Ex parte Holt

• Decision Date: 01 October 1918
• Docket Number: 9490.
• Parties: Ex parte HOLT.
• Court: Oklahoma Supreme Court

178 P. 260

74 Okla. 226, 1918 OK 562

Ex parte HOLT.

No. 9490.

Supreme Court of Oklahoma

Oct. 1, 1918

Rehearing Denied Feb. 11, 1919.

Syllabus by the Court.

"Under section 8, art. 4, c. 173, Sess. Acts 1915, local authorities, such as cities, may 'regulate vehicles offered to the public for hire,' and in doing so may impose a license or fee when the purpose thereof is an exaction of regulation." Ex parte Mayes, 167 P. 749.

The character of a municipal ordinance passed and sought to be enforced ostensibly for the purpose of regulation may be primarily determined from all of its provisions; and where no attempt appears thereby to raise revenue, as such, the only pecuniary charge imposed being designed merely to cover the expense of regulating an occupation which it is deemed desirous or necessary to subject to inspection and supervision in the interest of public welfare and safety such charge will not be treated as a tax for revenue.

Ordinance No. 1968 of the city of Oklahoma City examined, and held not to contravene the provisions of the General Highway Law of 1915.

The writ of habeas corpus is discharged.

Application of William Holt for writ of habeas corpus. Writ discharged.

Giddings & Giddings, of Oklahoma City, for petitioner.

B. D Shear, A. T. Boys, E. E. Blake, and W. M. Howenstein, all of Oklahoma City, for respondent.

BLEAKMORE C.

This is an original proceeding by which William Holt prosecutes a writ of habeas corpus to inquire into his arrest and restraint by W. B. Nichols, chief of police of the city of Oklahoma City, for the violation of an ordinance of said city alleged to be void.

By its charter the city of Oklahoma City is given power to enact and enforce ordinances upon any subject not inconsistent with the laws of the state, etc.

The ordinance in question, No. 1968, passed and approved September 20, 1917: (1) Defines the term "motor vehicles"; and (2) provides that the owners of such vehicles offered to or used by the public for hire shall register same with the city clerk; (3) that an application be filed with such clerk, naming the owner and driver of each such vehicle, the purpose for which it is offered to or used by the public, the number assigned it by the department of highways, the serial number of its engine, etc.; (4) that there shall be issued to the owner by the city clerk a nontransferable certificate, in duplicate, which shall be carried by the driver subject to being displayed to any patron or police officer at any time; (5) that such vehicle shall at all times be subject to inspection, and, if found defective or unsafe for public use, shall not be operated until repaired; (6) that if such vehicle is used in violation of the laws of the United States or the state or ordinances of the city, the certificate issued by the clerk shall be revoked, etc.; (7) that certain persons are disqualified as drivers; (8) that a report be made of any change in drivers which shall be registered; (9) that bond in the sum of $250, conditioned that the owner will respond in damages for injury occasioned by his negligence, shall be given; (10) at the time of such registration of such motor vehicle, and at the time of the issuance of the certificate therefor by the city clerk, and for the purpose of defraying the expenses of the police supervision and inspection and the issuance of the certificates herein provided for, there shall be paid to the city clerk, for each motor vehicle so used, a fee of $25 for first car and $20 for each additional car, which fee shall cover the expense of such registration, supervision, regulation, and control of such motor vehicle under the provisions of this ordinance until the expiration of the ensuing fiscal year; (11) that any violation of the provisions of such ordinance shall constitute an offense, for which penalty is provided.

It is urged by the petitioner that such ordinance is void, and his arrest and restraint for violation thereof unlawful, for the reason that by virtue of the provisions of the General Highway Law of the state, chapter 173, Session Laws 1915, the city was powerless to pass or enforce the same.

The pertinent provisions of the Highway Law are found in sections 3 and 8 of article 4, and are as follows:

"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 or regulation in any way contrary to or inconsistent with the provisions of this article, now in force or hereafter enacted, shall have any force or effect; provided, that the powers given to local authorities in cities of the first class to enact general rules and ordinances applicable equally to all vehicles and users of the highway, to bring about the orderly passage of vehicles upon certain streets in such cities, where the traffic is heavy and continuous, and the powers given to local authorities to regulate vehicles offered to the public for hire or for processions, assemblages or parades in the streets or public places shall remain in full force and effect; and provided further, that local authorities may set aside a specified public highway or highways for speed contests or races to be given under proper restrictions for the safety of the public; and provided further, that local authorities may exclude by ordinance or regulation motor trucks and motor vehicles used exclusively for commercial purposes, from the parks and parkways of this state, provided such ordinance or regulation is applicable equally and generally to all other vehicles used to the same purpose; and provided further, that local authorities may

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