City of Mobile v. Gentry , 170 Ala. 234 ( 1911 )

ANDERSON, J.

That the city must derive the authority to levy the license in question from the Legislature there can be no doubt. The question therefore is, Was that authority conferred by the existing municipal act of Alabama, as found in volume 1 of the Code of 1907? Article 24 of the Code (page 631) was intended primarily.to authorize the regulation of a license upon business, trades, professions, etc., but an analysis of said article will disclose the fact that this authority was not necessarily confined to the subjects heretofore mentioned, but also included the right to regulate and license the use of the streets of the cities and towns. Section 1340 says: Drays, Carriages, Wagons, etc. — To regulate and license the use of carts, drays, wagons, coaches, omnibuses, and every description of carriages and vehicles kept for hire and to license and regulate the use of the streets of the town or city by persons who use vehicles or solicit or transact business thereon.” It will be noted that the first part of the section relates to the business of keeping vehicles for hire, and, if this was all, there could be no doubt but that a license on automobiles or other vehicles, not kept for hire, would be unauthorized. The section, however, does not stop here, but further authorizes the municipality to license and regulate the use of the streets of the town or city by persons who use vehicles (whether for hire or not, or for business or not) or by persons who transact or solicit business “thereon” (not therein). If the Legislature intended to authorize the license and regulation only of vehicles kept for hire, this would have been fully covered by the first part of the section, and complete without the succeeding part, -which rélatés to the' use of vehicles on the streets, whether kept for hire or hot. We cannot construe the last part of the section as applying only to vehicles kept for hire of used as a means of conducting business, for to do so would be contrary both to: the letter and meaning of same, and would emasculate a part of the law. It is mafiifest that section 1340 was intended to authorize the cities and towns to lícensé and regulate, first, the use of vehicles'kept for hire; second,to license and regulate the use of any kind of vehicles upon the streets Other than those kept for hire; and, third, to,-license and regulate the use of the streets against trade and traffic thereon. In other words, there are three separate and distinct classifications of the objects or subjects of license and regulation, to wit, the use of vehicles kept for hire, the use upon- the streets of all vehicles not kept for hire, and persons using the streets to solicit or transact business. It should also be observed that the section in question expressly gives authority to “regulate” as well as license, and to hold that the act gives no authority to “license” automobiles kept for pleasure or private-use would in- effect déelare that the city had no express - authority to regulate the use- of-same upon the streets. For, if the contention that the right to license did not apply to such vehicles was- sound, the same-reasoning would exclude the express-authority to regulate. True; the right to regulate might be necessarily" implied from the general- charter po'wers, and which said’-implication'‘might not include-the power to license,- but it iS evident the-Legislature-gave the express power to-regulate;-and, while there-might be reason-to license themneyand-not the-other, there is no reason why the city should not have the right to regulate all vehicle's on : the- streets, ■ and it is not probable that the Legísláture"would;■ give the! express-authority-as to one class and, leave, the right, to regulate,, under an -implied authority, as to another, glass., The .present statute ;giyes the .right to regulate as, .to all,,vehi pies .used upon, the" streets, and with the sanie, degree of, certainty -.gives the right to license also..., “The city is required to .maintain its streets... The. use pf vehicles upon th,em tends to their, detriment and .is a.use,common to alb citizens. Therefore the municipal government may reasonably require those deriving, a special benefit from the streets to pay. reasonably,,for their privilege,”—Browne v. Mobile, 122 Ala. 159, 25 South. 223. There, would .fie little, justice and,equity in taxing the-cabmen and,draymen for the use of the.streets in. earning his daily bread, and at the same time permit the jo,y or pleasure riders and owners of automobiles to escape — a class who.more-greatly incumber' the streets and in such a way as .to not .only impede, the .ancient method of. user, but. who render the crossings more-dangerous to the pedestrian. The automobile was in general use when the present municipal law was.enacted, and the Legislature intended to authorize the-cities and towns to license and regulate the use of same. The ordinance in question was authorized by the statute,- and -the city court erred in giving the general charge requested by the defendant, and should have given the general charge requested by the city. .

Our attention has been called in. brief of counsel for the appellee to the cases of St. Louis v. Grone & Whelan, 46 Mo. 574, and City of Hannibal v. Price, 29 Mo. App. 280. In these cases the ordinance was stricken down because not authorized bv' the- statute.- It is true, also1, that the statute mentioned, all other vehicles after specifying certain ones, but it also, immediately thereafter, authorized the fixing of rates- “for carriage of persons, and of wagonage, drayage and cartage of property/-’ thus indicating that-the Legislature was dealing only with vehicles used for hire. 'The statute in question is not so qualified, as it authorizes the license and regulation- of vehicles, and which comprises more- than the mere fixing of charges’. The use of private vehicle's .on the streets is a. subject for regulation, whether operated for hire or not, and the statute in question is not so worded as to evince, a legislative intent that-it was directed only to vehicles used for hire. . .

The judgment of the city -court is reversed, and- the cause remanded.

Reversed and. remanded.,

Simpson, McClellan, Mayfield, Sayre, and Somer-ville, JJ., concur. ’