Pegg v. Columbus
| Decision Date | 08 June 1909 |
| Docket Number | 10786 |
| Parties | Pegg Et Al. v. The City Of Columbus Et Al. |
| Court | Ohio Supreme Court |
City vehicle license ordinance - Invalid as to owners of vehicles of non-residents, when.
An ordinance adopted by the council of the city of Columbus on the 20th day of March, 1905, "to license and regulate the use of the streets of the city of Columbus * * * by persons who use vehicles thereon," and which provides "that no vehicle shall be used upon the streets of the city of Columbus, Ohio, unless a license to use such vehicle upon said streets has been obtained in accordance with the provisions of this ordinance by the owner, user or person having control of said vehicles" - is unreasonable as to owners, users or controllers of such vehicles who are non-residents of said city, and who bring the same onto its streets for purposes of pleasure, or on their own private business but not for hire, and the ordinance as to such persons is invalid and cannot be enforced.
On the 20th day of October, 1906, the plaintiffs in error, fifteen in number, commenced a civil action in the court of common pleas of Franklin county, against the city of Columbus, its mayor, city auditor and city treasurer, to enjoin the enforcement, as against the plaintiffs, of a certain ordinance passed by the council of said city on March 20 1905, entitled: "An ordinance to license and regulate the use of the streets of the city of Columbus, State of Ohio, by persons who use vehicles thereon and to repeal certain ordinances therein named." In their petition they aver that they are "farmers and gardeners owning lands and residing in Franklin county, Ohio, outside the limits of the city of Columbus, and that they are also citizens and electors of Franklin county Ohio, and bring this action on their own behalf and on behalf of all others similarly situated." They further aver that each of them is the owner of real estate and chattel property in said county outside of said city "on which they pay all taxes, and that they have paid road assessments for free turnpikes in said county, and that they pay in labor and cash, annually, all road taxes and assessments provided by law; that each of them owns a two-horse farm wagon drawn by two horses, which are occasionally driven into said city for the purpose of delivering farm products of their own raising, and for the purpose of transporting merchandise to their homes which they have purchased in said city for their family use, and that each of them owns a buggy drawn by one horse, and that it is necessary for plaintiffs to use their said vehicles occasionally on said streets, and it is also necessary for them occasionally to use their vehicles on said streets in passing through the city, and to convey their children to the public schools and university."
Further "that it is necessary for them to come to the city of Columbus semi-annually, for the purpose of paying their taxes, also for rendering jury services if their names be drawn from the jury wheel, or to market the products of their farms and gardens; and that the nearest, best and only convenient market for the sale of the products of their farms, or for them to buy merchandise for their family use is in the city of Columbus, and that it is necessary for them in paying their taxes, or rendering jury services, or in passing through said city, or in attending said schools * * * or in purchasing and securing supplies for their own sustenance, to bring their vehicles within the corporate limits of said city of Columbus, and to use their vehicles on said streets."
The petition sets out the provisions of said ordinance, Section two (2) of which provides that "no vehicle shall be used upon the streets of said city of Columbus, Ohio, unless a license to use such vehicle upon the streets has been obtained in accordance with the provisions of this ordinance by the owner, user, or person having the control of said vehicle."
Section three (3) provides, "that any person who shall use, or being the owner or controller thereof, shall permit to be used, any vehicle upon the streets of the said city of Columbus, Ohio, contrary to the provisions of this ordinance, shall be guilty of an offense, and upon conviction thereof shall be punished in the manner hereinafter provided."
Section four (4) provides the steps to be taken to obtain a license to use the streets and the certificate to be issued in pursuance of the payment of the license fee, and further provides that, "each applicant for a license shall, before he is entitled to receive the same, pay to the city treasurer the proper annual license fee, or the proportion thereof, as hereinafter provided."
The fifth (5) section fixes the annual license fee as follows:
Provision follows for procuring license during the remaining of the current year and the amount to be paid therefor. Tags or checks of certain material must be used by the licensee in a certain place or displayed in a certain manner.
Section twelve (12) provides that, "the money paid into the city treasury from said license fees shall be credited to a fund to be known as the 'vehicle fund' and shall be first applied to the expenses of issuing said licenses and furnishing said numbers and tags, and then, if any remain, shall be used only for the actual repair of the streets of the said city of Columbus, Ohio."
It is provided in Section 15 that any person using any vehicle upon said streets without a license, or without a check or tag attached thereto, etc., as required by the ordinance, shall be guilty of an offense.
Section sixteen (16) provides "that any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined not less than five dollars ($5.00) and not more than fifty dollars ($50.00) and shall pay the costs of prosecution."
The petition protests the validity of said ordinance on several grounds, among which are:
1. That it was enacted for the purpose of raising revenue, and not for the regulation of the use of the streets, and is therefore a tax for revenue.
2. It discriminates against farmers and gardeners who raise and sell the products of their own farms and gardens, in favor of brewery wagons, coal wagons, heavy drays, transfer wagons and trucks carrying heavy loads and used constantly upon the streets, against the vehicles with light loads used occasionally upon the streets; that it is unjust, unfair, unreasonable and exorbitant, in restraint of trade and is against public policy.
3. It is unconstitutional and void and is not of uniform operation.
4. That the defendants construe said ordinance so as to apply to the plaintiffs and threaten to arrest plaintiffs if they use said streets without said license and paying for the same.
The petition prays that defendants be enjoined from enforcing said ordinance against plaintiffs and against other farmers and gardeners similarly situated who market the products of their own farms and gardens in said city, etc.
The answer of the city admits the facts set out in the petition--but not the legal conclusions therein--and avers that unless restrained, it will enforce said ordinance or so much as is valid, and that it had taken the official opinion of the city solicitor as to its enforcement against persons living outside said city, and as to whether any of them could be excepted from its operation. The city, so the answer says, being in doubt about the soundness of the opinion rendered by the solicitor, prays this court for a construction of said ordinance as to its validity and scope in relation to such non-residents of the city as the plaintiffs.
On hearing, the court of common pleas found the ordinance to be constitutional, but that it does not apply to or embrace non-residents of the city, and that the plaintiffs and all farmers and gardeners similarly situated are entitled to the relief prayed for.
The case was taken on appeal to the circuit court and there tried. Besides the admissions found in the pleadings the following facts were agreed upon:
1. The amount of public funds of the city of Columbus required per annum to furnish the necessary clerical services, the license blanks, tags and numbers to issue the license and to put into operation ordinance 21927 will amount to $3,000 per annum and no more.
2. Between August 13 and November 8, 1906, both dates included, licenses have been procured by owners of vehicles within the city limits as follows: one-horse buggy, 2649; one-horse wagon, 3167; two-horse buggy, 144; two-horse wagon, 1294; three-horse wagon, 9; four or more horse wagon, 7; automobile one or more persons, 212; automobile three or more persons, 218; automobile for freight or goods, 8; motor or auto cycle, 7; push cart, 108; bicycle, 2935; street piano or organ, 7.
3. When petition was filed there were in Franklin county about four thousand farmers and gardeners, outside the limits of the city of Columbus, who raise and market the products of their own farms and gardens, and that each owns on an average one two-horse wagon and one buggy, pleasure carriage or spring wagon drawn by one horse.
There are other farmers and gardeners living in counties adjoining Franklin who haul the products of their farms and gardens to the city of Columbus.
4. The use of vehicles mentioned in the ordinance tends to wear out said streets, and necessitates the constant care and repair thereof, the actual cost of which cannot be accurately determined, but will not be less than $50,000.
5. Money is required annually for police regulation,...
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