City of Lincoln v. Gerard

• Decision Date: 16 April 1928
• Docket Number: No. 18649.,18649.
• Citation: 329 Ill. 501,160 N.E. 839
• Parties: CITY OF LINCOLN v. GERARD.
• Court: Illinois Supreme Court

329 Ill. 501

160 N.E. 839

CITY OF LINCOLN

v.GERARD.

No. 18649.

Supreme Court of Illinois.

Feb. 24, 1928.

Rehearing Denied April 16, 1928.

Action of debt by the City of Lincoln against John B. Gerard for the violation of a city wheel tax ordinance. From a judgment sustaining demurrers to the declaration, plaintiff appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, Logan County; Frank Lindley, judge.

Uri Kissinger, City Atty., and Peter Murphy, both of Lincoln, for appellant.

Harold F. Trapp, of Lincoln, for appellee.

HEARD, C. J.

Appellant, the city of Lincoln, brought an action of debt in the circuit court of Logan county against John B. Gerard, appellee, and filed therein its declaration consisting of five counts, each of which charged an alleged violation of a city ordinance of the city of Lincoln. Appellee filed a general and a special demurrer to the declaration, which were sustained by the court. Appellant elected to stand by its declaration, and the court thereupon entered judgment in favor of the defendant that the plaintiff take nothing by its writ. From that judgment appellant prayed an appeal to this court, which was allowed, the circuit court certifying that the validity and constitutionality of an ordinance was involved, and that the public interest required that the appeal be taken directly to this court.

Section 1 of the ordinance provides as follows:

‘That every owner of a wagon, motor vehicle, motor bicycle, or other vehicle, who, if a natural person or persons, resides within the corporate limits of the city of Lincoln, Ill., or if a firm whose members reside within the corporate limits of said city of Lincoln, or if a corporation that maintains and conducts its principal place of business in Illinois within the corporate limits of said city of Lincoln, shall be required to pay each year to the city of Lincoln, Ill., a tax or license fee for the use of such wagon, motor vehicle, motor bicycle, or other vehicle used within said city of Lincoln.’

It is contended by appellee that the ordinance in this case is purely a revenue measure seeking to enforce payment of a tax upon property, and that the constitution of Illinois permits a tax upon property only upon a valuation fixed, as provided by general law, for the valuation of property for assessment of taxes. This section of the ordinance is the same as the ordinance in question in Roe v. City of Jacksonville, 319 Ill. 215, 149 N. E. 812, where it was held that the right or privilege of using vehicles on the streets of a city is a proper subject of license taxation. This has long been the settled law of this state. Gartside v. Cith of East St. Louis, 43 Ill. 47. The ordinance in question is not an ordinance levying a property tax, but is what is known as a ‘wheel tax ordinance,’ which is within the power of a city to enact. Heartt v. Village of Downers Grove, 278 Ill. 92, 115 N. E. 869;Harder's Storage Co. v. City of Chicago, 235 Ill. 58, 85 N. E. 245,14 Ann. Cas. 536;Harder v. City of Chicago, 235 Ill. 294, 85 N. E. 255;Robbins v. City of Herrin, 293 Ill. 133, 127 N. E. 353;Parsons v. City of Herrin, 293 Ill. 218, 127 N. E. 356.

It is contended by appellee that the ordinance in question does not tax the privilege of using the vehicle upon the public streets, but imposes a tax upon all use of the vehicle in the city, and that this is in violation of the Constitution of the state. The penalty clause of this ordinance is as follows:

‘That any person, firm or corporation violating any of the provisions of this ordinance shall be fined not less than five ($5) dollars nor more than one hundred ($100) dollars for each and every offense, and each day any wagon or vehicle is used upon the streets, avenues, or alleys of said city without having been duly licensed according to the provisions of this...