118 P.2d 761 | Wyo. | 1941
Lead Opinion
This action is brought to enjoin the City of Cheyenne from enforcing an ordinance passed in June, 1935, and which, without reciting its title or its concluding parts, is as follows: *359
"SECTION 1. For the purpose of this Ordinance, a Motor Caravan transporting automobiles through the City of Cheyenne shall be defined as any group of cars or trucks trailing or carrying new or second-hand automobiles to a destination outside of the City of Cheyenne and passing over the streets of said City. A group of cars or trucks is defined as one or more of such vehicles trailing or carrying new or second-hand automobiles destined for points outside of the City of Cheyenne.
SECTION 2. It shall be unlawful for any caravan, as defined in this Act, to pass over the streets of Cheyenne without first obtaining from the Chief of Police a permit as provided herein. Such permits shall be of two classes, and issued to cover the expense of regulation, control and supervision of said caravans.
A permit allowing the use of the streets of the City, without parking privileges, shall be issued to the manager, driver, or other chief officer of the caravan, designating the number of vehicles in said Caravan, the license number of the automobile operated by the officer or driver in charge of the caravan, a description of the automobiles being towed, towing or being transported, and the period of stay in the City of Cheyenne. Such permits shall be issued at a charge of $1.00 for each automobile so transported.
A permit granted to such caravan parking privileges shall be issued in like manner, by the Chief of Police, incorporating all the information required by a permit which does not grant parking privileges. In addition thereto, the Chief of Police shall designate what area shall be occupied by the caravan, and extend it to parking privileges in periods of twelve (12) hours duration. The charge for such permits shall be $2.00 for each car being towed, towing or being transported, for such period of twelve hours. No permit shall include a charge for the motor vehicle occupied or driven by the manager or other chief officer of the caravan, provided such motor vehicle is his personal property and not being moved through the City of Cheyenne for the purpose of sale.
SECTION 3. Upon the issuance of a permit, the Chief of Police shall assign to the holder of the permit an officer of the Cheyenne Police force, for the purpose of escorting the caravan through the City, extending such *360 courtesies and assistance as may be necessary to insure the safe conduct of the caravan beyond the City limits. The Police officer shall be in complete charge of the entire caravan during the period of transit, and is hereby directed to take such precautions as may be necessary to insure the safety of the public. Any caravan parked in a designated area, after the hours of darkness, shall be suitably marked as may be directed by the police officer in charge. The minimum required shall be parking lights on the first and last cars of the caravan, after the hours of darkness, and lights of a suitable nature along the street side of the parking area every fifty (50) feet.
SECTION 4. This ordinance is enacted for the protection of the public health and safety, and for the protection of the citizens of the City of Cheyenne in the use and enjoyment of its thoroughfares.
SECTION 5. Any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and fined not to exceed one hundred dollars for each offense. A violation on different days shall constitute a separate offense."
It appears herein that plaintiff is a corporation organized under the laws of Illinois, with its principal place of business in Denver, Colorado; that it is engaged solely in the business of interstate transportation of new automobiles from points east of Wyoming to points west of this state, and has a permit from the Interstate Commerce Commission; that it uses for such transportation trucks and trailers attached, capable of hauling four automobiles at one time; that two of these automobiles are loaded onto the trailer, and two more on top of the others; that the wheels of none of the automobiles are on the ground and none of them are towed. Plaintiff comes within the legislation of the state regarding motor vehicles, and is subject to the regulations of the Public Service Commission. But, notwithstanding the fact that our statutes have special provisions relating to towed vehicles, that commission, according to the testimony in this case, classifies plaintiff's operation as a common trucking operation. Four *361 chains are attached to each automobile, one on each corner of the frame, and all are fastened to the trailer, so that there are 16 chains to each trailer. Four chains are attached to each automobile, so that if one of the chains should happen to break, it will still be safely fastened to the trailer by reason of the others. The load is no higher than permitted under regulations of the state. The truck and trailer are 42 feet long, shorter than many other trucks and trailers. The total length allowed under the laws of the state is 45 feet. Other testimony will be mentioned hereafter. Plaintiff in its petition alleged that the ordinance is not regulatory, but is designed for revenue purposes, and is arbitrary and confiscatory; that it is an undue burden on interstate commerce and in violation of Article 1, Section 8 of the Constitution of the United States; that it is also in violation of certain provisions of the Constitution of the state.
1. The plaintiff contends that its operations do not come within the contemplation of the ordinance in question because of the fact that it is substantially a trucking operation and not a towing as contemplated in the ordinance. We think the point was fairly raised by the petition. The ordinance was before us, though on the pleadings only, in the case of Kenosha Auto Transportation Company v. Cheyenne,
Counsel for the city contend that the vehicles of plaintiff come within the terms of the ordinance since Section 1 thereof relates to trucks "trailing or carrying" automobiles. Technically speaking that is correct. But that it is not necessarily controlling since the word "or" may be construed in a conjunctive or copulative sense when so doing prevents an unreasonable result. 46 C.J. 1126. If a truck should carry one or more automobiles completely enclosed on all sides, such operation would, of course, fall within the meaning of "carrying" used in the ordinance, if "or" is used in a disjunctive sense. We can hardly believe that counsel for the city would contend that the ordinance would be valid as applied to such an operation, based, as it would be, merely on the character of freight carried, or that the ordinance contemplated or intended to embrace such an operation. Hence to interpret "or" in a disjunctive sense would lead to an unreasonable result, and we must reject such construction and use the term in a conjunctive sense. And that construction, and that *363
only, is in harmony with the provisions of the ordinance as a whole. The title of the ordinance reads: "An ordinance providing for the regulation and supervision of motor caravans towed, towing and transporting automobiles through the City of Cheyenne, Wyoming." This title indicates not alone that it was intended to regulate "caravans," but specifically referred to "towing, towedand transporting" automobiles. When the ordinance was enacted, long caravans were continually passing through Cheyenne toward the western coast. Many cars were attached to each other, all of them having their wheels on the ground. In Morf v. Ingels,
2. It is further contended that the fees charged by the city under the ordinance are excessive as to the plaintiff and therefore void. We think we should decide this point, lest it be thought that the decision herein rests on purely formal grounds which might be easily remedied by the enactment of a new ordinance. The record discloses substantially the following facts: From February 1, 1939, to December 1, 1940, the plaintiff paid to the city $2420.00, which is at the rate of nearly $4.00 per day, $110 per month, or at the annual rate of $1320.00, and shows that one of plaintiff's vehicles passed through the city on the average of six to seven times a week. There is testimony in the record that the amount of transportation has increased since that time, so that the number of trips and the amount paid may now be larger.
Plaintiff's drivers stop in the city only for sufficient time to eat. When plaintiff first began its operation it failed to pay the fees provided by the ordinance, and its drivers were brought back into the city three different times, but the testimony indicates that this was done merely for the purpose of collecting the fees and cannot be taken into consideration in determining the reasonableness of the fees. Prior to about September, 1940, it was necessary for plaintiff in going westward to drive through a viaduct under the Colorado Southern Railroad, located about a quarter or half of a mile west of the city. Because of the height of the load, difficulties were encountered in passing through it, and the traffic officer of the city aided the drivers a number of times. But a different underpass had been constructed *366 since that time, so that such service is no longer necessary. Since the time when plaintiff has been advised of the existence of the ordinance, its drivers notify the police department of their arrival in the city and the place where they stop, and thereupon an officer is sent to collect the fees. According to the record the latter has a few times examined plaintiff's load and climbed on top to examine it for safety, but never found anything out of order. Generally the traffic officer when collecting the fee has not examined the vehicle with its load or looked at it. New drivers of plaintiff have, according to the testimony of a police officer, frequently been told by him how to get out of the city and he has a few times escorted them on the way out. Five of plaintiff's drivers testified that they never were escorted out of the city. The main trouble given by plaintiff's drivers, according to defendants' testimony, has been by reason of "double-parking," though that has been true with others, and the traffic officer supervises other trucks and vehicles as well as those of plaintiff. Most of the commercial trucks do not pass through the congested business district, but the plaintiff's trucks do, and except for that fact, the plaintiff's operation would give no greater trouble than the operation of other trucks, for which no special fees are exacted, unless a unit on the load should happen to come loose as mentioned below.
On the question of safety, the testimony, aside from that already mentioned, is substantially as follows: The loads carried by plaintiff are accompanied by two drivers, and they are instructed to examine the chains each time they stop. Plaintiff has never had an accident by reason of the method of loading. The witness Hall, president of the plaintiff company, testified that its trucks and trailers do not differ materially from other trucks and trailers. The witness Marrow, a transportation engineer, and Chairman of the Safety *367 Committee of the American Trucking Association, was asked the following question: "Is there any unusual fact or feature which would present a special traffic hazard or danger, or which would necessitate special regulation of automobile transport trailers, as compared with trailers used to transport any other type of cargo?" He answered: "I would say to this: Most emphatically NO in answer to that question. This particular type of equipment does not create any hazard, in my opinion. My reason for saying that is that I believe if there were to be any comparison between this type of equipment and the other types of equipment that I am familiar with on the streets and highways today, that this would be a safer unit." The only testimony of the city bearing on that point is that the load has been seen a few times to sway somewhat from side to side in a high wind, but the chains had never been seen to come loose. The chief of police, after much hesitation, testified that the plaintiff's vehicles need supervision when none of the others do for this reason: "They have two units on the top runway of that transport, and each of those units weigh from 3500 to 4000 pounds. Should any one of those units get loose and come off the top of that runway, it would cause a more serious accident than two cars crashing together at an intersection." "Q. Yes, you are surmising, of course. None of them ever have, have they? A. No, but you can't tell when one of them will have it."
It is not improbable that when the city council fixed the fees in the ordinance in question, it had in mind the then existing legislative acts of New Mexico and California. In New Mexico the fee for each vehicle which was towed was fixed at $5.00 and in California as high as $15.00. See Ingels v. Morf,
"In this connection it must be borne in mind that *370 each of these interurban bus routes passes through numerous villages and townships and enters and passes through one or more cities other than Grand Rapids. Each of these municipalities has the same constitutional right as Grand Rapids to the reasonable control of their streets, alleys and public places. Anything like unrestricted license fees imposed by each of such municipalities would render the operation of interurban busses impossible. * * * It is self-evident that if there is little or no need for supervision or regulation in addition to that effected by the state and if the city streets are not subjected to an additional burden by interurban bus traffic, the justification for requiring a license at all is meager to say the least."
In that case testimony was introduced to show the number of commercial vehicles in the city as well as the total number of vehicles, showing that the interurban busses constituted only a small portion of the total. We do not have such evidence before us. There is testimony, however, that the main trouble given by plaintiff's vehicles is double parking, and hindering other vehicles from leaving the curb along which they are parked. This has some tendency to show that the business district in the city is crowded with vehicles. The testimony further shows that other trucks are supervised by the traffic officers and give the same trouble. This shows that at best the trouble given by the plaintiff's vehicles is but a part of the trouble given to the traffic officers, and that trouble has not been given by reason of the peculiar character of load, differing from loads on other trucks and trailers in connection with which no fees are exacted. True, the city attempted to justify the charge of the fees partially on the ground that inspection of its vehicles is perhaps necessary. Many cases hold that when the state has occupied a field of regulation, an ordinance must give way. See e.g. Bay Cities Transit Co. v. Los Angeles,
We should mention the fact that after oral argument and submission of this case our attention was called to section 72-121 Rev. St. 1931, providing that municipalities cannot make any charge for the free use of the street. That section was not called to our attention in the Kenosha case. Counsel for the city, in a supplemental brief, claim that it was repealed by section 72-103, passed in 1929. It is not necessary to pass upon the effect of these sections, and we do not do so, particularly since full argument has not been had thereon. Nor is it necessary to decide other points raised herein.
The judgment of the trial court is reversed with direction to enjoin the city from the further enforcement of the ordinance as to plaintiff, and for further proceedings, if any, not inconsistent herewith.
Reversed with directions.
RINER, Ch. J., and KIMBALL, J., concur. *372
Addendum
The city further contends that the second part of our opinion, which deals with the reasonableness of the fee exacted by the city, is wrong; that the city has the power to prohibit the vehicles of the plaintiff from entering the city, and that, accordingly, the amount of the fee cannot be questioned. We are somewhat surprised that this should be made a ground for the petition for rehearing. We called the attention of counsel in the case to Section 72-121, Rev. St. 1931, which, with a few limitations not applicable here, prohibits municipalities from exacting any fee from motor vehicles for the use of its streets. That section, if in force, of course effectually disposes of the contention here made. But counsel filed a supplementary brief, in which it was claimed that the section mentioned was repealed by Section 72-103, Rev. St. 1931. That section merely provides, impliedly, for "regulatory fees" chargeable by a municipality. We accordingly assumed that counsel had abandoned their claim that the city could charge a "prohibitory fee"; we could not see how they could do any less than that; and we were led to state in the original opinion that the fee "fixed in the ordinance is claimed to be a regulatory fee, under the police power, not a tax," and since such fee must be reasonable, we proceeded to consider that feature. Furthermore, this case involves interstate commerce, and it has been held by the Supreme Court of the United States that if, in such case, the fee exacted is merely a regulatory fee, it must be reasonable in amount, and not disproportionate to the expense involved. Ingels v. *374
Morf,
The city claims that the power to prohibit includes the power to make a regulation so oppressive that it may amount to prohibition, and that hence inquiry into the reasonableness of the fee exacted by the City of Cheyenne under the ordinance here involved cannot be made. The rule mentioned has been announced in a number of cases. 33 Am. Jur. 368; Peoples Taxicab Co. v. Wichita,
I. In the first place, it must be obvious that the contention that the city of Cheyenne, and hence every other city and town along the Lincoln Highway and along all other highways crossing the state, should have the power to effectually block and stop all intrastate as well as interstate traffic, is not one which would appeal to a court in the absence of specific legislation authorizing it. That was pointed out in North Star Line v. Grand Rapids,
"The inconvenience attendant upon the exercise, by every municipality in the state, of the power of excluding from its limits all unlicensed vehicles engaged in transporting goods or passengers for hire, is manifest. Its legitimate operation would require the owners of such vehicles to obtain licenses not only from the authorities of the place where their business had its headquarters, but also from every neighboring town into which their casual engagements might call them, or else to unload their vehicles at the border line. A general law having effects so burdensome or so absurd is not to be anticipated, and only unequivocal language could convince a court that such legislation was intended."
The court in White Oak Coal Co. v. Manchester,
"It is generally regarded as a reasonable exercise of such charter powers to lay a license tax upon vehicles *376 of residents of the municipality, and upon persons residing outside of the corporate limits who employ their vehicles in furtherance of business and occupations carried on within the city. But to levy such tax on vehicles of non-residents, whose business or pleasure casually carries them into or through the city, would be in derogation of their reserved right to use the highways of the Commonwealth and impose intolerable conditions upon the public, and lead to absurd results. As corrollary to these well settled rules, the grant by the legislature of municipal control over streets must be construed strictly in the interest of common right."
The Supreme Court of Illinois in City of Lincoln v. Dehner,
"If the owner or driver of a motor car such as that owned by appellee could be held up and made to pay a license fee or tax by the authorities of every city, town or village he visited or passed through, it would be impossible for anyone to use or operate a motor car for the purposes for which it was purchased or intended and ordinarily used. In any event, such ordinances, under present conditions as shown by the evidence would be so unreasonable that they would prohibit the natural and practical use of automobiles. Whatever the legislature intended or meant, it was never intended to permit such condition of affairs."
II. The position of the City of Cheyenne, claiming the same power as that possessed by the sovereign state, is rather extraordinary. It has often been asserted that the Legislature has supreme power over its highways and may regulate or entirely prohibit the use thereof by carriers, though that power has never been applied except in a limited manner. See notes, 87 A.L.R. 735, 81 A.L.R. 1415, 56 A.L.R. 1056. We assume that the absolute power, if it exists to the full extent claimed, is limited to intrastate traffic. Stephenson v. Binford,
"The provisions * * * give no authority to pass an ordinance prohibiting the running on the streets and alleys of said city of all vehicles propelled by steam. That clause only grants authority to regulate the vehicles described, when used for purposes mentioned therein. There is no statute to which our attention has been called, and we know of none, which in express words, confers upon the common council of cities the power to pass an ordinance prohibiting the running upon the streets and alleys of vehicles propelled by steam. It is not necessary, therefore, to decide as to the power of the legislature to grant such authority to municipal corporations * * * A highway is a public *379 way for the use of the public in general, for passage and traffic without distinction * * *. Incorporated cities and towns in this state have the power to regulate public travel upon the streets * * * and may have the power to prohibit the use of certain streets for certain purposes and by certain classes of vehicles; yet it is evident that they have no authority, under their implied powers, or under the general grant of power over the streets and alleys, to prohibit traction engines and other vehicles * * * from using all the streets."
It has often been asserted that the power to prohibit exists when a special use is sought to be made of the streets. 44 C.J. 931. The absolute right thus claimed has seldom, if ever, been exercised. The claim has frequently been made in connection with the regulation of jitneys. In some of the cases this absolute right has been denied. See Commonwealth v. Stodder, 2 Cush. (Mass.) 563. The Supreme Court of Pennsylvania, in Jitney Bus Ass'n. v. Wilkes-barre,
"As to the right of the municipality to regulate, in the interest of public safety, the running of jitneys, as well as all other traffic upon the public streets, we have no doubt. The only question in such case is whether the requirements of an ordinance for that purpose are reasonable, and not unduly burdensome. Regulation is not to be carried to the extent of prohibition. A jitney is an automobile, and by universal custom automobiles are permitted to use the streets of cities, as are other vehicles. The fact that the owners of jitneys derive a profit from their operation, makes no difference in their legal status. Much of the traffic upon the city streets is a matter of profit, directly or indirectly to those engaged therein. The public highways are for the use of those engaged in commerce or industrial pursuits, no less than for pleasure cars."
In Dent v. Oregon City,
"The right to use the public highways of the state by the ordinary and usual means of transportation is common to all members of the public without distinction, and extends to those engaged in the business of carrying passengers or freight for hire by such ordinary and usual means of transportation, as well as by individuals pursuing a strictly private business, subject to the power of the state, by legislative enactment, to impose reasonable and impartial regulations upon such use, which power may be delegated by the Legislature to the governing bodies of municipal corporations. * * * The foregoing charter provisions empowered Oregon City to impose reasonable regulations upon those using its streets, adopted in view of the local conditions and requirements respecting the streets, the travel, and the public safety. Those regulations cannot be carried to the extent of prohibition where the use made of the streets is strictly for travel and passage by the usual and ordinary means, but where the use made of the streets results in an occupancy or appropriation of the streets, or any portion thereof, for private purposes beyond that involved in traveling upon such streets by the usual and ordinary means, the municipality may not only regulate, but it may prohibit that special or peculiar use of its highways. * * * (citing cases). Some of the cases last cited contain statements to the effect that a municipality having power to regulate the use of its streets may entirely prohibit those engaged in the carriage of passengers or property for hire from using the streets within its boundaries for carrying on their business. That is true when the streets are used by such carriers as a stand for transacting business or soliciting patronage, stopping to let off or take on passengers, or any other use by which the streets, or a portion thereof, are occupied or appropriated to the exclusion of the remainder of the public, or are used in a manner that produces excessive wear upon the highways or endangers the public safety or which interferes with or obstructs the use of the streets as highways for the purpose of business or travel; but the *381 statements are inaccurate as applied to the use of such streets by common carriers strictly as thoroughfares. A common carrier of passengers or freight by means of vehicles in ordinary use has an equal right with all other citizens to use the public highways for purposes of traffic and passage, subject to reasonable regulations, and the exercise of that right cannot be entirely prohibited without express legislative authority, and then only in exceptional circumstances."
The first part of this quotation was accepted as stating the law in Omaha Council Bluffs Street Ry. Co. v. Omaha, 114 Nebr. 483, 208 N.W. 123. See also State v. Gish,
Ordinances of the city relating to motor vehicles must not be in conflict with the laws of the state. 42 C.J. 618; 5 Am. Jur. 557. The plaintiff in this case has been licensed under these laws and in addition pays the tax for the use of the highways. It is permitted by the state to run over these highways. That is inconsistent with the power of the city to prohibit their use. In Walker v. Comm.,
"A public road is a way open to all the people, without distinction, for passage and repassage at their pleasure. * * * * This being the established nature of a public road, the county court would have no power to *382 exclude any members of the public from its reasonable use without legislative authority. So far as we are advised, the legislature not only has not forbidden the use of motor vehicles, without regard to weight or load, upon public highways, but has authorized their use by levying a tax upon them. As stated heretofore, the defendant has paid this tax. The legislature, as the constitutional representative of the public, has the power to levy any reasonable condition upon members of the public for their use of the public roads; but the county court, without express authority, has not such power."
In Chicago Motor Coach Co. v. Chicago,
III. As already stated, the city claims the right to charge a fee beyond that necessary to cover the expense of administration. If that is true, then the amount over and above such expense would be a tax, or at least in the nature of a tax. St. Louis Poster Co. v. St. Louis, supra. If the city has the power to exact a tax, then the incidental power to prohibit might exist, if the tax should not be paid. So we shall turn to the power of taxation. The rule already mentioned that the power of a municipality must be found in a statute applies in such case. It is stated in 61 C.J. 84 that "the power of a political subdivision to levy taxes must be expressly and distinctly granted." In 44 C.J. 1262 it is stated that the power to tax "is not possessed by a *383 municipal corporation unless it has been plainly and unmistakably granted to it either in express terms or by necessary implication." In 37 C.J. 179 we read that "the power of a municipal corporation to impose a license tax for revenue purposes exists only where it is plainly granted." McQuillin on Municipal Corporations, supra, tells us in Section 1087 that since "the power to tax and license as a means of raising revenue is not inherent in municipal corporations, it follows that such power must be expressly conferred in plain terms, or it must arise by necessary implication from powers expressly granted. The exercise of the authority must be within the clear scope of the language of the law conferring the power. Grants of this nature are usually strictly construed against the exercise of the power and in favor of the public."
We find no power to levy a tax upon the vehicles of plaintiff by reason of the wear on the street. If, then, the city has the power to levy a tax, it must be under its power to license. That power does not exist under the general welfare clause. 2 Dillon, Municipal Corporations, (5th ed.) 637. Hence it must exist, if it exists at all, under the power already mentioned to levy and collect a tax upon vehicles "used within the city for pay." The right thus given is in conjunction with the right to levy and collect taxes on auctioneers, druggists, pawnbrokers and other business. It would appear to be an occupation tax. And it is shown in note, 86 A.L.R. 920, that such tax cannot be levied unless the business is carried on within the city, not even with the consent of the legislature. A number of cases have dealt with situations in which a municipality has imposed a license tax upon vehicles engaged in traffic between cities within the state. A note on the subject will be found in 31 A.L.R. 594, and see for further cases State v. Gamelin (Vt.)
"But when a power to tax for revenue is claimed, something more than mere temporary presence in the borough must be shown. It must appear that the business to be taxed is carried on in the municipality, and occasional passage or transportation into, through or out of the borough, incidental to the pursuit of a business elsewhere established, cannot fairly be regarded as localizing the business there so as to bring it within the taxing power granted by the statute now in question."
In Bennett v. Birmingham, 31 Pa. St. 15, a borough undertook to collect a license tax from those who carried goods through the borough. The court held that this could not be done. In City of Charles v. Nolle,
We have examined the authorities which are claimed to hold contrary to the foregoing cases. Even though they may be said to somewhat modify the results claimed in the cases already analyzed, the fundamental *386
rule therein announced cannot be said to be overturned — that the municipality has no power to exact a license tax when the business taxed is not carried on within it or within the limits within which it may, under statute, exercise its jurisdiction. Comm. v. Beck,
This must be so much more true in view of the fact that the plaintiff in this case is solely engaged in interstate traffic. In People v. Horton Lines,
IV. And finally, if it is not already clear that the *388
contention of the city herein is not well founded, it will be made so by turning to section 72-103, Rev. St. 1931, which, in so far as pertinent here, provides that "the state registration and county registration fees imposed by this article upon motor vehicles, motor trucks, passenger cars, motorcycles, and trailers, as defined in section 72-101, and upon the owners thereof by reason of such ownership, shall be in lieu of all other taxes, except such fees as may be imposed by municipalities under regulatory ordinances." No fee, accordingly, except at most one which is regulatory, and which, accordingly, must not be disproportionate to the expense involved, may be charged by a municipality upon motor vehicles. We have found some cases which have construed an almost identical statute, and which dispose of every contention made herein. In Parker v. City of Silverton,
"The public streets within the limits of an incorporated city or town are a part of the public highways of the state and belong to the whole people of the state. They are maintained primarily for the benefit of the people at large. Persons residing in the city or town have an equal, but not a superior, right to the use of the streets over those who reside elsewhere. All alike must make a reasonable use of them so as not unduly or unreasonably to interfere with the common right possessed equally by all. * * * Plaintiff neither has nor maintains a terminal stage at Silverton, and in order for him to operate in conformity to the ordinance in question in carrying passengers between Salem and Silverton he will be required to pay an annual license fee of $300 per annum for each auto stage used in that connection. It is manifest that this is not the imposition of a charge for mere regulatory purposes only, but is a burden intended to be imposed for revenue purposes, and is therefore a tax, under the doctrines announced *389
in Ellis v. Frazier,
The same statute was also construed in Ex parte Fine,
We must, accordingly, hold that the city of Cheyenne has neither the power to tax nor the power to prohibit which it claims herein. We see no reason for a rehearing herein, and it is accordingly denied.
Rehearing denied.
RINER, Ch. J., and KIMBALL, J., concur. *390