ORIGINAL
PROCEEDINGS IN HABEAS CORPUS.
STATEMENT.
This is
an original proceeding in habeas corpus, brought by
the petitioner, Edward J. Tarling, a resident of the city of
St. Louis, Missouri, to test the legality of his
imprisonment, under two separate complaints, charging him
with the violation of certain portions of an ordinance of the
above city, approved January 25, 1921, set forth in the
petition.
By
stipulation between the parties, the issuance of a
preliminary writ and the production of petitioner's body
has been waived.
Respondent
Anton Schuler, in lien of a formal return, admits
that he is the duly appointed, qualified and acting marshal
of the city of St. Louis, Missouri; that petitioner was
arrested upon the charge of violating ordinance No. 31,079 of
said city, and that the petitioner is technically in his
custody awaiting trial in city Court No. 1, of the city of
St. Louis aforesaid, upon the information set out in the
petition. The respondent, for further return, prays this
court to remand the petitioner to his custody, as marshal
aforesaid, to be dealt with according to law, etc.
The
petitioner charges in substance, that he is deprived of his
liberty, by the marshal aforesaid, on two complaints, filed
in city court No. 1, of said city, by Martin O'Brien
chief of police thereof, copies of which are attached to the
petition and marked respectively "A" and
"B." He further alleges, that his said imprisonment
is illegal, in this, to-wit: That said complaint marked
"A" is founded upon an ordinance of said city,
approved January 25, 1921, and numbered 31,079, and
particularly upon sections three, four, five, six and seven
thereof, which read as follows:
Section Three: No taxicab or service car shall be offered for
or engaged in carrying passengers, with or without baggage,
for hire, over or upon the public streets or places in the
city of St. Louis, unless a license for each taxicab or
service car so operated shall have been applied for and
obtained by the owner thereof, as hereinafter provided. The
application shall be accompanied by a certificate of
inspection from
the department of streets and sewers and shall be addressed
to the license collector of the city of St. Louis, upon a
blank form to be furnished by said collector, shall be duly
verified by affidavit of the owner or owners thereof, and
shall state the following:
(A) That the owner of owners desire to obtain a license from
the city of St. Louis, to Operate a taxicab or service car
for the conveyance of passengers, with or without baggage,
over and upon the public streets and places in said pity;
(B) The name and address of the owner or owners; if a
corporation, in addition to its name and address, the names
and addresses of officers thereof;
(C) Name of manufacturer and factory number;
(D) Seating capacity according to manufacturer's rating;
(E) Rates, horse-power or motor and, kind of motor power;
(F) Condition of taxicab or service car and approximate
value;
(G) State license number;
(H) City license number:
(I) Length of time the vehicle has been in use;
(J) The route it will travel and the charge per passenger it
will make if a service car.
Section Four: Upon the filing of the said application and the
payment of the license tax hereinafter provided for, the
license collector shall assign to such taxicab or service car
as a distinctive number and shall issue to the owner or
owners of same a metal plate with said number thereon a
license to operate same as provided by this ordinance. Such
license shall bear the number so assigned and shall set forth
the facts stated in the application, except that the seating
capacity may be not more than two persons, including the
driver, in excess of the manufacturer's rating. The
license shall also state whether the vehicle is a taxicab or
service car, and whether it is to be driven or operated by
the owner or an employee. In the event of the loss,
mutilation or destruction of such license or plate, the owner
may obtain from the license collector a duplicate thereof
upon filing an affidavit that such license or plate has been
lost, mutilated or destroyed and paying a fee of one dollar
therefor.
Section Five: Upon filing said application the applicant
shall pay to the license collector of the city of St. Louis
the sum of ten dollars
as an annual license tax for each taxicab or service car to
be operated by said applicant for the conveyance of
passengers on the public streets of the city of St. Louis.
Said license tax shall be due and payable on the first day of
February of each year and shall expire one year thereafter.
If application for a license to operate such taxicab or
service car is made during the period beginning on the first
day of August and including the last day of October in any
year, one-half of said license fee shall be charged and
collected. If application is made during the period beginning
on the first day of November and ending on the last day of
January in any year, one-fourth of said license fee shall be
charged and collected.
Section Six: The license tax herein required on each taxicab
or service car shall be a tax on the business of conveying
passengers over and upon the public streets and places in
said city, and nothing herein shall be construed so as to
exempt the owner from paying to the city of St. Louis the tax
imposed by said city in licensing motor vehicles or
automobiles to be operated on its streets or any registered
tax which the city of St. Louis may levy on motor vehicles or
automobiles, or the tax which the city of st. Louis levies on
motor vehicles or automobiles as personal property. Nor shall
anything herein be construed to exempt the
owner or driver of a motor vehicle from the qualifications
which the city of St. Louis or the state of Missouri may
require of persons who operate motor vehicles or automobiles
upon public streets or places.
Section Seven: No vehicle shall be licensed until it has been
thoroughly inspected and examined and found to be in a
thoroughly safe condition for the transportation of
passengers and shall be clean and suitable and of good
appearance. The director of streets and sewers shall make, or
have made by his deputies or inspectors, such examination and
inspection before issuing a certificate of inspection, and in
all cases where a license has already been issued and any
such vehicle is found to be unfit or unsuitable for public
patronage, the director of streets and sewers may revoke such
certificate of inspection, and thereafter shall notify the
license collector of such revocation, which shall act as a
forfeiture of such license until a proper certificate of
inspection is filed with such license collector. It shall be
the duty of the director of streets and sewers to see that
each vehicle is provided with a properly inspected taximeter,
and he shall be authorized and empowered to
establish reasonable rules and regulations for the inspection
of taxicabs and service cars and their appurtenances,
construction and condition of fitness.
Petitioner
further alleges, that each of the foregoing provisions of
said ordinance are invalid and void, in so far as they
require the owner of a taxicab, or service car, to obtain a
license from said city, for the following reasons:
(1) Because no license can be granted thereunder, until a
license tax of ten dollars on each vehicle, used as a taxicab
or service car, has been paid; that said city is prohibited
by sections 7550 and 7596, of the Revised Statutes of
Missouri, 1919, from levying any license tax specifically
upon automobiles except such as are permitted by said section
7596.
(2) Because under section 8702 of above statutes, said city
has no power to impose a license tax on the business of
transporting passengers for hire, by means of taxicabs or
service cars, such business not being specially named as
taxable by the charter of said city, and no such power being
conferred by statute.
(3) Because section seven supra, does not set forth
the conditions upon which said licenses may be issued, nor
does
said ordinance fix any standard or rule upon compliance with
which, the owner of a taxicab or service car may compel the
issuance of said license, but the same may be granted,
withheld or revoked, under the arbitrary discretion of the
director of streets and sewers.
It is
further averred, that by reason of the premises, said
sections three, four, five, six and seven are beyond the
powers of said city, are in violation of the laws of
Missouri, and are therefore illegal, void, and the
imprisonment of petitioner is without authority of law.
The
petitioner further charges, that his imprisonment is illegal,
because the complaint of the chief of police aforesaid
(marked exhibit "B") is founded upon sections one
(1) and twenty-two (22) of said ordinance, which read as
follows:
Section One: The term 'taxicab' as used in this
ordinance shall mean motor vehicles offered for hire to
passengers on the public streets of the city of St. Louis
according to or on the basis of distance traveled as
indicated by a taximeter attached thereto, or the time
consumed in travel as indicated by a time card furnished the
passenger by the operator, as hereinafter provided, the
passenger having the
privilege of traveling from place to place and stopping at
any time and place designated by the passenger. All taxicabs
offered for hire upon the basis of mileage consumed in travel
shall be equipped
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