The City of Terre Haute v. Kersey

• Decision Date: 06 June 1902
• Docket Number: 19,085
• Parties: The City of Terre Haute v. Kersey et al
• Court: Indiana Supreme Court

64 N.E. 469

159 Ind. 300

The City of Terre Haute v. Kersey et al

No. 19,085

Supreme Court of Indiana

June 6, 1902

Rehearing Denied October 10, 1902.

From Vigo Superior Court; S. M. McGregor, Special Judge.

Suit by William P. Kersey and others to enjoin the city of Terre Haute from enforcing an ordinance imposing a tax for vehicle license. From a judgment for plaintiffs, defendant appeals.

Reversed.

P. M Foley, for appellant.

J. S Jordan, R. B. Stimson and H. A. Condit, for appellees.

OPINION

Jordan, J.

This appeal brings before us for review an ordinance adopted, and caused to be published, by the common council of the city of Terre Haute, Indiana, on January 7, 1899, imposing a license tax to be paid by the owners of certain vehicles used on the public streets of said city. The action was instituted in the lower court by William P. Kersey, in conjunction with his co-appellees herein, six in number, suing for themselves and in behalf of 5,000 others similarly situated, to enjoin appellant from enforcing against them the ordinance in controversy, for the reason that the same was wholly void, at least so far as the same concerned them. The complaint alleges and discloses that appellees are citizens of the United States, and taxpayers residing within the city of Terre Haute, and are the owners of various kinds of vehicles kept by them for their own use, health, pleasure, and profit, and not for the purpose of carrying goods, passengers for hire, or for the purpose of renting the same, but that such vehicles are kept for their own private use; that all of said vehicles owned by them on April 1, 1898, had been duly listed and assessed for taxation under the general revenue laws of the State of Indiana. It is alleged that the use of the vehicles owned by appellees is necessary to their health and business, and that it is impossible to use them without entering upon and driving along and over the streets of said city; that the value of said vehicles varies from fifty cents to $ 500. It is charged that the ordinance in question is not uniform in its operation upon all persons in the same class, and that certain kinds of vehicles used upon the streets of the city are exempted from its operation, and that the ordinance is designed as a revenue measure, and would produce, if enforced, a revenue of $ 15,000; that it is not intended to correct any evil or abuse, or to preserve the peace, good order, or safety of society, or any part thereof. For these reasons, and the others hereinafter stated, appellees charge in their complaint (1) that the ordinance is null and void because it deprives them of the free use of their property, and of the free use of the public streets of said city, in contravention of §§ 1, 21, and 23 of article 1 of the State's Constitution; (2) that it grants privileges and immunities to a class of citizens which it does not grant to appellees on the same terms, and is, therefore, in violation of § 23 of said article of the Constitution; (3) that it provides for an unequal and ununiform taxation of property in violation of § 1 of article 10 of the Constitution; (4) that it contravenes § 1 of the fourteenth amendment of the federal Constitution, inasmuch as it serves to deprive appellees of their property and liberty without due process of law, and deprives them of the equal protection of the law. It is further charged that appellant, by and through its officers, is threatening to enforce the ordinance against appellees, plaintiffs below, by arresting and prosecuting them and enforcing fines against them for the violation of said ordinance, etc.

A perpetual injunction is demanded against appellant and its officers to prevent them from attempting to enforce said ordinance. The trial court held the complaint sufficient on demurrer. Appellant filed its answer in one paragraph wherein it set out all of the ordinances of the city of Terre Haute which regulated the use of its streets and the use of vehicles thereon. It also set out all of the police regulations in regard to the streets and vehicles, and further averred that said city had ninety miles of improved streets, and if all persons liable under the ordinance were required to take out a license, the amount realized thereby would not exceed $ 8,000 per annum; that to keep the streets in a good and safe condition for travel thereon, appellant was required to expend annually more than $ 40,000. The answer further discloses that the city of Terre Haute has a population of 45,000, and has 133 miles of streets within its corporate limits. A demurrer was sustained to this answer, and, appellant refusing to plead further, the court rendered its judgment enjoining it from enforcing said ordinance against appellees, and from enforcing it against any and all persons similarly situated. Errors are assigned on these rulings of the court.

The ordinance in controversy is entitled "An ordinance providing for a license upon vehicles drawn upon the streets of the city of Terre Haute, Indiana, providing penalties for the enforcement of the same," and is as follows: "Be it ordained by the common council of the city of Terre Haute, Indiana:

"Section 1. That the owner of all vehicles used on the streets of the city of Terre Haute shall pay annually license fees as follows, viz.: 1. On each wagon or truck used for hauling boilers, engines, machinery, or safes, and drawn by four horses, $ 4. 2. On each wagon or truck used as above and drawn by two horses, $ 2. 3. On each wagon or truck used for hauling brick, ice, coal, drawn by two horses, $ 2. 4. On each omnibus or tallyho drawn by two horses, $ 2. 5. On each wagon drawn by four horses, and not used in the manner specified in clause one, $ 3. 6. On each wagon, cart, dray, truck, furniture car, delivery wagon, or sprinkling cart drawn by two horses or less, $ 2. 7. On each buggy, surrey, coupe, or sulky used for pleasure and drawn by one horse, $ 1. 9. On each hack, hackney, carriage, cab, barouche, buggy, driving car, surrey and all vehicles drawn by two horses, $ 2. 10. On each bicycle or tricycle, $ 1. 11. On each vehicle drawn by one horse not before mentioned, $ 1. 12. On each two-horse vehicle not before mentioned, $ 2. 13. On each three-horse vehicle not before mentioned, $ 3. 14. On each four-horse vehicle not before mentioned, $ 4.

"Section 2. All vehicles used by persons living without said city in hauling ice, coal, brick, sewer-pipe, tiling, or in the peddling of milk over and upon the streets of the city of Terre Haute, Indiana, the sum of $ 2 for each vehicle drawn by one or more horses. Persons who take out license under this ordinance after February 15th of each year shall pay pro rata for the balance of the year ending February 15th thereafter: Provided, that every license issued after November 15th of each year, shall be a license fee charged to one-fourth of the annual license fee charged in this ordinance.

"Section 3. That any person included in the provisions of this ordinance desiring to use the streets of said city shall pay, or cause to be paid, to the city treasurer for each vehicle the license fee as herein provided, and take his receipt therefor, and upon presentation of said receipt to the city clerk, the said city clerk shall issue a license to the owner of said vehicle. It shall be unlawful for any person or persons owning any vehicle included in the provisions of this ordinance to use the streets of said city without first securing a license as herein provided."

Section four provides that there shall be "kept conspicuously in view on each vehicle mentioned in the ordinance the registered number of such vehicle, so that the same can be easily read from the sidewalk," etc.

"Section 5. The fund derived from the license herein provided for shall be applied only to the maintenance and repair of the streets and alleys of the city of Terre Haute.

"Section 6. The owners of vehicles covered by the terms of this ordinance, shall, before obtaining his license as herein provided, be required to pay to the city of Terre Haute the license fee as required by this ordinance, and take and file the city treasurer's receipt for the same with the city clerk, accompanied by an application signed by himself in which he shall set forth a full description of the kind and character of the vehicle for which a license is desired, the name of the owner, and the use to which such vehicle is to be put. Thereupon said clerk, upon the delivery of such receipt, shall deliver to said owner a license covering the period for which payment has been made, together with the plates provided for in this ordinance. Said clerk shall receive out of said license fee the sum of ten cents for each license issued."

Section seven, among other things, provides for a transfer of the license from the original owner to the purchaser of the vehicle, and for the recording of the license in the record book kept for that purpose.

"Section 8. Any person, firm, or corporation who shall violate any of the provisions of this ordinance, or who shall after the 15th day of February of each year drive or propel or cause to be driven or propelled on any of the streets of the city of Terre Haute, any unlicensed vehicle which under this ordinance requires a license shall be fined in any sum not less than $ 1 and not more than $ 10."

Section nine declares that the ordinance shall be in full force and effect from and after its passage and publication, and after February 15, 1899.

It is apparent that this ordinance is not a model either in the draft thereof, or in the language or terms therein employed, but its intention or purpose is evident, which is, as we interpret it, to subject the owner of the vehicles therein named to the payment of a...