated in thirteen sub-sections the last of which is to regulate water-pipes, hydrants and plugs,c., c. Section 70 confers power to open, close, extend, widen, keep in repair, c., streets, lanes and alleys. Section *505 75 deals specifically with the subject of licenses. It empowers the municipality "to require licenses or permits to be obtained by the parties or persons hereinafter enumerated" and then in twenty-three sub-sections specifically describes the persons or corporations of whom the procuring of a license may be re-required, and designates them by the occupations in which they are engaged. Neither water companies nor water-plugs appear either expressly or by any fair or reasonable intendment in any one of these twenty-three sub-sections. Expressio unius estexclusio alterius.
The case of Mason v. Cumberland,
The action of the Circuit Court for Dorchester County in overruling the plaintiffs' demurrer, and upon its refusing to answer further entering up judgment for the defendant for costs must be affirmed.
Judgment affirmed with costs.
(Decided June 9th, 1904.) *506