90 Mo. App. 450 | Kan. Ct. App. | 1901
By section 1, article 3 of the Kansas • City charter of 1889, it was provided that the mayor and common council should have the power by ordinance “'to license, tax and regulate . . , hansom cabs, hackney coaches, carriages, barouches, buggies, wagons, omnibuses, carts, drays, job wagons, and all other vehicles; lenders of money on chattel mortgages; to fix the rates for carriage of persons and of wagonage, drayage and cartage, and regulate the width of tires of all vehicles for heavy transportation,” etc. Later on, the said plaintiff city passed an ordinance, by the first section of which it was provided: “Hereafter no vehicle shall be used, driven or operated in or upon the streets, alleys or public places of the city, without a license being paid for such use. And by reason of the fact that the streets and public places of the city are more rapidly worn and more constantly used by some vehicles than others, the following schedule of license fees is hereby fixed to be paid for such . . . wagons (other than job) : When drawn by one horse or animal, $2 per annum; when drawn by two horses or animals, $4 per annum; when drawn by three horses or animals, $5 per annum; when drawn by four or more horses or animals, $6 per annum.”
The fee required for the license to use, on the streets, each one of the other vehicles specially named in the previously quoted charter provision is likewise graduated according to the number of horses or animals drawing them. By the second section it was ordained that: “No person shall use or drive any vehicle required by this ordinance to be licensed,” etc., “in or upon any street or public place unless a license for the same has been procured,” etc. And section 3 provides that any person failing to comply with any provision or regu
The defendant was prosecuted and convicted, under the ordinance just referred to, for driving a one-horse laundry wagon on the streets of the plaintiff city, which said horse and wagon was owned by the Gate City Laundry Company, a corporation operating a steam laundry within the limits of the plaintiff city. It was admitted (1) that said laundry company had a license from the plaintiff city to carry on and operate therein a steam laundry business; (2) that the sole use to which the wagon was put by the laundry company was the collecting and gathering up of linen and laundry bundles of customers and carrying the same to said laundry pant — and when washed, ironed and laundried, carried back to its customers; (3) that there was no charge made either by defendant or the laundry company for the use of the wagon; and (4) that the defendant had not paid the'wagon license required by said ordinance.
The defendant has brought the cause here by appeal and by which he assails the validity of said ordinance on the ground:
I. That said ordinance is violative of section 3, article 10 of the State Constitution, which requires that taxation shall be uniform on the same class of subjects within the territorial limits of the authority levying them. The object of this constitutional provision was to prevent discrimination between objects belonging to the same class of subjects. There can be no doubt as to the pow’er conferred by the said section of the charter of the plaintiff city to divide by ordinance the various occupations into different classes and that a tax upon all tire persons belonging to one class would not be obnoxious to the Constitution merely because another class be not taxed. Kansas City v. Grush, 151 Mo. 128.
The constitutional provision just referred to does not in-
But if we are in error in this and the said constitutional provision is applicable to license taxes (Kansas City v. Grush, supra, and St. Louis v. Speigle, 90 Mo. 587), still, it is clear that the ordinance here is not obnoxious to it. The requirement of equality and uniformity does not preclude the division of things taxable into classes and the imposition of taxes which, while bearing equally upon different members of each class, bear unequally upon the classes in the aggregate; and a legislative division of this sort can not be interfered with by the courts. Aurora v. McGannon, 138 Mo. 38, and authorities there cited. And in the last case cited it was held that an ordinance which imposed a license of two dollars on merchants with a stock of less than one thousand dollars, and three dollars on those with a greater stock, did not violate said constitutional provision. And, therefore, it seems to us that as the tax exacted by this ordinance is uniform as to each class of wagons therein named and graduates the charge so that that kind which most wears out the streets shall pay the most. and those which wear them out less shall pay less, the rule of uniformity required by the Constitution is not trenched upon.
II. The defendant insists that the license tax required by the present ordinance is a tax upon personal property. To this insistence we can not yield our assent, for the reason that w'O think the law is now well settled, at least as far as we are concerned, that it is a license tax on a privilege connected with property, and not upon the property. And though imposed for revenue, it is a tax in the nature of a license, because it
III. The defendant further insists that the said ordinance is void for the further reason that it exacts a tax for the privilege of using vehicles on the streets of said plaintiff city and thereby abridges the right of every citizen of the State to use the public streets of plaintiff without money and without price. It is perhaps a fundamental idea that a street shall be public for all purposes to those who make use thereof. But it must he understood that the exercise and enjoyment of such right is subject to such reasonable regulations as may be prescribed by ordinance. The use of the streets by vehicles of every kind doubtless may be regulated by the city authorities undena charter or statute empowering them to regulate vehicles. Elliott on Streets, sec. 454; Dillon’s Munic. Corp., sec. 682. And in this State, under a charter which conferred the power to tax and to regulate, an ordinance was upheld which exacted a tax on the privilege of using vehicles, both public and private, on the streets, and provided a penalty for failure to pay such tax. St. Louis v. Green, supra.
Whether an ordinance passed, exacting a license tax to be paid on vehicles of any kind to be used on the streets of a city, be referable to the police or revenue powers or to both is immaterial, since in either case the right to use the street after the passage of such an ordinance becomes a conditional or qualified fight, and so it will not do, as we think, to say that the ordinance now before us is invalid because it attaches certain conditions and qualifications to the privilege of using the streets of plaintiff city. The defendant strenuously in
Section 727 quoted from Dillon’s Municipal Corporations and approvingly referred to in State v. Corrigan (referred to by defendant) decides no more than that municipal corporations can not, by an implied power, confer corporate franchises on street railways or authorize them to take tolls, and that such power must come from the Legislature. It is too plain for argument that the implied power of a municipal corporation to authorize a street railway to take tolls, is not the same thing as the exercise by it of an express power granted to it by its charter to exact a tax for the privilege of using its streets for operating vehicles thereon, and, hence, it is difficult to perceive anything in State v. Corrigan that impugns St. Louis v. Green. We think it has been authoritatively settled in this State, since St. Louis v. Green was decided, more than twenty years ago, that under a charter power to tax and regulate specified public and private vehicles a municipal corporation may pass a valid ordinance taxing either class of them for the use of its streets.
V. The defendant’s final insistence is that the power to pass the ordinance is not conferred by the charter of the plaintiff city. And in support of this he cites us to St. Louis v. Grone, 46 Mo. 574. The ordinance which was before the court in that case was condemned because it was broader and more comprehensive than the grant of power conferred by the charter. The former exacted a license tax not only on ve
St. Louis v. Grone, supra, and Hannibal v. Price, 29 Mo. App. 280, are each illustrations of the application of the rule ejusdem generis in ascertaining the meaning of the words of a charter “all other vehicles,” following the enumeration of a single class. But neither of those cases, so far as we can discover, have any direct bearing on the present one. When the Legislature, or the freeholders as here, have in a charter expressly conferred the power to tax two distinct classes of vehicles and have followed this express grant with the phrase, “all other vehicles,” we do not think the power to tax either the one or the other of such classes can be impaired or frittered away by the application to such phrase of any technical rule of construction.
An examination of the instructions has convinced us that the court committed no error in the giving or refusing of them, and, hence, it results that the judgment must be affirmed.