86 So. 450 | Miss. | 1920
delivered the opinion of the court.
This is an appeal presenting a case wherein the appellant was convicted on a charge of having violated section. 60, chapter 9, of -the Ordinances of the city of Greenville. The material parts of sections 60 and 64 of said ordinance are here set out:
“No persons shall operate a motor vehicle upon the streets of the city of Greenville until he shall have obtained from the city clerk a license for such purpose. But no such license shall be issued until said clerk is satisfied that the applicant is over the age of fourteen years and is competent to operate such*654 motor vehicle. If any applicant for such license possessed any physical defect which might affect the operation by him of a motor vehicle the said clerk may require such applicant to show cause why a license should be granted him, and may require such applicant to demonstrate personally that, notwithstanding such defect, he is a proper person to operate a motor vehicle. In determining the fitness of an applicant to receive a license the said clerk may require the applicant to pass an oral or written examination on motor laws of the state, the traffic laws of the city of Green-ville, and on the mechanism of the car to be operated. The license issued shall state the name, place of residence and post office address of the licensee and the number assigned to him, and such other matter as said clerk may determine. Such license shall expire at midnight on the 30th day of July of each year, and shall be carried by the licensee when operating a motor vehicle upon any highway of the city, and shall be subject to examination upon demand by any proper officer. Before receiving such license the applicant must pay the city of Greenville the sum of one dollar;, which said license fee is charged for the purpose of bearing the cost of original examination.”
It is provided by section 64 that: “Any person found guilty of violating the provisions of section 60 shall be guilty of a misdemeanor and subject to a fine of not less than twenty-five dollars, or imprisonment not to exceed ninety days, or to both such fine and imprisonment.”
The case was tried and decided by the lower court on the following agreed statement of -facts, -to-wit:
“By agreement of the attorney for the city of Greenville, and the defendant herein, a jury trial is waived by the defendant in this cause, and the cause shall be heard by the judge upon the record therein, and the following agreed statement of facts:
“The defendant admits that on the 12th day of June, 1949, he was driving an automobile upon the streets of said city, which automobile was owned by him and used as a pleasure car for himself and family, and that he had not*655 procured the license to drive the car required by section 60 of an ordinance of the city of Greenville, adopted on the 4th day of June, 1Q19, by the city council of said city, and which was in force on June 12, 1919'.
“That the defendant at that time and prior thereto held road and bridge privilege tax license provided for by section 5759 of Hemingway’s Code, issued to him by the tax collector of Washington county, Mississippi, on. the 30th day of January, 191.9, for which he had paid the sum of eight dollars and forty cents; that the city of Greenville had expended not exceeding twenty-five dollars for printing license cards provided for in- said ordinance; that the said city of Greenville had collected during 1919 about six hundred dollars for license fees for the privilege of driving an automobile under the provision of said ordinance; and that it is estimated that, if all persons in the city of Greenville who drive automobiles should pay the fee of one dollar the revenue to the city would be at least two thousand dollars.
“It is further agreed that the. city had shortly prior to June 12, 1919, employed an extra policeman as a special traffic officer at a salary of one hundred and twenty-five dollars per month, and had purchaser for the use of said traffic officer a motorcycle at a cost of two hundred and fifty dollars; that the salary of the city clerk had recently been increased twenty-five dollars per month. But it is not agreed that the employment of said traffic officer and purchase of said motorcycle and increase of salary of said city clerk, are proper charges to be considered in connection with the license provision of said ordinance.”
The appellant contends that the conviction can not be maintained because the city ordinance is void, and assigns several reasons for this position: First, that said section 60 of the ordinance is void because of unreasonableness; second, because the restrictions imposed by the ordinance are an attempted misuse of the police power; third, because the alleged license fee required by said ordinance is, in reality, a revenue measure; and, fourth, that it is void because if conflicts with the prohibition of sections 5759 and
On the opposite side, the city of Greenville argues that the position of appellant is unsound because: First, the license regulation imposed by said ordinance is a reasonable one; second, that the corporate authorities of the municipality have a right under the police authority to impose a license upon the drivers of all motor vehicles operated upon its, streets.
We' shall briefly refer to and 'discuss the contentions presented by the appellant. First, is the ordinance void for unreasonablness, because it authorizes a minimum penalty of twenty-five dollars, and a maximum penalty of ninety days’ imprisonment and a fine of twenty-five dollars, for its violation ? It is argued by counsel for the appellant that such penalty is manifestly excessive and violates section 28 of the Constitution of 1890, and that it is so excessive and harsh as to be unreasonable in relation to the offense, where the offender has failed to secure the license or has inadvertently failed to carry it on his person for examination on demand by any proper officer.
We mast disagree with counsel for appellant on this point. We think that, while the penalty imposed for the violation of the ordinance is rather-severe, yet the evil intended to be remedied is such that the legislative discretion and wisdom of the city council cannot be said to have been grossly abused. Legislative discretion in fixing penalties is to have the widest latitude. The safety of the public requires that the dangerous motor vehicle be operated by competent and safe operators. Motor vehicle drivers, who operate their Ambicies in an incompetent and dangerous way, are- a menace to the safety of the public, and, in order to protect the public and minimize such evil, the municipal government acts within the bounds of reason when it imposes a severe penalty upon drivers who violate the ordinance in question. In our judgment, the penalty prescribed-bears a reasonable and just relation to the object sought to be accomplished by the ordinance.
It is' argued by counsel for appellant that the ordinance is invalid, in that it provides that “no person shall operate a motor vehicle upon the streets,” etc., which would apply as a restriction upon persons residing outside of the corporate limits, who would casually or infrequently operate their cars in passing through the municipality; that this restriction and harassment of transient operators in the use of the streets, in .passing from one part of the state to another upon the highways, would be unreasonable. If we concede the soundness of this contention, the appellant cannot here complain, because he is a resident citizen of the municipality and a frequent user of its streets, and the court could judicially interpret the ordinance to be nona.pplicable to casual or infrequent users of the streets, if a literal interpretation otherwise would lead to an absurdity or injustice not intended by the lawmakers. Such a construction by the court would result in the elimination of that feature of the ordinance complained of by appellant, and still the other parts would remain valid. However., we decline to pass upon that point at this time.
Referring to the third reason assigned by appellant, that the ordinance is void because it is a revenue measure, and that the city is without power to tax the driver of an automobile which is already taxed by the state law: This argument seems to be based upon the fact that the license fee of one dollar is charged each driver, and in, this way the ordinance is for the purpose of revenue. We do not hesitate to say that, if the ordinance was a revenue measure., it would be in conflict with the state law, which prohibits an additional tax being imposed on private motor
The fourth contention of appellant, that the license fee of one dollar is in violation of section 5788, Htemingway’s Code (Laws 1916, chapter 116), in that the license fee is an additional tax to that prescribed by the state on, motor vehicles, and, quoting from chapter 161, Laws of 1918, “the payment of this tax in one county shall be good for the entire state,” is also a position with which we disagree. There is a clear distinction between the tax imposed by the state upon each motor vehicle and the license fee imposed upon each motor vehicle driver under the city ordinance. One is a revenue tax upon the vehicle for the use of the public roads; the other is a license fee charged an applicant for examination and granting the privilege to operate a dangerous motor vehicle in the streets of the city. One tax is on the vehicle, to raise revenue; the other is on the personal privilege to operate a motor vehicle. One is the exercise of the taxing power; and the other is the exercise of the police power in promotion of the public safety.
We hold the ordinance in question is valid in so far as its validity may be contested by the appellant in this case. The imposition of the prescribed penalty upon a driver who has inadvertently failed to carry his license and is unable to show it when requested by the officer,, may or may not be unreasonable; yet the appellant has no right to1 raise this .point here because he was not convicted for a violation, of this feature of the ordinance. This provision of the ordinance. is separable, and may be struck down as void, and the other parts of it upheld as valid.
The judgment of the lower court is affirmed.
Affirmed,
