City of Cincinnati vs. Peter Bryson

Birchard, J.

Our inquiry is directed to the validity of the ordinances adopted by the city council. Their powers are those expressly conferred by the act of incorporation, and such as are necessary to carry them into effect. By the 8th section of the act passed March 1, 1834, the council has “power to ‘ make and publish all such laws and ordinances, as to them ‘ shall seem necessary, to provide for the safety, preserve the f health, and improve the morals, order, comfort, and conveni- * ence of said city.”

By the 13th section, it is enacted thus: “ They shall have ‘ power to license and regulate all carts, wagons, and drays, and ‘ every description of two and four wheeled carriages which { may be kept in said city for hire.”

The objection to the ordinance rests solely on that provision which authorizes the demand of a fee, as a prerequisite to the licensing of a drayman. In general, the authority to license carries with it the power to impose the terms and conditions upon which it shall be granted. It would seem that the right to license and regulate, and to provide by ordinance for the carrying into effect the powers expressly conferred upon them, are sufficient to justify all reasonable acts incident to the business.

As usually received by mankind, particularly when applied to a municipal corporation, “ to license and regulate ” draymen, &c., implies the right of fixing the terms upon which they shall be permitted to exercise their calling, and of forbidding the exercise upon any other than upon the terms and in the manner prescribed. Such appears to have been the view of this Court in Buckingham’s case, (10 Ohio Rep. 261,) wherein it was held that, under the grant of a power to regulate the markets, the council had the right to exact a tax from the owners of the market wagon using the market. That case appears, in principle, not to be distinguishable from this.

In Boston v. Schaffer, 9 Pick. Rep. 419, suit was brought to recover one thousand dollars, exacted for granting a license to theatrical exhibitions. The Court said, £t if the one thou- £ sand dollars were to be regarded as a tax, it was not compe- £ tent for the Legislature to grant to the city of Boston the £ power to collect it.” ££ That it was not a tax; it was in the £ nature of an excise on a particular employment.” ££ The £ levying of an excise has been practiced in regard to other oc- £ cupations, and the constitutionality had never been doubted.”

The Court in that case held, that it was proper that towns, when put to expense by the exercise of particular employments, should be compensated., So in this case, the employment of drays, hacks, omnibuses, and other heavy vehicles, upon their pavements, cause no inconsiderable amount of expenditure to the city in the way of repairing the streets and alleys. It is manifest to every one, that, in a large city, vehicles of this description cause great destruction to the public ways; far greater than the usual ordinary travel of citizens otherwise employed. There is, therefore, no injustice in exacting a reasonable portion of the expenses which such special occupations cause to the community; and those who enjoy the special privilege, can refuse to bear a reasonable portion of the burden but with an ill grace. But aside from all this, it is unquestionble that the power to license and regulate drays, &c., authorized the assessment and collection of a fine from any one running such vehicle without a license. It was for this offence that the fine was assessed by the mayor.

The case made by defendant shows that he did not even ask a license. The city council had a clear right to exact all reasonable expenses; and if the ordinance provides for any thing beyond what was reasonable under the circumstances, the fact should have so appeared affirmatively. It should not be left to be made out upon the inference of the Court, as a matter of ingenious speculation, or upon the statements of counsel. It matters little by what name the sum to be paid for license is called, if it be but a reasonable charge; and if it were unreasonable, the appropriate and - reasonable sum should have been tendered and the license demanded. Instead of doing this, the whole ordinance and city authority were set at defiance.

Bryson had no right to disregard those parts of the ordinance which were strictly legal, and which a court would enforce, even if some parts of it were illegal, and such as a court might not enforce. His rule of construction is one that no court would adopt; for in construing statutes, the rule is to enforce them so far as they are constitutionally made, rejecting only those provisions which show an excess of authority by the enacting power. The same rule of construction must govern in passing upon the validity of the ordinance duly enacted by the city council. Bryson might have paid the fee required of him, under protest, and have taken his license, and then contested the question, whether it was reasonable or unreasonable, in an action to recover back the three dollars thus paid. He chose to take the construction into his own hands, and assume, in the. first instance, that the city council had exceeded its authority, and that the entire ordinance was void ; and he must abide the consequence of running his dray without any license in defiance of the city.

But it is again urged that the whole ordinances are void, because they are in restraint of trade and levy a tax. If this were the true character of the ordinances, they could not be sustained.

We, however, do not- view them .in any sil’ch light. . The gives, the drayman .or hackman special: privileges, which he enjoys. to. the prejudice of the. city, in the. injury necessarily dope to her streets and pavements, th an amount far. greater, .than -any benefit to be derived: from- the price of thé license; excluding the necessary burden of supervision. Nor doesthe .case show that, threedollars is too. much, to payasa reasonable fee for issuing.the .license, and the keeping the. necessary registers. 1

Judgment reversed, and the judgment rendered which should have been rendered by-the Court of Common Pleas.

Read, J.,

dissenting. I cannot concur’ in the opinion of the Court-just pronounced.

The charter itselif fully establishes the distinction between the power to “ license and regulate,” and the power to tax. Sec. 11 provides, that the city council shall have-power to license theatres, taverns, auctions and ferries, on the Ohio river ; and, .in granting the license; the city council:may “exact, demand and c receive such sum or sums of money as they shall think fit and c expedient.” Sec. 14 provides, that to defray the current expenses of. the city, the, city council shall have power to levy and collect taxes on the real and personal property therein, as ihe same has been, or shall be appraised and returned on the grand levy of the State. Sec. IB provides simply, that the city council shall have power to license and regulate all carts, wagons and drays, and- every description of two and four wheeled carriages, which may be kept in said city fo.r-hire. No power is given- in this section; a.s is given by the eleventh section, to exact “ such sum of money as they may deem fit and expedient.” The insertion of that power in section eleven, and the omission of it in section thirteen, is of itself sufficient to give ■ a construction to .the charter adverse to that claimed by the city council. I am of opinion that this construction is conclusive.

But. there are twoother objections to the decision of the Court, viz:

First :. That, independent of the aid derived from a corn-; parison of the-different sections of - the charter above quoted,- • the power to “license and regulate” doesnot embrace -a power-V ’to raise atax;- and, . . /

Second: If even the charter did propose to confer that, power,• it would be unconstitutional and void, as an infringe-, ment of the right Of every citizen-to earn a livelihoodby honest; industry. . . - :

I hold that the words to “ license and regulate,” in the city charter, do not confer the.power to impose a tax upon the owners of drays and other wheeled vehicles, or to raise a fund from such owners for general city purposes: . These words. barely confer a police power, and may authorize the city council. to-require such owners to register their names, and number -t-hjejf dray or other carriage, and to charge a reasonable fee for-such entry or registration, but nothing more.

The charge of three dollars upon draymen, imposed by the ordinance, is not in the nature of fees, but of revenue, to go into the treasury of the city for- general purposes.

It is a tax- upon émployment, and not upon property. ■ -The property — the dray and horse r--is assessed according :to its value, as other property, apart- from the three dollars imposed by this ordinance. But it is said that Bryson, in - this case;- is not resisting the payment of the three dollar tax, but the penalty adjudged for not complying with the- ordinance, requiring him-to take out his license as a drayman. That will not help the. case -; because, if thé city council had the-power to compel every drayman to take but a license, and to impose a penalty for violation of the ordinance requiring such license,- yet, if the city impose a condition precedent, to the grant of such license, which is illegal and void, and refuse, under the ordinance, to issue the license unless -such conditionbe complied- with, the whole ordinance is void, and no penalty can be enforced -for its nonperformance. If the city ha.ve no authority :to require three dollars to be paid to obtain a license to exercise-the employment of a.drayman or cartman, and refuse to grant a licehse unless such three dollars be paid, it would be absurd to say that a penalty could be imposed for the nonpayment of the three dollars and the not procuring a license. The city refuse to grant the license unless the sum of three dollars be first paid; and, if there be no authority to require the payment of three dollars, for a license, the coupling a power which they have, to wit, to license, with a power Which they have not, to wit, to charge three dollars as a condition precedent to such license, renders the whole ordinance a nullity, and also all other ordinances, or parts of the same ordinances, which impose a penalty for its violation.

This leaves the naked question, have the city the power, under their charter, to impose a tax upon the employment of draymen, cartmen, &c. ?

If the city have the power, it must be derived under the charter. Did the Legislature intend, by the words to “ license and regulate,” to confer upon the city council the general power to tax the employment of draymen and cartmen ? Because, if the city have the power at all, it is a general power; for the amount of the tax is not limited by the charter, but left to the discretion of the city authorities. Hence, if they may impose a tax of three dollars, they may impose a tax of three hundred. But it is said that it is a power to impose a reasonable sum. Who shall judge of the reasonableness or unreasonableness of the sum imposed ? If the power exists at all,, it exists to be exercised at the discretion of the city council. If they exercise a discretion which they possess, who shall control it ? What is the limit? — what is the rule? Even could the exercise of this discretion be brought in review before the courts of the country, what would be the mode to determine whether the amount charged was too large ? Nothing but the discretion of the Court. So, at last, the matter, in some shape, would be left to discretion. And if three dollars might be charged, so might a larger or an indefinite sum. But the truth is, if the city council have the power to tax at discretion, the exercise of that discretion, on their part, is the end of the matter, and it is not subject to review. The council, in such view, are the judges of their own discretion. It has been said, by high authority, that the power to tax implies the power to destroy; and where the generál power to tax exists, as in the State, I know of no limit to its exercise, except the discretion and judgment of those who are to exercise it, and that it must be equal and operate upon all alike.

Did the Legislature intend, then, to confer any such power upon the city council ? We find that in all cases where the city is authorized to raise revenue, the charter imposes a limit to its exercise. The words to “ license and regulate,” do not expressly confer the power to tax, but such power, if it exist, is implied. Now the power to tax is not necessary to the exercise of the power to “ license and regulate,” and hence, upon the well settled doctrine of construing charters, should be denied. Nor can it be presumed that the Legislature have conferred a power not expressly conferred, or absolutely necessary to the exercise of such power so conferred. In certain cases the Courts of Common Pleas are authorized to grant licenses; suppose such power to license was conferred upon the Courts of Common Pleas, and the statute conferring such power fixed no sum to be paid for the grant of such license, would any man in his senses contend that the Court would have the right to fix such amount as it saw proper, to be paid as a condition precedent to the grant of such license ? The word “ license,” then, does not confer the power to tax, nor is the power to tax necessary to the exercise of the power to license. We must infer, then, that the Legislature intended merely to confer the power of police regulation, and not the power to tax or raise revenue.

But it is said, it is reasonable to impose this tax upon dray-men, cartmen, &c., because they wear out the streets. The suggestion is without force. The streets are not constructed or repaired out of the general funds of the city, but are a charge upon the owners of lots abutting upon such streets. Their property is only valuable in proportion as the streets are worn by use. Besides, the money raised by the tax imposed upon the draymen, is not applied to the repair and preservation of the streets, but is paid into the city treasury to swell the general fund. It is made a source of general revenne.

It is suggested that the sum thus charged under this ordinance is to pay the expense of registration, &c., as fees. This is not only not true, but it is not even pretended by the city.

The truth is, it is a naked and barefaced effort to shift the burdens of the city expenses from property upon labor, and to levy a tax, not in proportion to the value of property owned, or the moneyed ability to pay, but Upon employment. In this there is not a shadow of equity, because, if the streets are never cut by drays, it is this very business that gives value to property, and increases rents. Besides, it should not be the poor drayman who should be taxed for the wear of streets, but the wealth and commerce which he is the humble instrument of transporting.

I cannot believe that the Legislature intended to confer any such power, nor can it be inferred from any known rule of construction, but is in direct opposition to the well established rules applicable to the construction of charters, and, beyond all this, in the direct face of the constitution.

Hence, the Legislature would have no authority to confer the power claimed. If there is a power to license, in the sense ■claimed, there is a power to prohibit. The Legislature has no power to prohibit a man from exercising an honest employment. The right to labor is an inherent and natural, as well as constitutional right. The law has assigned an ownership to all that can aid man to live — to all that constitutes food or clothing. The only mode by which those born naked into the world can obtain support, by acquiring that which will preserve life, is by the consent of the legal holder, or through the provisions furnished to the destitute under the poor laws. Property seldom comes by gift; the poor obtain it by labor. The right to labor is coupled with the right of life, and is a necessary principle of self-preservation. Without labor, man would perish. It is the only mode in which shelter, and raiment, and food can be obtained. Good v. Zerche, 12 Ohio Rep. 368.

The constitution has declared, that the right to acquire property is a natural, inherent and unalienable right.

Labor is the exercise of the right of acquisition. Hence, the Legislature has no right to tax or interrupt such right. To talk of granting a license to a man for the privilege of pursuing honest labor, is an insult to the age, and belongs to a period of despotic barbarism, and is fit only to be addressed to vassals and slaves. Every person, by natural right and under our constitution, has the right to .pursue honest labor without permission or license to do so from any source, except from that great and good God who gives him health and strength.

But the monstrous assumption has not only been asserted, claimed and exercised by the city to license the honest occupation of a drayman and cartman, and of the man who drives two and four wheeled vehicles, as a means of obtaining a subsistence, and to charge them a sum of money for the grant of such license, but the city is maintained in this constitutional outrage by the decision of this Court. It is not pretended that the man of wealth, who uses the streets for his pleasure, in his carriage, can be taxed for that privilege because he wears out the streets; but the- man whose necessities, for the support of himself, force him to pursue the occupations of a drayman or cartman, must buy the privilege, and pay a sum of money to be permitted to pursue such employment.

But, it is said, that in Boston excise laws have been supported. If such be the case there, no such laws exist or can exist in Ohio. There is no power in the Legislature to tax any honest. occupation, trade or industrial pursuit. If this were the case, any particular class of men could be utterly ruined by the majority imposing upon them the whole burdens of the State. Our constitutional mode of taxation is, to assess each man according to the property he owns. This is the only protection to each class. In this all find security, as a whole community will not be likely to ruin itself by taxation. But, if one class of men may be taxed, it will be the interest of the majority to impose such tax, to escape themselves. If you may tax dray-men and cartmen, you may blacksmiths and carpenters, and so on until property shall be relieved from taxation, and the whole burden fall upon industry. The lawyers were the first to fall victims to this violation of principle. Now draymen, cartmen, &c.; and who next, is to be seen. We are yet a young State, and unless these outrages upon the constitution and natural right be resisted and checked, they will grow into precedent, which, in the end, will sap the foundations of our liberties and overthrow our free institutions.

It will be endeavored to withdraw this case from a tax upon employment. It cannot be done. It is nothing else. It is a charge upon the occupations of draymen, not as fees, but as revenue.

I hold, therefore, that the ordinance is a nullity, unconstitutional and void.