Tomlinson v. City of Indianapolis

• Decision Date: 04 March 1896
• Citation: 144 Ind. 142,43 N.E. 9
• Parties: TOMLINSON v. CITY OF INDIANAPOLIS.
• Court: Indiana Supreme Court

144 Ind. 142

43 N.E. 9

TOMLINSON

v.CITY OF INDIANAPOLIS.

Supreme Court of Indiana.

March 4, 1896.

Appeal from superior court, Marion county; J. L. McMasters, Judge.

Frank Tomlinson was convicted of violating an ordinance of the city of Indianapolis, and appeals. Affirmed.

McCullough & Spaan, for appellant. J. E. Scott and Jas. B. Curtis, for appellee.

HOWARD, J.

By section 23 of the act in force March 6, 1891, known as the “Indianapolis City Charter” (section 3794, Rev. St. 1894), it is provided that the common council of said city shall have power to enact ordinances for certain purposes therein named,-among others, “to regulate the use of streets and alleys by vehicles,” and “to license, tax, and regulate wheeled vehicles, provided that the funds derived therefrom shall be applied only to the maintenance and repair of streets and alleys.” In pursuance of these provisions of the statute, the common council of said city passed General Ordinance No. 61, 1893, entitled “An ordinance providing for license upon vehicles drawn upon the streets of the city of Indianapolis,” etc. In section 1 of said ordinance, certain annual license fees are specified to be paid by the owners of the several varieties and kinds of vehicles “used upon the streets of the city of Indianapolis,” no limitation being made as to residence or other qualifications of such owners. In section 2 of the ordinance, provision is made for licensing vehicles used by market gardeners, fruit growers, florists, hucksterers, liverymen, and others hauling goods or merchandise to or out of said city, particular reference being had to persons living outside said city, but doing business in the city. In all these cases the license fees are the lowest charged for the corresponding vehicles named in the first section, unless it be in the case of four-horse wagons used for hauling brick or ice. Other sections provide in detail for the paying of fees and issue of license; for numbering the vehicles, and lighting them at night; for the width of tires; for penalties for violations of the ordinance; and for the use of the funds derived from the license in the repair of the streets and alleys of the city. The appellant was arrested for the violation of sections 1, 2, and other sections of the ordinance, and, on appeal to the court below, was found guilty and fined. He assigns as error on this appeal that the court overruled his motion for a new trial. The reasons given in the motion for a new trial were that the finding and judgment were contrary to law and contrary to the evidence.

The appellant was a nonresident of the city and engaged in market gardening, having a stand in the city to which he brought the products of his garden, without having procured a license for his market wagon. The only question to be decided is whether it was unlawful to require appellant, a nonresident of the city, to pay a license fee, such as residents are required to pay, for driving his wagon upon the streets of the city. He was charged with violating section 1 of the ordinance, as well as section 2. His was a one-horse wagon, used to bring vegetables to market. Under section 1 such a vehicle, whatever used for, or wherever the residence of its owner, is subject to an annual license fee of three dollars. Under section 2, the wagon, being a one-horse wagon owned by a person engaged as a gardener, is subject to the...