Mason v. Mayor of Cumberland , 92 Md. 451 ( 1901 )

This is an appeal from the Circuit Court for Allegany County in equity and from an order of that Court refusing an injunction and dismissing the bill of the appellant filed by him asking the injunction to restrain the Mayor and City Council of Cumberland from enforcing against him one of the ordinances of the said corporation and to have the said ordinance declared void. The ordinance sought to be enjoined and nullified was passed in pursuance of the powers conferred upon the said corporation by the Act of 1898, chap. 158, which, among other powers conferred, authorized the corporation "to license, tax and regulate wheeled vehicles; provided, that the funds derived from all license shall be applied only to the maintenance and repair of streets and alleys." Authority was also given the corporation "to levy and collect a tax on the assessable property of said city for the general purposes of said corporation, not exceeding in any one year fifty cents on each one hundred dollars worth of said assessable property," and "to levy and collect such a tax on the assessable property of said city as may be necessary to pay the interest on the city bonds, and to provide a sinking fund for the redemption thereof at maturity." The ordinance which is attacked in this proceeding appears in the city code of Cumberland under the head of "License" and provides among other things that "it shall be unlawful for any person, persons, company or corporation" — "to drive or use over the streets, lanes or alleys in said city any carriage, buggy, trap, wagon, automobile or other vehicle of any kind or description for pleasure or for the transportation of passengers, or for the hauling of goods, wares and merchandise, or for use in any business of any kind or description. Provided that the funds derived from the licenses for the same be applied only to the maintenance of streets and alleys." "Or to peddle any goods, wares or merchandise whatsoever, by wholesale or retail, in or along the streets or alleys of said city" — following this last paragraph with a description or definition of who should be deemed a "peddler," and with the proviso "that this section shall not apply to drummers selling goods by sample to resident merchants, nor to farmers selling or offering for sale the products of their own farms;" or "to drive or use over the streets, lanes or alleys in said city any milk wagon," c., "without first having obtained a license therefor from the city clerk as hereinafter provided." The ordinance then proceeds to fix and prescribe the rates or charges for the various licenses required thereby to be taken out; and among them the license fixed "for each one-horse wagon" is two dollars and fifty cents.

The appellant's bill alleges that he is a citizen of Allegany County owning and operating a large farm beyond the limits of said city, and that in pursuance of his business of selling his "farm products in Cumberland" he "was driving with a wheeled vehicle" over a named street in said city "and while so driving said vehicle which was a one-horse wagon loaded exclusively with the products of said farm" and having "no license from the city of Cumberland" he was arrested and taken into custody, and before a justice of the peace and tried and fined under a charge of violating the ordinance aforesaid by so driving upon the streets of said city without having a license as prescribed by said ordinance." Against threatened repetition of this interference with his driving upon the streets of the city of Cumberland as described without first taking out a license as the ordinance which has been recited requires, he asks the injunction. And as reason therefor alleges that the said ordinance "is null and void," and that the said corporation "has no lawful right to pass or enforce the same and that said ordinance is not in pursuance of the defendant's charter and that such exercise of power is against the Bill of Rights and Constitution of Maryland." This last mentioned allegation states the main proposition to be passed upon here.

There are other allegations in the bill besides those recited, but all that could raise any questions for consideration were denied in the defendant's answer and no stress seems to have been laid upon them, and no proof was offered in regard to them. The proof is contained in an agreed statement of facts to the effect that at the time the appellant was arrested he was driving a milk wagon in which he had nothing but milk from his dairy which he was selling to his customers in said city, which milk came from cows kept on his farm; that the city of Cumberland is the only practicable market for his farm products, and that to get to the next market some fifteen miles distant from his farm he would have to pass over the streets of Cumberland, but no effort has been made to enforce the aforesaid ordinance against persons merely passing or driving through said city to other points beyond the city limits; or against persons who do not habitually drive over said streets; that he was arrested as alleged in his bill, and that at the time of his arrest he had no license from the city of Cumberland and no tag affixed to his wagon.

It appears from this state of allegation and proof that the appellant falls directly within one of the classes of persons required by the ordinance in question to take out a license according to its reading, unless he is excepted from its operation by the proviso that has been quoted in connection with the provision of the ordinance requiring a license for peddlers. It seems obvious, however, that this proviso from its position in the ordinance and the connection in which it occurs was only meant, in so far as it relates to farmers, to provide they should not under the circumstances mentioned therein be considered within the class of those denominated peddlers and to be required to take out a license in that character.

Nor is it any valid objection to the ordinance if not otherwise invalid that it is made to apply to all persons using the streets of the city as the appellant was without respect to residence within the city limits. There is no express inhibition upon the Legislature to confer such a power upon a municipal corporation and here the charter of the city of Cumberland confers the general power to exact the license in question and does not restrict it to be exercised only in respect to those residing within the limits of the corporation. No unjust or unfair discrimination is made in exacting of all enjoying the same privilege (in this instance the use of the streets), that they should be subject alike to a regulation which imposes some burden connected with the privilege. The rulings in the cases cited by the appellee's counsel of Frommer v. The City of Richmond, 31 Gratt. 646, and of Tomlinson v. Indianapolis, 144 Ind. 142, are directly in point on this question and express views which commend them to approval. The last named case arose under a charter conferring a power precisely like the one here being considered, and the fact there as to the residence of the party complaining just the same as it is here. The Court there said, "the only contention in truth which can be plausibly urged against the ordinance is that it charges those who drive upon the streets but live outside the city limits, the same license fees charged against those residing in the city; and we do not think the ordinance can for that reason be held invalid. The Common Council, as we have seen, is given by the statute power to pass ordinances to regulate the use of streets and alleys by vehicles. This provision would of itself be sufficient authority to sustain the ordinance. The power to regulate implies the power to license and to exact a reasonable fee for such license. But the statute further expressly provides that the Common Council may pass ordinances to license, tax and regulate wheeled vehicles." Then after alluding to the fee charged and saying there is no objection to such a conclusion because "some revenue is derived from the fees collected or that such revenue is applied to the repair of the streets," the opinion proceeds to say that "no discrimination having been made against the appellant on account of his residing outside the city limits, we have been unable to discover any good reason why he should not pay a license for his vehicle as well as any other person making like use of the streets of the city. Indeed he is at an advantage compared with the city resident; he has paid no tax to improve the streets and yet he uses them day after day in his business quite the same as a resident. It is manifestly but just, that, not having paid to improve the streets, he should at least pay the same license for using them as is paid by those who have themselves paid their share of improving the streets. If this ordinance favors any one it is the non-resident." To the same effect is the expression of views in the case in 31 Gratt. in which there was the same fact that the party objecting to the paying of the license fee was a non-resident.

The main proposition affirmed by the appellant is that the ordinance is invalid because it is an attempt on the part of the corporation to exercise the taxing power in a manner not authorized by its charter and repugnant to our Bill of Rights and the Constitution of the State. The Bill of Rights provides in connection with its declaration of the rule by which taxes are to be laid that "fines, duties and taxes may properly be imposed or laid with a political view for the good government and benefit of the community." The exercise of the power here indicated is legitimate either for the purpose of revenue or as a police regulation. The Germania v. State, 7 Md. 1. It does not seem necessary in this case to go into an inquiry as to what power the appellee corporation has as to taxation. It cannot be doubted that the Legislature had the power to confer on the corporation the authority to "license" and "to regulate" the use of vehicles on the streets of the city and to impose in so doing a reasonable charge or fee and there is as little doubt that this power has been in very clear terms conferred by its charter on the city of Cumberland.

The power professedly exercised by the city under the ordinance in question here was to license these vehicles and the charge imposed is a license fee. The only question is whether the charge as made is such a one as is reasonable and such as not to indicate an abuse of the power. Vansant v. Harlem Stage Co.,59 Md. 330. This case was relied upon by the appellant, but it is not perceived how it supports his contention. It involved the construction of the Act of Assembly, 1880, ch. 69, giving the Mayor and City Council of the city of Baltimore power "to license and regulate all carriages and other vehicles owned and used within the city" the revenue derived from such licenses to be applied to the paving, c., of the public highways and an ordinance passed in pursuance thereof. Under this power the city, on the 28th of April, 1882, passed an ordinance imposing a license tax upon vehicles used in the city and placed the charge of $75 as an original license on omnibuses. The appellee in that case being owner of a line of omnibuses refused to pay this charge and tendered renewal license fees for its omnibuses for which it had taken out licenses for the previous year under an ordinance then existing at the rate prescribed by that ordinance and for three new omnibuses tendered the rate charged in the new ordinance "for a hackney coach, cab, buggy, wagon or other four-wheel pleasure carriage kept for hire" and upon being refused licenses upon such tender sued out a mandamus, which was granted by the lower Court, to compel the issue of the licenses upon the tender made. This Court passing upon the case upon appeal fully recognized the validity of a reasonable charge for license by affirming the judgment of the lower Court in granting the mandamus and only treated the charge made in the ordinance against the appellee and other owners of omnibuses as void because the Court found first, that no power to levy this amount or any amount upon vehicles of any description as a tax by the city was given by the Act of 1880, ch. 69, and secondly, that it appeared clearly from a construction of the ordinance that the charge against owners of omnibuses was charged as a tax and therefore was invalid if for no other reason for the want of power conferred upon the city to levy any such tax — thirdly, that it was an excessive and unreasonable charge under the power to license and was not valid as a license fee. The case therefore virtually turned upon the charge for license being unreasonable and excessive.

As we have seen the charge to the appellant here, professed to be for a license which the corporation of Cumberland had the clear power to charge. Two dollars and a-half would not seem to be an excessive and unreasonable charge to require to be paid for the use of the streets of the city for a year. The corporation is primarily the judge of what is a reasonable charge under the power to license. Vansant v. Harlem Stage Company, supra. In this case it was said "it may well be conceded that the Mayor and City Council of Baltimore are, primarily at least, the judges of what is a reasonable fee for licensing and regulating the omnibus lines and that it is not within the legitimate province of a Court to fix the precise amount to be charged them;" and again, "we may even go further and say that where there is a doubt whether the amount so fixed was reasonable or not a Court should be slow to reverse the judgment of the City Council and that every fair intendment should be made in its favor." Giving the benefit of such intendment to the appellee here there is nothing to disclose to the Court in this case that the power it exercised in enacting and enforcing the ordinance in question was not used fairly and judiciously and in a reasonable manner. The charge to which the appellant was subjected, therefore, was one which the appellee had the right to exact under the power to require licenses to be taken out by parties using the streets with vehicles as the appellant was. This is not all however. We have seen that the appellee was given under its charter the right "to license, tax and regulate." This power to tax had no reference to the power to tax for general purposes, but it was a power accompanying the power to license and regulate. It could properly be exercised under the police power and it was no valid objection to its exercise that revenue was derived therefrom. It is not in legal contemplation a tax on property nor a double tax. This view is well illustrated in the cases to which reference has already been made in 144 Indiana, Tomlinson v. Indianapolis and 31 Grattan, Frommer v. City of Richmond, and has received direct sanction by this Court in the case of The Germania v. State,7 Md. 1, supra.

The decree of the lower Court refusing the injunction prayed in this case and dismissing the bill of the appellant will, for the reasons herein set out, be affirmed with costs to the appellee.

Decree affirmed with costs to the appellee.

(Decided January 18th, 1901.)