Syllabus by the Court.
The
effect of section 8, art. 4, c. 173, Sess. Laws 1915, was to
withdraw from local authorities generally the power to pass
enforce, or maintain any ordinance, rule, or regulation
imposing a pecuniary charge in the nature of a tax, license
or permit for the use of the public highways by motor
vehicles registered conformably therewith.
Section
581, Rev. Laws 1910, empowers municipal authorities to impose
a license tax for revenue, as distinguished from a license
fee collected on account of necessary police regulation.
The
character of a city ordinance is to be determined primarily
by all of its provisions, and where such ordinance
purporting to be an exercise of the regulatory municipal
police power, imposes a pecuniary charge, excessively
disproportionate to the sum necessary to cover the expense of
the municipality in the way of licensing, inspecting, and
supervising an occupation, upon the payment of which one is
authorized, as of right, to pursue the occupation, such
charge is a tax for revenue, and not an exaction for the
purpose of regulation.
A
municipal ordinance attempting to impose an occupation tax on
the owners or users of motor vehicles operated over and upon
the public highways, though for hire, is in contravention of
the provisions of the General Highway Act of 1915, and void.
Certain
provisions of an ordinance of the city of Muskogee entitled
"An ordinance providing for an occupation tax upon all
persons engaged in the business of operating 'jitney
busses,' and for the regulation and control of such
business," examined, and held to impose a tax
for revenue, in contravention of the provisions of the
General Highway Act of 1915.
Equity
will restrain by injunction proceedings to enforce a
municipal ordinance attempting to impose an occupation tax
upon the owners or users of motor vehicles run upon the
public highways who have complied with the requirements of
the General Highway Law of 1915, where such proceedings would
destroy property rights and inflict irreparable injury.
The
remedy afforded by the provisions of section 7, c. 107, Sess.
Laws 1915, is not intended to cover cases where taxes for
revenue are illegally attempted to be imposed and
extortionately collected by municipal authorities from which
all power to enact or enforce legislation relative to such
taxation has been withdrawn.
Commissioners'
Opinion, Division No. 3. Error from District Court, Muskogee
County; Chas. G. Watts, Judge.
Action
for injunction by C. M. Wilkins against the City of Muskogee
and others. Judgment for plaintiff, and defendants bring
error. Affirmed.
BLEAKMORE
C.
This
proceeding in error is brought to review a judgment of the
district court of Muskogee county enjoining the city of
Muskogee and its officers from enforcing certain provisions
of an ordinance imposing a monthly charge of $25 as an
occupation tax upon the owner, lessee, or possessor of each
motor vehicle carrying passengers for hire over a fixed route
in the city.
The
title and those provisions of the ordinance involved deemed
pertinent to the present inquiry are as follows:
"An ordinance providing for an occupation tax upon all
persons engaged in the business of operating 'jitney
busses,' and for the regulation and control of such
business.
Be it ordained by the council of the city of Muskogee,
Oklahoma:
Section. 1. It shall be unlawful for any person, firm or
corporation, either as principal, agent or employé, to
operate within the corporate limits of the city of Muskogee
any 'jitney bus,' or to act as driver or chauffeur
thereof, without complying with the provisions of this
ordinance, applying to such ownership, operation or to the
position of driver or chauffeur thereof, or any of the
regulations herein ordained.
Sec. 2. That a 'jitney bus,' as the term is used in
this ordinance, is hereby defined to be any automobile
operated over fixed routes within the city for the purpose of
carrying passengers for hire.
Sec. 3. It shall be unlawful for any person, firm or
corporation, either as owner, lessee or possessor in any
right, to engage in the business of operating a 'jitney
bus' without first obtaining a license therefor from the
city clerk and complying with the following requirements:
First. The payment of an occupation tax, which tax is hereby
ordained to be as follows: For each 'jitney bus'
operated by such person the sum of twenty-five ($25.00)
dollars per month for each month such bus is operated. Such
tax shall be payable monthly in advance, and no license shall
be issued prior to the payment thereof. Second. Said license
shall be renewed monthly by a payment of said monthly tax,
and an indorsement by the city clerk upon said license of the
renewal thereof for the following month."
The
trial court found, among other things:
"That the plaintiff is engaged in operating a number of
automobiles or motor vehicles, commonly known as 'jitney
busses,' along designated routes and terminals and with
regular schedules for hire in the city of Muskogee, and that
he has been so engaged for more than one year last past.
The court further finds that said plaintiff has invested in
said motor vehicles a large amount of money, and that he
operates said motor vehicles by means of certain drivers, and
that the business consists of carrying passengers to and from
different parts of the city of Muskogee for a stipulated
price.
The court further finds that plaintiff has complied with the
statutes of the state of Oklahoma governing and regulating
the licensing and taxing of automobiles, more particularly
known as the General Highway Law, being chapter 173, art. 4,
of the Session Laws of the Legislature of the state of
Oklahoma of 1915; that he has paid the registration fees for
each motor vehicle owned by him as required by said act; and
that the department of highways of the state of Oklahoma has
issued him a certificate of registration and a number plate
which he has at all times displayed on the rear of the
automobiles owned and operated by him. ***
The court further finds from the evidence that said
ordinance, in so far as it attempts to require the payment of
the sum of $25 per month per car, is excessive and
confiscatory of the business of the plaintiff and
confiscatory of the business of operating jitney busses in
the city of Muskogee, Okl., and if enforced will compel the
plaintiff and all other persons to quit the operating of
jitney busses in the city of Muskogee.
It is therefore considered, adjudged, ordered, and decreed by
the court that the defendants, and each of them, be and they
are hereby perpetually restrained and enjoined from
enforcing, or attempting to enforce, that provision of said
ordinance providing for the payment, in advance, of the sum
of $25 per month per car for each jitney bus operated in the
city of Muskogee. To which order the defendants and each of
them except."
The
theory upon which the city seeks to maintain the ordinance in
question appears by the following excerpt from its brief:
"The power to provide by ordinance for an occupation tax
such as that prescribed by ordinance of the city of Muskogee,
questioned in this cause, was granted by the Legislature to
cities by section 581 of the Revised Laws of Oklahoma 1910,
wherein it is provided: 'The city council shall have
authority to levy and collect a license tax on *** drays,
hacks, carriages, omnibuses, carts, wagons and other vehicles
used in the city for pay.'
We think that it cannot be questioned that the tax in this
case is levied upon the occupation of operating cars for hire
and is not a tax upon the right to operate an automobile or
to run it over the streets of the city."
By the
General Highway Law (Sess. Laws 1915, c. 173, art. 4) it is
provided:
"Sec. 3. *** The registration fees imposed by this
article upon motor vehicles, other than those of
manufacturers and dealers, shall be in lieu of all taxes
general or local, to which motor vehicles may be subject as
personal property under the laws of this state. ***
Sec. 8. Subject to the express provisions of this article,
local authorities shall have no power to pass, enforce or
maintain any ordinance, rule or regulation requiring from any
owner to whom this article is applicable any tax, fee,
license or permit for the free use of the public highways, or
excluding or prohibiting any motor vehicle registered in
compliance with this article from the free use of the public
highways or the accessories used thereon, and no ordinance,
rule
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