City of Terre Haute v. Kersey

• Decision Date: 06 June 1902
• Parties: CITY OF TERRE HAUTE v. KERSEY et al.
• Court: Indiana Supreme Court

159 Ind. 300
64 N.E. 469

CITY OF TERRE HAUTE
v.
KERSEY et al.¹

Supreme Court of Indiana.

June 6, 1902.

Appeal from superior court, Vigo county; S. M. McGregor, Special Judge.

Suit for injunction by William P. Kersey and others against the city of Terre Haute. From a judgment for plaintiffs, defendant appeals. Reversed.

Peter M. Foley, for appellant. John S. Jordan and Stimson & Condit, for appellees.

JORDAN, J.

This appeal brings before us for review an ordinance adopted and caused to be published by the common council of the city of Terre Haute, Ind., on January 7, 1899, imposing a license tax to be paid by the owners of certain vehicles used on the public streets of said city. The action was instituted in the lower court by William P. Kersey, in conjunction with his co-appellees herein, 6 in number, suing for themselves and in behalf of 5,000 others similarly situated, to enjoin appellant from enforcing against them the ordinance in controversy, for the reason that the same was wholly void, at least so far as the same concerned them. The complaint alleges and discloses that appellees are citizens of the United States, and taxpayers residing within the city of Terre Haute, and are the owners of various kinds of vehicles kept by them for their own use, health, pleasure, and profit, and not for the purpose of carrying goods and passengers for hire, or for the purpose of renting the same, but that such vehicles are kept for their own private use; that all of said vehicles owned by them on April 1, 1898, had been duly listed and assessed for taxation under the general revenue laws of the state of Indiana. It is alleged that the use of the vehicles owned by appellees is necessary to their health and business, and that it is impossible to use them without entering upon and driving along and over the streets of said city; that the value

[64 N.E. 470]

of said vehicles varies from 50 cents to $500. It is charged that the ordinance in question is not uniform in its operation upon all persons in the same class, and that certain kinds of vehicles used upon the streets of the city are exempted from its operation, and that the ordinance is designed as a revenue measure, and would produce, if enforced, a revenue of $15,000; that it is not intended to correct any evil or abuse, or to preserve the peace, good will, or safety of society, or any part thereof. For these reasons, and the others hereinafter stated, appellees charge in their complaint (1) that the ordinance is null and void, because it deprives them of the free use of their property, and of the free use of the public streets of said city, in contravention of sections 1, 21, and 23 of article 1 of the state constitution; (2) that it grants privileges and immunities to a class of citizens which it does not grant to appellees on the same terms, and is therefore in violation of section 23 of said article of the constitution; (3) that it provides for an unequal and ununiform taxation of property, in violation of section 1 of article 10 of the constitution; (4) that it contravenes section 1 of the fourteenth amendment of the federal constitution, inasmuch as it serves to deprive appellees of their property and liberty without due process of law, and deprives them of the equal protection of the law. It is further charged that appellant, by and through its officers, is threatening to enforce the ordinance against appellees (plaintiffs below) by arresting and prosecuting them and enforcing fines against them, for the violation of said ordinance, etc. A perpetual injunction is demanded against appellant and its officers to prevent them from attempting to enforce said ordinance. The trial court held the complaint sufficient on demurrer. Appellant filed its answer, in one paragraph, wherein it set out all of the ordinances of the city of Terre Haute which regulated the use of its streets and the use of vehicles thereon. It also set out all of the police regulations in regard to the streets and vehicles, and further averred that said city had 90 miles of improved streets, and, if all persons liable under the ordinance were required to take out a license, the amount realized thereby would not exceed $8,000 per annum; that, to keep the streets in a good and safe condition for travel thereon, appellant was required to annually expend more than $40,000. The answer further discloses that the city of Terre Haute has a population of 45,000, and has 133 miles of streets within its corporate limits. A demurrer was sustained to this answer, and, appellant refusing to further plead, the court rendered its judgment enjoining it from enforcing said ordinance against appellees, and from enforcing it against any and all persons similarly situated. Errors are assigned on these rulings of the court.

The ordinance in controversy is entitled “An ordinance providing for a license upon vehicles drawn upon the streets of the city of Terre Haute, Indiana, providing penalties for the enforcement of the same, ***” and is as follows:

“Be it ordained by the common council of the city of Terre Haute, Indiana:

“Section 1. That the owner of all vehicles used on the streets of the city of Terre Haute shall pay annually license fees as follows, viz.: (1) On each wagon or truck used for hauling boilers, engines, machinery or safes and drawn by four horses, four dollars. (2) On each wagon or truck used as above and drawn by two horses, two dollars. (3) On each wagon or truck used for hauling brick...