Daniel v. City of Clovis.

• Decision Date: 06 August 1929
• Docket Number: No. 3171.,3171.
• Citation: 34 N.M. 239,280 P. 260
• Parties: DANIELv.CITY OF CLOVIS.
• Court: New Mexico Supreme Court

34 N.M. 239

280 P. 260

DANIEL

v.CITY OF CLOVIS.

No. 3171.

Supreme Court of New Mexico.

Aug. 6, 1929.

Syllabus by the Court.

The city council and board of trustees in towns under the provisions of paragraph 14 of section 3564, Code 1915, had power to license and regulate the businesses and occupations of hackmen, omnibus drivers, carters, cabmen, porters, and expressmen, and all others pursuing like occupations, and cities and towns and villages have power, under section 8 of chapter 96, Laws of 1923, to license operators of, and regulate the use of, motor vehicles operated for hire within their corporate limits. And cities and towns may, under their police power, license and regulate storage warehouses.

The powers mentioned in the preceding paragraph are not limited or controlled by chapter 148, Laws of 1919, authorizing the imposition of occupation taxes.

An ordinance of the city of Clovis examined, and held to be regulatory and the license fees imposed not for revenue only, and that said ordinance is valid, except in the particular adjudged by the district court.

Appeal from District Court, Curry County; Hatch, Judge.

Suit by Charles R. Daniel against the City of Clovis. Judgment for defendant, and plaintiff appeals. Affirmed and remanded.

Ordinance regulating transfer, taxicab, and warehouse businesses and requiring license, held valid, except as to clerk's fee, as regulatory and not for revenue only. Code 1915, § 3564, par. 14, § 3621; Laws 1923, c. 96, § 8.

Fitzhugh & Fitzhugh, of Clovis, for appellant.

Otto Smith, of Clovis, for appellee.

BICKLEY, C. J.

The city of Clovis enacted Ordinance No. 219 of said city, regulating the occupation of dray, transfer, taxicab, and storage warehouses, and provided a license fee therefor; said city was threatening to enforce said ordinance when this cause was filed and an order to show cause issued from the district court directed to appellee city, ordering it to show cause why it should not be restrained and enjoined from enforcing said ordinance. Judgment was rendered in favor of appellee, and appellant appeals. Appellant attacks the ordinance upon the ground that the regulations contained therein are ultra vires and void, and for the further reason that the provisions of said ordinance are in contravention of the general laws of New Mexico, providing for occupation taxes. Appellee bases its defense upon the theory that the ordinance is a valid exercise of the power of municipalities to regulate and license the occupations affected.

The material portions of the ordinance are as follows:

“Section 1. That it shall be unlawful for any person, firm or corporation to conduct, perform or carry on any of the following businesses or occupations without first having obtained a license and having paid a license fee to the City of Clovis in the amount and according to the following schedule: Dray, transfer or baggage, one horse, per wagon $6.00, two horses, per wagon $12.00; truck per truck $15.00; taxi-cab or service car, $10.00; storage warehouse $12.00.

Section 2. That where one and the same person, firm or corporation are engaged in the operation of two or more of the above specified businesses except in the operation of a taxi-cab or service car, or where one person, firm or corporation is engaged in any of the above businesses, including the operation of taxi-cabs, and shall operate more than one vehicle, then said persons, firms or corporations shall pay a license fee at the rate above specified on the business or vehicle on which the rate is the higher, and at one-half rate for each additional business or vehicle.

Section 3. That the above licenses shall be issued by the City Clerk at the same time and in the same manner as other licenses, charging a fee of $1.00; that each vehicle used in the above occupations shall be inspected at least once in each six months by the Chief of Police, and if found unsafe for the work for which it is used then the owner of said vehicle shall have his license suspended until he provides a suitable vehicle; that the Chief of Police shall inspect all storage warehouses at least once in each six months to see that same are kept sanitary and that the articles and goods kept therein are kept safe from damage from wind and rain; and that all dray, transfer, baggage, and taxi or service car owners shall display the license tax issued them by the City of Clovis on the vehicles operated under this ordinance where it can be plainly seen.

Section 4. That the City Commission may, in its discretion, revoke the license of any person, firm or corporation who shall be convicted of the violation of any traffic law or ordinance; or who shall be convicted of possessing, selling or transporting intoxicating liquor.

Section 5. That five dollars per year of the tax provided for hereunder from each person, firm or corporation shall be an occupatax, and when collected shall be credited to the general fund of the City of Clovis, and the balance collected from said occupations or businesses shall be a license and inspection fee, and when collected shall be credited to the police fund; and used to pay the cost of inspection and regulation as provided hereunder.”

The judgment of the court was that the plaintiff (appellant) was not entitled to injunction prayed, and that the ordinance is valid except that part of section 3 which provides a fee of $1 as clerk's fee for issuing license.

[1] The appellee city claims, as the source of its power to enact the ordinance in question, the last clause of section 8 of chapter 96, Laws of 1923; said section being as follows: “Section 8. The registration of motor vehicles and payment of fees therefor required by this Act shall be in lieu of all similar registration required by any county or municipality in this State and no fees or like burden shall be imposed for motor vehicles by any county or municipality, but cities, towns and villages may license operators of, and regulate the use of such vehicles operated for hire within their corporate limits.”

And paragraph 14 of section 3564, New Mexico Code 1915: “The City Council and board of trustees in towns shall have the following powers: * * * Fourteenth.-To license, tax and regulate hackmen, omnibus drivers, carters, cabmen, porters, expressmen, and all others pursuing like occupations, and to prescribe the compensation.”

And as to warehouses, appellee relies upon the general police power of municipalities which we apprehend may be defined or supplemented by section 3621 of the Code, which is as follows: “Municipal corporations shall have power to make and publish, from time to time, ordinances not inconsistent with the laws of the State, for carrying into effect or discharging the powers and duties conferred by law, and such as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort and convenience of such corporation and the inhabitants...