8 Kan. 82 | Kan. | 1871
The opinion of the court was delivered by
The action below was a criminal prosecution before the police judge of the city of North Lawrence for a violation of one of its ordinances. Upon an agreed statement
The material facts are these: Plaintiff in error was the owner of and kept and used for hire a wagon drawn by four horses in transporting goods from the depot in North Lawrence over its public streets to merchants in Lawrence. He had no license from the city of North Lawrence. There was in force at the time an ordinance of the latter city in relation to licensing vehicles. Section one of that ordinance provides that no one should without license keep, hire out,' or cause to be run, “any hackney coach, carriage, omnibus, or dray.” Section two reads as follows: “ Before any person, company, or corporation shall keep, use, or run for hire curvy of the aforesaid vehicles, he or they shall pay the said city for every hackney carriage the sum of five dollars; for every omnibus, the sum of ten dollars; for every dray or wagon drawn by one horse, the sum of three dollars; for every dray or wagon drawn by two horses, the sum of five dollars; and for every dray or wagon drawn by more than two horses, the sum of seven dollars.” Section six provided a penalty of not less than five nor more than twenty dollars for non-compliance.
Tliis ordinance is penal in its nature, and must be strictly construed. Before an inquiry would be proper as to what powers the city has under its charter, we should determine what it has assumed to exercise. Before considering whether it has power to require a license of plaintiff in error, we must see whether it has assumed to demand it. Before deciding the constitutionality of an ordinance which a party is charged to have violated, we must ascertain whether he has in fact violated it. The only vehicles named in the first section are these:
Is the vehicle as described in the agreed statement one of those named in the first section? It is described as “ a certain wagon, drawn by four horses, and used in the transportation of property,” and “ used for transferring goods of grocers and merchants.” Now this description will not apply to either of the four kinds of vehicles named. No one would consider that as defining either a “hackney coach,” a “carriage,” an “omnibus,” or a “dray.” Yet these are the only vehicles named. These terms each refer to some particular specific kind of vehicle, and none of them like the one described. The most general term of the four is “ carriage;” and yet this is understood to refer to vehicles for the conveyance of persons rather than for the transportation of property. The term “ wagon ” is itself far more of a generic term than either of these four. It might indeed without any great impropriety be held to include them all. But it also includes many other kinds of vehicles. A simpler statement that the vehicle of plaintiff in error was a “ wagon,” would not show that it was one of the four kinds named; and the further description shows plainly that it was not. There is at any rate nothing which describes either of the four vehicles with sufficient
But the term “ wagon ” is used in the second section — ■“ For every dray or wagon drawn by more than two horses,” seven dollars must be paid. This term embraces the vehicle as described. The seven dollars was not paid, and it is claimed therefore that the ordinance was violated. But as we have seen, section two simply fixes the amount to be paid for the license of the vehicles which by the first section are required to be licensed. Generic words in the second do not enlarge the scope of the first section. On the contrary they are limited by it. Finding the term wagon in the second section does not authorize the courts to supply it in the first, nor to infer that the city meant to require a license for them. Only those wagons are required to pay which are required to be licensed.
The plaintiff in error having then no vehicle for which by this ordinance a license was demanded has not violated the ordinance by a failure to pay money into the treasury of the city; and the judgment against him must be reversed with costs.