City of Buffalo v. Lewis

• Decision Date: 19 May 1908
• Parties: CITY OF BUFFALO v. LEWIS.
• Court: New York Court of Appeals Court of Appeals

192 N.Y. 193

84 N.E. 809

CITY OF BUFFALO

v.LEWIS.

Court of Appeals of New York.

May 19, 1908.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the city of Buffalo against Dai H. Lewis to recover a penalty. From an order of the Appellate Division (123 App. Div. 163,108 N. Y. Supp. 450) affirming an interlocutory judgment of the Municipal Court of Buffalo sustaining a demurrer to the complaint, plaintiffs appeal; by permission certain questions being certified. Affirmed, and questions answered.Louis E. Desbecker, Corp. Counsel (William S. Rann, of counsel), for appellant.

Daniel J. Kenefick, for respondent.

CHASE, J.

By section 17 of the charter of the city of Buffalo (chapter 105, p. 136, Laws 1891) it is provided: ‘Sec. 17. The common council shall from time to time enact ordinances * * * (6) to license and regulate cartmen, porters, owners and drivers of all vehicles used for the transportation of passengers or property for hire, and to fix the rates of compensation to be taken by them; to license and regulate plumbers; * * * to prescribe the terms and conditions on which licenses shall be granted. * * *’

By chapter 31, p. 83, Laws 1904, which became a law March 1, 1904, there was added to said subdivision of said section the following: ‘To impose and levy a tax upon the owner or owners of hackney carriages, sleighs, cabs, coupés, private carriages, barouches, buggies, wagons, omnibuses, carts, drays, baggage wagons, automobiles, motor vehicles, bicyles, tricyles, and similar vehicles, or any other vehicle, for the privilege of operating, driving or propelling the same along or upon the public streets, avenues, highways, and other public places in the city of Buffalo; to fix the amount of such tax and to prohibit the use of the public streets, highways, avenues or other public places of the city by the owner or owners, or driver or drivers, of any such vehicle in the event of any tax so imposed not being paid, and to fix and provide such penalty or penalties as it shall deem proper for a violation of any such ordinances.’

The motor vehicle laws (chapter 538, p. 1311, Laws 1904) became a law May 3, 1904, and it provides:

‘Section 1. * * * Except as otherwise herein provided, it shall be controlling, * * * (2) On their (motor vehicles) use of the public highways. * * *’

‘Sec. 4. * * * (3) Local ordinances prohibited.-Subject to the provisions of this act, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring of any owner or operator of a motor vehicle any license or permit to use the public highways, or excluding or prohibiting any motor vehicle whose owner has complied with section two of this act from the free use of such highways, except such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages, or except as herein provided, in any way affecting the registration or numbering of motor vehicles or prescribing a slower rate of speed than herein specified at which such vehicles may be operated, or the use of the public highways, contrary to or inconsistent with the provisions of this act; and all such ordinances, rules or regulations now in force are hereby declared to be of no validity or effect. * * *’

‘Sec. 7. All acts and parts of acts inconsistent herewith or contrary hereto are, so far as they are inconsistent or contrary, hereby repealed.’

On March 18, 1907, an ordinance was duly enacted by the common council of the city of Buffalo as follows: ‘Sec. 27. The owner and owners of every automobile or other motor vehicle and of any vehicle propelled by any power other than muscular power, excepting such motor vehicles as run only upon rails or tracks, and (excepting motor cycles, motor bicycles, traction engines, road rollers, bicycles or tricycles) operated or propelled within the city of Buffalo shall be required to pay into the city treasury an annual tax of $5 for each such automobile, motor vehicle or vehicles so propelled by other than muscular power. The tax hereby imposed shall become due on the 1st day of May of each year and shall be paid on or before said day to the city treasurer, who shall receive and receipt for the same and who shall place all sums so received to the credit of a fund for the repair of the paved streets, avenues, alleys, highways and other public places of the city. * * * Every person liable to the payment of any tax imposed in pursuance of this section, who shall refuse or neglect to pay such tax within one month after the same shall become due and payable shall be liable to a penalty of $10 for each such tax so remaining unpaid in addition to the amount of such tax. This section shall not apply to vehicles owned by nonresidents of the city.’

The defendant is a resident of the city of Buffalo, and at the times mentioned in the complaint was and now is the owner of an automobile. He duly complied with the motor vehicle law, and prior to and after May 1, 1907, had operated and propelled said automobile within the city of Buffalo. He neglected and refused to pay the alleged tax imposed by said ordinance, and after more than one month had elapsed after said alleged tax became due and payable, as provided by said ordinance, this action was commenced to recover the penalty of $15, as also in said ordinance provided. The defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained. On an appeal to the Appellate Division of the Supreme Court the interlocutory judgment was affirmed. An appeal to this court was allowed, and the following questions certified to us: ‘(1) Did the common council of Buffalo, subsequent to the enactment of chapter 31, Laws 1904, and Motor Vehicle Law (chapter 538, Laws 1904) have authority to pass the ordinance set forth in the complaint in this action? (2) Does the complaint in this action state facts sufficient to constitute a cause of action?’

Automobiles have but recently come into common use. Within the last few years their use has not only greatly increased, but tours therewith have been extended to long distances, and through many municipalities. Good judgment has not always accompanied their use, and the rights of others have sometimes been overlooked by their owners or drivers, and more or less opposition to the streets and highways being occupied by automobiles has arisen. The opposition to such use has frequently found expression in local restrictive rules and ordinances. Such local rules and ordinances existing prior to the enactment of the motor vehicle law were not only dissimilar and conflicting, but sometimes difficult to understand. The necessity for a uniform law throughout the state was apparent, and the motor...