164 P.2d 618 | Cal. Ct. App. | 1917
An ordinance of the city of Tropico, which is a city of the sixth class, among other things, contained a *162 provision in effect making it unlawful, without first obtaining a license so to do, for any person to operate or carry on the business of operating any auto bus or motor vehicle over the streets of said city in carrying passengers for hire from one point to another, both of which points are outside the boundaries thereof. Upon a complaint charging petitioner with the violation of this ordinance, in that on November 21, 1916, he did "unlawfully operate a motor vehicle engaged in the business of carrying passengers for hire, which said motor vehicle was then and there operated and run over a particular route and between particular points, to wit: between the city of Bakersfield and the city of Los Angeles, through the city of Tropico and over San Fernando boulevard, a public street in said city, without first paying a license fee and obtaining a license therefor from said city of Tropico, contrary to the provisions of ordinance No. 119 of said city," a warrant was issued upon which he was arrested and held in custody by the city marshal.
Petitioner contends that the provision of said ordinance with the violation of which he is charged is invalid for a number of reasons, chief among which is the claim that a city of the sixth class is not vested with authority to enact an ordinance imposing a tax by license or otherwise upon motor vehicles conducting the business of transporting passengers from Los Angeles to Bakersfield over public highways a small part of which extend through the city of Tropico, where, as hereconceded, no stops are made for the purpose of either taking on or discharging passengers in such city, nor any soliciting of business had therein. While under its police power such city may adopt and compel the observance of all reasonable measures intended for the regulation of traffic over the streets by all persons operating motor vehicles thereon, its sole power to levy a tax of this character is found in subdivision 10, section 862, of the charter for cities of the sixth class (Deering's Gen. Laws, ed. 1915, p. 1123), which provides that the board of trustees of said city shall have power "to license, for the purpose of revenue and regulation, all and every kind of business authorized by law and transacted and carried on in such city or town, and all shows, exhibitions, and lawful games carried on therein; to fix the rates of license tax upon the same, and to provide for the collection of the same by suit or otherwise." Under this *163
provision the power of the city to impose a license upon abusiness is clearly limited to that only which is "transactedand carried on in such city." That by virtue of this section the city of Tropico may require persons, companies, or corporations who therein conduct the business of transporting passengers for hire to be licensed, admits of no question. It is the occupation, however, not an act which is merely incidental thereto, which is subject to the tax. (Merritt v.State, 19 Tex. App. 435; Weil v. State,
For the reasons given, the provision of the ordinance in question for the violation of which petitioner is deprived of his liberty is invalid. It is therefore ordered that he be discharged from the custody of the city marshal.
Conrey, P. J., and James, J., concurred.