219 P. 810 | Mont. | 1923
delivered the opinion of the court.
In August of this year a complaint was lodged with the police court of the city of Bozeman, charging that Frank E. Davis and Albert B. Erickson were carrying on the business of operating auto taxis and auto busses for hire within the city, without first having procured the license therefor required by Ordinance No. 535 of the public ordinances of the city. The police court sustained a general demurrer to the complaint, discharged the accused and dismissed the proceeding, whereupon the city applied to this court to exercise its power of supervisory control, and annul the order of the police court. An order nisi was issued, and upon the return a motion to quash was interposed, and the cause submitted for final determination.
The complaint filed in the police court states a cause of action if Ordinance No. 535 is in effect, but the validity of
1. It is contended that the ordinance is a revenue measure and for that reason alone cannot be upheld. If the premise is correct, the conclusion follows, for it is now settled beyond further controversy in this state that a city cannot raise revenue for general municipal purposes by the imposition of license taxes. (Johnson v. City of Great Falls, 38 Mont. 369, 16 Ann. Cas. 974, 99 Pac. 1059; Reilly v. Hatheway, 46 Mont. 1, 125 Pac. 417.)
The case last mentioned was tried upon its merits, and evidence was introduced from which it appeared conclusively that the ordinance there involved was intended to raise revenue for general city purposes, and was not designed for regulatory purposes under the police power of the city. In the case now before us there is not anything to indicate the character of Ordinance No. 536 except the terms of the ordinance, and from them alone the validity of the ordinance must be determined, so far as this proceeding is concerned.
The ordinance is entitled: “An ordinance requiring those engaged in certain occupations, industries, trades, pursuits, and professions in the city of Bozeman to pay a license fee in aid of the police regulations of the city,” etc.
Section 1 declares that “In aid of the police power and regulations of the said city of Bozeman it is hereby ordained that no person, firm, association or corporation shall conduct, operate, transact, engage in or carry on any of the industries, trades, pursuits, professions, vocations or businesses within the city of Bozeman hereinafter specified and enumerated without first applying for and obtaining a license therefor from the city of Bozeman as herein provided and if such application for license be granted, shall pay therefor as follows.”
Then follows in alphabetical order an extended list of occupations with the amount of the license fee for each. To illustrate:
“Art stores, $10.00 per year.
“Auto taxis for hire. First taxi $25.00 per year; each additional one $12.00 per' year.
“Auto busses for hire. First bus $25.00 per year; each additional one $15.00 per year,” and so on throughout the list.
Section 13 provides: “It is hereby declared that the industries, pursuits, professions, occupations, businesses, trades and vocations required to procure licenses under this ordinance require special regulation, inspection, control and protection under the general police power of the said city of Bozeman,” etc.
The same section provides that all funds collected under the ordinance together with one-half of all fines and penalties collected by the police court, one-third of all building permit fees and one-third of all building inspection fees collected by the city shall be deposited in a special fund to be known as the “Protection of Life and Property Fund,” and after defraying the expenses of administration of the ordinance, seven and one-half per cent of the fund shall be devoted toward the payment of the expenses of the health department, two and one-half per cent toward paying the expenses of the police court, fifty per cent toward paying the expense of the police department, and forty per cent toward paying the expenses of the fire department.
While it must be conceded that this court is not 'bound by the recitals in the title or body of the ordinance, in determining whether the purpose is to raise revenue or enforce reasonable police regulations, there is not anything in this ordinance which tends to contradict the deeclared purpose of the Act. Whether a particular business requires special police inspection, regulation or control is usually a question of fact, and, since the legislative department of the city government has declared that the industries required to be licensed by Ordinance No. 535 do call for such special police
The ordinance is not open to the objection that it does not contain any regulatory provisions — the objection that was sustained to the ordinance considered in Los Angeles v. Lankershim, 160 Cal. 800, 118 Pac. 215, and to the one involved in Ex parte Tepper, 60 Cal. App. 98, 212 Pac. 220.
It is true that the ordinance now under review does not specify in detail the duties of the several officers who may be engaged in carrying its provisions into effect, but it is not necessary that it should do so. It does provide: ‘ ‘ Sec. 5. Every person, firm, association or corporation licensed under the provisions of this ordinance shall be subject to regulation, inspection, control and supervision under the general police power of the city of Bozeman and of all of the ordinances now in force or which may hereafter be adopted in aid of such police power and regulation.” And this is further convincing evidence that the ordinance is intended as a police regulation.
A distinction between a license tax and a tax proper or a revenue measure is stated as follows: “Where the fee is imposed for the purpose of regulation and the statute requires compliance with certain conditions in addition to the payment of the prescribed sum, such sum is a license proper imposed by virtue of the police power; but when it is exacted solely for revenue purposes without any further condition it is a tax.” (17 R. C. L. 479.)
The general structure of this ordinance, and the particular purposes to which the funds collected under it are devoted, tend strongly to give to it the character of a police regulation; at least it cannot be said from an inspection of the ordinance itself that it is a revenue measure. (John Rapp & Son v. Kiel, 159 Cal. 702, 115 Pac. 651.)
2. It is contended further that, if the ordinance be con- sidered as a police regulation, it is so unreasonable in the amounts exacted that it is void. It is the general rule
Cases may arise wherein it is possible for a court to say, as a matter of law, that a given fee is out of all reasonable proportion to the expense of proper police inspection and supervision, as was done in Smith v. Mahoney, 22 Ariz. 432, 197 Pac. 704, but such is not the case before us. In considering a somewhat similar ordinance under like circumstances, the supreme court of Washington said: “The amount of the license fee fixed by the ordinance .for the business of pawnbroking is $100 per annum. There is nothing in the record to show what the actual costs are, or what a reasonable charge would be, for enforcing the regulations prescribed, and we are asked to say, as a matter of law, that the amount fixed is so far in excess of any sum that could be legitimately charged for regulating the business as to enter the domain of taxation. We do not feel that we are authorized to do this in the case before us. It is not doubted that the business of pawnbroking is a proper subject of police regulation, nor is it doubted that it is within the province of the municipal authorities to make the business bear the costs of such regulation. As these costs must be prescribed in advance, they must of necessity be based upon estimates which it is the right and duty of the municipal authorities to make. The courts cannot, therefore, on any mere difference of opinion as
3. It is idle for counsel to contend that the motor vehicle business, when conducted for hire, is not subject to police regulation, or that the business does not require police regulation. Chapter 154, Laws of 1923, in force prior to the enactment of Ordinance No. 535, has to do with the licensing and regulation of the motor vehicle business for hire upon the public highways of the state. Section 3 of the Act provides, among other things: “Cities and towns may enact and enforce reasonable regulations and regulatory ordinances including the imposing of regulatory licenses not destructive of the general purposes of this Act.” Our attention is not directed to any provision of Ordinance No. 535 which is even inconsistent with the purpose of Chapter 154 above.
4. Again, it is insisted that, if it were the purpose of the city of Bozeman to license the business of operating motor vehicles for hire, Ordinance No. 535 fails to carry that intention into effect. It is argued in this behalf that at best the ordinance only assumes to license each auto taxi and auto bus and not the business of operating such vehicles. The same
5. Again, it is insisted that the ordinance is void in so far as it attempts to exact a license fee exceeding $10 for each vehicle. Section 5039, Revised Codes of 1921, provides: “The city or town council has power: * * * 3. To license all industries, pursuits, professions and occupations, and to impose penalties for failure to comply with such license requirements; but the amount to be paid for such license must not exceed the sum required by the state law when the state law requires a license therefor.”
Chapter 154, Laws of 1923, above, confers upon the state Railroad Commission general supervision of rates to be charged and facilities and service to be furnished by transportation, companies engaged in operating motor vehicles for hire upon the highways of the state (section 3). It provides also that “No transportation company, as defined in section
Waiving aside for the present the question of the power of the legislature to delegate to the Railroad Commission the authority to exact a license fee from anyone and to determine the amount thereof within the limit indicated in section 8 above, it is to be observed that the Act itself does not require that a license fee be exacted at all, and does not attempt to fix the amount which the commission may exact beyond designating the maximum fee which may be charged. There is nothing in this record to indicate that the Railroad Commission has exercised the power (if power'it has) to impose a license fee upon transportation companies engaged in operating motor véhicles for hire. Under these circumstances it cannot be said that the license fee prescribed by Ordinance No. 535, for engaging in the business of operating motor vehicles for hire, exceeds the sum required by the law of the state as a license fee for the same business. It is no objec
6. Finally it is urged that the ordinance operates retro- actively, and for that reason cannot be upheld. The ordinance was not enacted until May 14, 1923. It prescribes the license fee for those engaged in the business of operating motor vehicles for hire upon a yearly basis. It is insisted that the city cannot exact the entire fee prescribed by the ordinance for the year 1923 and, since no provision is made for apportioning the amount to be paid for the remaining portion of that year, the ordinance is void in so far as it undertakes to authorize the imposition and collection of the fee for the entire year 1923. The same attack was made upon the income tax law of Wisconsin, and the supreme court of that state disposed of it summarily as follows: “One further objection we overrule here without comment, for the reason that it seems very unsubstantial, namely, the objection that the law is retroactive and void, because assessed on incomes received during the entire year 1911, while it did not go into effect until July 15th of that year.” (State v. Frear, 148 Wis. 456, Ann. Cas. 1913A, 1147, L. R. A. 1915B, 569, 606, 134 N. W. 673, 135 N. W. 164.) The objection now under consideration is equally without merit. The ordinance is not retroactive (36 Oye. 1201), and the accused were not charged with operating without a license previous to May 14, 1923, but were charged with operating without the necessary license on August 22, 1923, long after the ordinance became effective.
The ordinance appears to be proof against any of the attacks made upon it. Its validity will be presumed in the first instance (2 McQuillin on Municipal Corporations, sec. 794), and until that presumption is overcome it is the duty of the police court to uphold it.
Order annulled.
