Park v. City of Duluth

• Citation: 134 Minn. 296,159 N.W. 627
• Decision Date: 20 October 1916
• Docket Number: No. 20034[184].,20034[184].
• Parties: PARK v. CITY OF DULUTH et al.
• Court: Supreme Court of Minnesota (US)

134 Minn. 296

159 N.W. 627

PARK

v.CITY OF DULUTH et al.

No. 20034[184].

Supreme Court of Minnesota.

Oct. 20, 1916.

Appeal from District Court, St. Louis County; William A. Cant, Judge.

Action by James D. Park against the City of Duluth and others. From an adverse order, plaintiff appeals. Affirmed.

Syllabus by the Court

The Legislature has power to impose a wheelage tax upon vehicles, and to provide that the proceeds shall be used for the maintenance and repair of highways.

The city council of a city may impose such a tax for such purpose upon vehicles maintained in the city, if it have legislative authority therefor.

The adoption of a home rule charter by the people of a city is legislation, and the authority which it furnishes to city officers is legislative authority.

The Duluth charter authorizes the city council to impose a wheelage tax upon vehicles. Such power was expressly conferred by its charter of 1900. Its 1912 charter contains a provision that the city shall have all power possessed prior to its adoption but subject to the restrictions contained in the new charter. This continues all power not inconsistent with the terms of the new charter, and continued the power to impose a vehicle tax.

This legislation is not forbidden by Gen. St. 1913, § 2637, which regulates the speed and operation of motor vehicles and forbids any city from passing ordinances in respect to or limiting the use or speed thereof.

The ordinance does not violate the constitutional provisions that taxes shall be uniform on the same class of subjects.

It is not void because all licenses expire at the same time. Nor is it void as to resident owners of vehicles habitually used on the city streets because it fixes a minimum of one-quarter of the annual tax for use for a portion of a year. John Jenswold and John D. Jenswold, both of Duluth, for appellant.

John E. Samuelson, Leonard McHugh, and M. T. O'Donnell, all of Duluth, for respondents.

HALLAM, J.

The city council of Duluth passed an ordinance imposing a wheelage tax upon vehicles using the streets of the city, the proceeds to be used in repairing and improving the city streets. The ordinance forbids the use of the city streets to vehicles upon which the tax is not paid. Relator, a resident and owner of an automobile in the city, brings this proceeding to restrain the enforcement of the tax.

[1] 1. It is not seriously questioned that the Legislature might impose a wheelage tax upon vehicles. We have no doubt that it might do so. The power of the Legislature to tax is plenary. It is not dependent on any constitutional grant. The power to tax inheres in the state as an attribute of sovereignty, and it is without limit except as restricted by the Constitution. State ex rel. Oliver Iron Mining Co. v. City of Ely, 129 Minn. 40, 151 N. W. 545, Ann. Cas. 1916B, 189. There is no constitutional limitation which forbids this tax.

[2] 2. It is equally clear that the city council may impose such a tax if it have legislative authority therefor. This form of taxation by municipalities is not new, and it is becoming more and more common. It is not an ad valorem tax, but a tax upon the privilege of using streets, the construction and repair of which entail great public expense. It imposes on those who cause most of the wear and tear of the streets, part of the burden of the expense of maintaining them. The imposition of such a tax by a city, if authorized by the legislative power of the state, is reasonable and lawful, and has quite generally been sustained. Ft. Smith v. Scruggs, 70 Ark. 549, 69 S. W. 679,58 L. R. A. 921, 91 Am. St. Rep. 100;Harder's Storage Co. v. Chicago, 235 Ill. 58, 85 N. E. 245,14 Ann. Cas. 536;Tomlinson v. Indianapolis, 144 Ind. 142, 43 N. E. 9,36 L. R. A. 413;City of Terre Haute v. Kersey, 159 Ind. 300, 64 N. E. 469,95 Am. St. Rep. 298;City of St. Louis v. Weitzel, 130 Mo. 600, 31 S. W. 1045;Frommer v. City of Richmond, 31 Grat. (Va.) 646, 31 Am. Rep. 746; Cooley on Taxation (3d Ed.) p. 9.

[3] 3. We think there is legislative authority for this ordinance. Duluth operates under a home rule charter. The Constitution and general laws of the state confer upon the people of a city the power to frame and adopt its own charter. The adoption of such a charter is legislation. The authority which it furnishes to city officers is legislative authority. The people of a city in adopting a charter have not power to legislate upon all subjects, but as to matters of municipal concern they have all the legislative power possessed by the Legislature of the state, save as such power is expressly or impliedly withheld. Amer. Elect. Co. v. City of Waseca, 102 Minn. 329, 113 N. W. 899; St. Paul Book & Stationery Co. v. St. Paul Gaslight Co., 130 Minn. 71, 153 N. W. 262, Ann. Cas. 1916B, 286;State v. City of International Falls, 156 N. W. 249.

[4] 4. The Duluth charter authorizes the city council to impose a wheelage tax upon vehicles. The old Duluth charter of 1900, as amended in February, 1910, authorized the city council--

‘to regulate the use of streets, avenues and alleys by vehicles, and to impose upon vehicles a tax or fee for the privilege of using the streets, avenues and alleys of the city, the proceeds of which tax or fee shall be used solely for the maintenance and repair of streets, avenues and alleys.’

In 1912, the people of the city adopted a new charter. The above provision was not carried forward into the new charter. The 1912 charter did, however, provide (section 1) that the city should--

‘have and exercise all powers, functions, rights and privileges possessed by the city of Duluth prior to the adoption of this charter * * * and * * * it shall have all the powers, and be subject to the restrictions contained in this charter.’

This sort of carry-all provision may not be the most approved form of municipal legislation, for it compels resort to an abandoned charter to determine the extent of existing municipal power, but the language is clear and unequivocal, and we must give it effect according to its terms. It says, and it means, that the city, under the 1912 charter, has all powers which it possessed prior to the adoption of that charter, subject to the restrictions contained therein. It continues all powers not inconsistent with the terms of the new charter. The power to impose a vehicle tax was one of these powers. By this general provision it was adopted into the new charter, and since the new charter contained no provision inconsistent with it, it is in no sense repealed. The imposition of this tax is authorized by the city charter.

[5] 5. It is contended that this ordinance is forbidden by the general laws of the state. If so, it is void. The power conferred upon cities to frame and adopt their own charters is limited by the provision that such charter ‘shall always be in harmony with and subject to the Constitution and laws of the state.’ Const. art....