City of Des Moines v. Bolton

• Decision Date: 04 April 1905
• Parties: CITY OF DES MOINES v. BOLTON.
• Court: Iowa Supreme Court

128 Iowa 108

102 N.W. 1045

CITY OF DES MOINES

v.BOLTON.

Supreme Court of Iowa.

April 4, 1905.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Prosecution for the violation of an ordinance. The trial court held the ordinance unconstitutional, and discharged the defendant. The city appeals. Reversed.W. H. Bremner, W. H. Cohen, and R. B. Alberson, for appellant.

Crockett, Gillispie & Bannister, for appellee.

SHERWIN, C. J.

This case was submitted to the court on an agreed statement of facts, showing that the defendant was engaged in the transportation of property for hire without having obtained a license therefor, under the following conditions: The defendant owns “and maintains a barn, which is his own property, used exclusively by defendant for the care, feeding, and stabling of his horses, storing feed therefor, and the housing of his wagons. That defendant also owns and maintains an office, where he receives orders for the employment of his wagons. That said wagon No. 11, when not engaged in loading, hauling, or unloading freight or goods to or from a job of work, does not stand or remain upon the streets or public places of the city of Des Moines, but uses the same wholly and exclusively as a highway in passing from place to place in said city, and loading and unloading goods, and in no other manner. That said wagon No. 11 does not solicit custom upon the streets or public places of said city, and custom is not solicited therefor upon the streets, or in or about hotels, theaters, depots, trains, or other public places of said city. That defendant sends said wagon No. 11 from his said barn to answer and fill calls and orders therefor received at his said office, and not otherwise, and, when said wagon is not so engaged, it stands in the private barn of defendant. That said wagon is kept and used only as herein stated, and in no other manner whatever. That defendant owns and operates nine wagons in the same manner as wagon No. 11, including in said number the said wagon No. 11.” The ordinance on which the prosecution was based, and which was held void because not of uniform operation, is in the following language, so far as material: “Every person, firm or corporation keeping and using any cart, wagon, street sprinklers, dray, coach, hack, omnibus, hackney wagon, herdic, express wagon or other conveyance for carrying persons or property for hire, shall pay a license fee or tax and procure a license as herein provided, and no person shall drive or use or cause to be driven, or used, any such conveyance or vehicle on the streets of the city of Des Moines, in carrying persons or property for hire, without paying such license fee or tax and procuring such license. * * * This ordinance shall not be construed as applying to carriages and other vehicles kept and used strictly and entirely in ordinary livery business, and which do not stand or remain upon the streets and public places for the purpose of soliciting custom, and for which custom is not solicited upon the streets or in or about hotels, theaters, depots, trains or other public places.” Section 754 of the Code gives cities the power to “regulate, license and tax all carts, wagons, street sprinklers, drays, coaches, hacks, omnibuses, and every description of conveyance kept for hire.” The vehicles specifically designated as subject to a license and tax by the ordinance are practically the same as those designated by the statute, but it will be noticed that the ordinance does not follow the precise language of the statute in referring to other vehicles, for it provides that all other conveyances kept and used “for conveying persons or property for hire shall” pay the tax, while the general language of the statute is that a license and tax may be imposed on “every description of conveyance kept for hire.” The appellee contends that the statute provides only for a tax on vehicles which are let out or rented, and that the ordinance goes beyond the power thus granted, by requiring a tax on such as are used “for carrying persons or property” while the vehicle so used is under the exclusive control of the owner, as it was in the instant case. There are two reasons why the appellee's contention cannot be sustained: The statute specifically authorizes cities to license and tax drays, carts, hacks, coaches, etc., all of which are commonly understood to be vehicles which are ordinarily used for the transportation of persons and property for hire; and, to bring such vehicles within the scope of the statute, it is only necessary to show that they are so used in fact. The provision permitting the city to license and tax every description of conveyance kept for hire was intended to so enlarge the power of the city that it may impose such tax on all vehicles kept for hire; but, if this language be held to apply only to the vehicles named in the statute, it is apparent that the appellee's construction...