City of St. Louis v. St. Louis Transfer Co.

• Decision Date: 03 March 1914
• Docket Number: No. 16,665.,16,665.
• Citation: 165 S.W. 1077,256 Mo. 476
• Parties: CITY OF ST. LOUIS v. ST. LOUIS TRANSFER CO.
• Court: Missouri Supreme Court

165 S.W. 1077

256 Mo. 476

CITY OF ST. LOUIS v. ST. LOUIS TRANSFER CO.

No. 16,665.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

Rehearing Denied April 2, 1914.

1. MUNICIPAL CORPORATIONS (§ 703)—ORDINANCES—USE OF STREETS—REGULATION OF WIDTH OF TIRES.

An ordinance regulating the width of tires to be used on all kinds of vehicles used on the streets of a city is not unreasonable.

2. MUNICIPAL CORPORATIONS (§ 703)—ORDINANCES—USE OF STREETS—CONFORMITY TO CHARTER—REGULATION OF WIDTH OF TIRES.

A proviso in an ordinance regulating the width of tires for all vehicles used on the streets of a city is in excess of a power given by the charter to regulate the width of tires for vehicles for heavy transportation, and is invalid, even though the charter empowers the city to regulate the use of the streets.

3. MUNICIPAL CORPORATIONS (§ 111)—ORDINANCES—VALIDITY—EFFECT OF PARTIAL INVALIDITY.

In an ordinance imposing a license tax upon vehicles within a city, followed by a proviso requiring tires of specified width on the various kinds of vehicles, which proviso was invalid because not authorized by the charter, the two portions of the ordinance are readily separable from each other, and not so connected as to indicate that the license provisions would not have been adopted without the proviso, and therefore those provisions are not affected by the invalidity of the proviso.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by the City of St. Louis against the St. Louis Transfer Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Randolph Laughlin, of St. Louis, for appellant. Wm. E. Baird and Truman P. Young, both of St. Louis, for respondent.

GRAVES, J.

This is an action by the city of St. Louis to recover from the defendant corporation certain license taxes, upon vehicles operated by it in the city of St. Louis, for the years 1905, 1906, 1907, 1908, 1909, and 1910. The petition contains a count for each year. The first count of the petition is thus outlined in defendant's abstract:

"The first count of the petition alleges the incorporation of the parties, plaintiff and defendant; that the defendant at all times mentioned in the petition owned and used in the streets and public highways of the plaintiff the number and kinds of vehicles therein stated; that there was at all said times `in full force and effect' an ordinance of the city of St. Louis, known as section 1708 of a revising ordinance of said city, styled `The Municipal Code of St. Louis,' approved April 3, 1900; that by the terms of said ordinance it was provided that there should be annually levied and collected a license tax upon all kinds of vehicles used in the streets or public ways of the city, the following sums, to wit: On each wagon drawn by eight or more horses, $30.00. On each wagon drawn by six horses, $15.00. On each omnibus, drag, tallyho coach, lighted vehicle or stage-coach drawn by four horses, $10.00. On each wagon drawn by three horses, $7.00. On each omnibus or wagon drawn by two horses, $5.00. On each wagon or cart drawn by one horse, $2.00. On each hack or hackney carriage drawn by two horses, $5.00. On each barouche, drag, coach, coupe, rockaway, surrey, wagon, landau, or other vehicle drawn by two horses, $3.00. On each cab drawn by one horse, $2.50. On each barouche drawn by one horse, $2.50. On each four-passenger park wagon drawn by one horse, $2.00. On each buggy, $1.50. On each driving cart or sulky, $1.50. On each bicycle, tricycle, or velocipede, $1.00. On each vehicle not specifically mentioned, $1.50. That the defendant, during the year 1905, was the owner of and did use in the streets and public ways of the city the following described vehicles, to wit: 4 wagons each drawn by one horse, 125 wagons drawn by two horses, 4 wagons each drawn by three horses, 1 wagon drawn by four horses. That by reason of the facts aforesaid and by virtue of the terms of said ordinance it became and was the duty of the defendant to pay to the city of St. Louis license taxes as follows: On said four one-horse wagons at the rate of $2.00 each, making a total of $8.00. On said 125 two-horse wagons at the rate of $5.00 each, making a total of $625.00. On said four three-horse wagons, at the rate of $7.00 each, making a total of $28.00. On said one four-horse wagon, $15.00. Making an aggregate amount of $676.00, which became due and payable from the defendant to the plaintiff for the license taxes on such vehicles for the year 1905. That demand was made of the defendant by the license collector of the city of St. Louis to pay the said sum, but that no part thereof has been paid. Wherefore plaintiff prays judgment against defendant for the sum of six hundred and seventy-six dollars together with interest and costs."

The abstract before us alleges that the other five counts were in the same form and prayed judgment for the same sum in each, but the years mentioned were different. To this petition a general demurrer was filed and overruled, and, the defendant refusing to plead further, judgment was entered for the plaintiff for the sum of $4,182.63, from which said judgment the defendant has appealed. The city of St. Louis being a party, the jurisdiction is lodged here notwithstanding the amount involved.

The turning point in the case is the validity or invalidity of the ordinance pleaded. Other incidental questions are suggested, which with the vital question will be noted in the course of the opinion.

I. At some time prior to April 3, 1900 (the counsel for defendant says in 1898) the city of St. Louis passed what counsel denominates the "Wide Tire Ordinance." Counsel for defendant further gives us the information that on April 3, 1900, the legislative branch of the city government of the city of St. Louis "passed an ordinance number 19,991, entitled `Ordinance in Revision of the General Ordinances,' which contains nearly 2,500 sections, and, among others, section 1708 of article 2 of chapter 23 of said ordinance. That this section 1708 embodied and was the Wide Tire Ordinance of 1898."

In the view we take of the law of this case, we should set out said section 1708 in full. It reads:

"Sec. 1708. License Tax on * * * regulations. There shall be annually levied and collected a license tax upon all kinds of vehicles, including bicycles, tricycles, and velocipedes, used in the streets or public ways of the city for trade traffic, pleasure or any other purpose, public or private, except vehicles for pleasure, owned and used by nonresidents of the city, and bicycles, tricycles and velocipedes owned and used solely by children under twelve years of age, the following sums, to wit: On each wagon or truck used for hauling boilers, engines, cable ropes, safes or stone, and drawn by eight or more horses, thirty dollars; on each wagon drawn by six horses, twelve dollars; on each wagon drawn by four horses, fifteen dollars; on each omnibus drawn by four horses, ten dollars; on each stagecoach drawn by four horses, ten dollars; on each drag, tallyho, coach or lighted vehicle drawn by four horses, ten dollars; on each wagon drawn by three horses, seven dollars; on each omnibus drawn by two horses, five dollars; on each wagon drawn by two horses, five dollars; on each wagon or cart drawn by one horse, two dollars; on each hack or hackney carriage drawn by two horses, five dollars; on each barouche, drag, coach, coupe, rockaway, surrey, wagon, landau or other like vehicle drawn by two horses, three dollars; on each cab drawn by one horse, two dollars and fifty cents; on each barouche drawn by one horse, two dollars and fifty cents; on each four-passenger surrey drawn by one horse, two dollars; on each four-passenger park wagon drawn by one horse, two dollars; on each buggy, one dollar and fifty cents; on each driving cart or sulky, one dollar and fifty cents; on each bicycle, tricycle or velocipede, one dollar; on each vehicle not specifically mentioned, one dollar and fifty cents; provided, that from and after the first day of January, eighteen hundred and ninety-nine, no vehicle of any kind or description shall be used on the streets of this city for any purpose whatever unless all the wheels of such vehicle shall be constructed with a width of tire corresponding to the size of an axle on the following scale, to wit:

"Iron or Steel Axles. Vehicles having axles of iron or steel, the wheel shall have width of tires, as follows, to wit: If the axle is of a width or thickness or diameter of one and one-fourth inches, the tires must be at least one and one-fourth inches wide; if the axle is a width or thickness or diameter of one and one-half inches, the tire must be at least one and three-fourths inches wide; if the axle is of a width or thickness or diameter of one and five-eighths inches, the tire must be at least two inches wide; if the axle is of a width or thickness or diameter of one and three-fourths inches, the tire must be at least two and one-fourth inches wide; if the axle is of a width or thickness or diameter of one and seven-eighths inches the tire must be at least two and one-half inches wide; if the axle is of a width or thickness or diameter of two inches, the tire must be at least two and three-fourths inches wide; if the axle is of a width or thickness or diameter of two and one-eighth inches, the tire must be at least three inches wide; if the axle is of a width or thickness or diameter of two and one-fourth inches, the tire must be at least three and one-half inches wide; if the axle is of a width or thickness or diameter of two and one-half inches, the tire must be at least four inches wide; if the axle is of a width or thickness or diameter of two and three-fourths inches, the tire must be at least four and one-half inches wide; if the axle is of a width or thickness or diameter of three inches, the tire must be at least five inches wide; if the axle is of a width or thickness or...