In Re Fine , 124 Or. 175 ( 1928 )

Chapter 371, Section 26, page 729, General Laws, 1921, reads, so far as applicable, as follows:

"The registration and license fees imposed by this act upon motor vehicles, motorcycles, motor bicycles, motor trucks, trailers, semi-trailers and other road vehicles in this act described and upon the owners thereof by reason of such ownership, shall be in lieu of all other taxes and licenses, except municipal license fees under regulatory ordinances, to which such vehicles or the owners thereof by reason of such ownership may be subject; * *"

This statute prohibits the City of Oregon City, as well as all other municipalities within the state, from imposing a license upon any motor vehicle except for regulatory purposes: Parker v. City of Silverton, 109 Or. 298 (220 P. 139, 31 A.L.R. 589). A license imposed for regulatory purposes only should not materially exceed the expense of issuing the license, inspecting and regulating the vehicles so as to require their compliance with the regulations imposed by the ordinance. It is probable that such a license fee cannot be exact. It is impossible to anticipate the exact expense which may be necessarily incurred in enforcing such an ordinance. Such expense, however, can be anticipated and estimated approximately. The City of Oregon City cannot, under the guise of regulating motor vehicles, impose a license for revenue purposes or prohibit the use of the streets of that city by such motor vehicles except on condition of procuring a license for that purpose: Dent v. Oregon City, 106 Or. 122 (211 P. 909).

In our opinion the license of $120 a year is far beyond an amount requisite for the purpose of regulating the use of the streets by "wholesale trade vehicles" including the expense of issuing the license. The city claims the right to impose such license for revenue purposes since it has the authority to impose a license for regulation. It expresses its position in the following language:

"There can be no doubt but that Oregon City, under its charter, has the authority to license, tax and regulate different classes of business and occupation carried on within the city. Having the authority to license, tax and regulate business and occupations, the council must determine and fix the amount to be paid to carry on the particular business licensed and taxed."

The ordinance does not provide for any additional officers or extraordinary expense. Said ordinance, attempting to levy a tax upon "wholesale trade vehicles" as well as a license for regulating such vehicles, is in contravention of said Chapter 371, Section 26, supra, and is therefore void.

It is unnecessary for us to discuss or pass upon the other issues presented by the petition and return thereof, since we hold the ordinance to be void for the reason assigned above.

A judgment will be entered sustaining the writ and discharging the petitioner. WRIT SUSTAINED.