Ex parte Mayes
| Decision Date | 18 September 1917 |
| Docket Number | 8951. |
| Citation | 167 P. 749,64 Okla. 260,1917 OK 447 |
| Parties | EX PARTE MAYES. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Amended section 22 of Ordinance 43C of the city of Pawhuska, imposing a license tax upon the business and occupation of transporting passengers for pay in automobiles or other motorpropelling vehicles upon and over the streets, alleys and other public places of the city, and upon all those engaged in such business or occupation, and which tax is fixed at $25 per annum for each automobile operated and engaged in such business, being, as stated in the ordinance "for the purpose of raising revenue for said city," and not an exercise of the police power, is in conflict with section 8, art. 4, c. 173, of an act of the Legislature approved March 15, 1915 (Sess. Laws 1915, pp. 328, 329), and on account of such repugnance, cannot be enforced.
A conviction had and jail sentence imposed in default of the payment of fine assessed by the police court of the city under the circumstances disclosed in the preceding paragraph, is without force; and one so convicted is entitled to a discharge from such illegal restraint.
Neither section 581, Rev. Laws 1910, nor the city ordinance for the violation of which the petitioner was convicted contemplate the regulation or control of the business or traffic of transporting passengers for hire within and over the streets and public places of the city, but, on the other hand, provide for a license tax for revenue, as distinguished from a license fee collected on account of necessary police regulation.
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. But when the primary object of the local legislation is to afford a revenue, the ordinance pursuant to which the same is levied is invalid, and cannot be enforced.
Original application of Henry Mayes for writ of habeas corpus. Petitioner discharged.
Hargis & Griffin, of Pawhuska, for petitioner.
E. L. McCain, of Pawhuska, for respondent chief of police of the city of Pawhuska.
In the month of February, 1917, the petitioner was tried and convicted in the police court of the city of Pawhuska for the violation of an ordinance of said city providing for the levy and payment of a license tax of $25 per annum for each automobile operated for hire in said city. The power of the city to enact the ordinance under which petitioner was convicted and imprisoned is assailed upon numerous grounds, but one of which need receive our consideration. The ordinance under which the city acted and its chief of police here justifies his custody of the petitioner provides:
Another ordinance of the city provides that any one violating any of the provisions thereof shall be deemed guilty of an offense, and upon conviction thereof shall be punished by a fine not to exceed $20 and stand committed to the city jail until both fine and costs are paid, and that each day any such person or persons shall continue to operate any business therein named, in violation of the provisions of the ordinance, shall constitute a separate and distinct offense. The power of the city to impose the tax named in the ordinance is said to be found in section 581, Rev. Laws 1910, conferring upon the city council authority to levy and collect a license tax on auctioneers, contractors, druggists, and numerous other classes of business, including drays, hacks, carriages, omnibuses, carts, wagons and other vehicles used in the city for pay. In view of the act of the Legislature approved March 15, 1915 (chapter 173, Sess. Laws 1915, pp. 306-340), creating a department of highways and conferring upon the commissioner of highways supervision of all matters relating to state roads and highways and of article 4 of the act providing for motor vehicle registration, and particularly on account of section 8 of article 4 of the act taking from local authorities the power to pass, enforce, or maintain any ordinance, rule, or regulation requiring from any automobile owner any tax, fee, license, or permit for the free use of the public highways, and which act provides that the local authorities in cities of the first class shall retain the power "to regulate vehicles offered to the public for hire," it is first necessary that we determine the nature and character of the tax sought to be imposed. Does the statute pursuant to which the ordinance was enacted authorize the imposition of a tax as such, or is the purpose one of regulation and control under the police power of the city? Section 581, Rev. Laws, is a revision of section 603, Statutes of 1890. The revision contains but a slight change in the original statutes. It eliminates any reference to dramshops, saloons, liquor dealers, and "other gambling tables," and includes other minor changes not pertinent to the question presented. Section 603 of the Statutes of 1890 is almost identical with section 48, art. 3, c. 60, of the Laws of Kansas 1871. This statute, it was held in Fretwell v. City of Troy et al., 18 Kan. 271, was designed for purposes of revenue rather than of police regulation. In construing the statute it was observed by Mr. Justice Brewer, who delivered the opinion:
"Express authority is given by the statute to levy and collect a 'license tax' upon various exhibitions, professions, and avocations, including therein 'merchants of all kinds'; and to make more clear that it is not regulation, but revenue, which is authorized, the section closes with a proviso as follows: 'Provided, however, that all scientific and literary lectures * * * shall be exempt from such taxation.' "
The question was again presented to the Supreme Court of that state in City of Newton et al. v. Atchison et al., 31 Kan. 151, 1 P. 288, 47 Am. Rep. 486, and arose under section 3 of chapter 40 of the Laws of 1881, and which was substantially the same as the 1871 statutes before the court in Fretwell v. City of Troy et al. The latter statute, however, eliminated the proviso found in the earlier statute respecting the exemption from taxation of all scientific and literary lectures, and also gave to the city the "exclusive" authority to levy and collect a license tax. The court was asked to re-examine its former opinion, and (we may assume) to recede from its earlier conclusions respecting the construction of the statute. It declined to do so, but, on the other hand, gave additional reasons why the statute should be held to impose a tax.
"We think," said the court in the latter opinion,
Attention was called to the fact that in the former opinion the court had construed the words "levy and collect a license tax," and it was said that, with that construction before them, the...
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