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City of Cincinnati v. Bryson.

1846.

In Bank. city of Cincinnati, according to ordinance of said city.” The Dec. Term,

defendant admitted the fact of refusal to take out a license, but objected to the validity of the ordinances. The Mayor overruled the objection, and the defendant was fined five dollars and costs, $1.05.

The Court of Common Pleas, on certiorari, reversed the judgment of the Mayor, and this writ is prosecuted by the city to review the reversal by the Court of Common Pleas.

The ordinance, passed the 30th of January, 1835, provided, “ that every owner of hackney coaches, wagons, carts, drays, 6 and other four or two wheeled vehicles, who shall cause en• tries to be made, as specified in the fourth section of the ordinance to which this is an amendment, and acknowledge the same by his, her, or their signature, shall receive from the · City Clerk a certificate, stating the number of each coach, ( wagon, cart, dray or other vehicle, as aforesaid, so entered, and the place of residence of the owner thereof; and such certificate shall be presented to the City Treasurer, who shall demand and receive, for the use of the city, of such owner or owners the following sums, to wit: For each hackney coach,

for two or more horses, five dollars; for each barouche, dear"borne, or other four wheeled vehicle, three dollars ; for each égig or other two wheeled vehicle, two dollars; for each wagon, drawn by six or more horses or oxen, six dollars; by four or five horses or oxen, five dollars ; by a less number than four horses or oxen, four dollars; for each cart, drawn by two horses or oxen, four dollars ; for each cart or dray, drawn by one horse, three dollars; and for every pair of timber wheels, five dollars. And on receiving the amount due as aforesaid, agreeably to the certificate of the City Clerk, the Treasurer shall make a particular entry of the same, in a book to be - kept for that purpose, and acknowledge the receipt thereof on the back of such certificate; which receipt, on presentation to

the Mayor, shall entitle the owner or owners thereof to receive ( a license for one year from the date of the same.”

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1816.

An amendment to this ordinance, passed July 3, 1844, pro- In Bank. vided, that “all vehicles named in this ordinance that shall use ' a tire of less width than is herein described, after the first dayof November, A. D., eighteen hundred and forty-five, shall be required to pay fifty per cent. more than is provided for in the ordinance to which this is amendatory.”

An ordinance, supplementary to all former ordinances on the subject, passed January 8, 1846, provided, “that every owner

of hackney coaches, wagons, carts, drays, and other four and two wheeled vehicles, who shall neglect or refuse to take out license, or comply with the provisions of the ordinance now in force, for licensing and regulating hackney coaches, wagons, carts, drays, and other four and two wheeled vehicles, shall, upon conviction before the Mayor, or such other officer as may have jurisdiction, be subject to a fine of not more than - ten dollars, and costs, für every vehicle for which he may re"fuse or neglect to take out such license; and every day such owner shall continue to run said vehicle, without such license, shall be deemed a new offence. “ This ordinance to be in force from and after its passage.”

S. M. Hart, for Plaintiff in Error.

We claim that the power to “regulate” drays and carts, accompanied by the power to “ license" them, confers the power to assess a reasonable tax. We do not mean a tax in its literal sense, but a charge for the use of the streets paved, repaired and cleaned at the expense of the corporation.

In this view, there is a perfect analogy to the case of The City of Cincinnati v. Buckingham, 10 Ohio Rep. 257. The power conferred as to markets was, “to erect, establish and regulate” them. “The due regulation of a market,” said Judge Lane, " demands the expenditure of money, and the • levying of the tolls upon the sellers in market for the purpose 6 of meeting these expenses, incurred mostly for their benefit, is * practiced by all municipal corporations. * * * * The

City of Cincinnati v. Bryson.

Dec. Term

1846.

Js Bank. " sum exacted for the purpose by this ordinance is called, by

''the defendant's counsel, a tax upon the sale of commodities

brought to market; it is, rather, the price demanded for ac".commodations provided to the frequenters of the market by

the city authorities. This very principle, mutatis verbis, ought to decide the present case. To regulate the drays of the city, and the streets, demands an expenditure of money; and a toll levied upon the owners of drays used in transportation for hire, is as universal as tolls levied upon market people are. The draymen, and cartmen, and hackney coachmen, are those who wear out the pavements of Cincinnati, and cause the heaviest expense to the corporation and its citizens. The sum exacted upon a license is the sum charged by the corporation for the accommodation of streets thus provided them, and justice requires that they should pay it.

But the defendant was fined for using his dray to transport goods and receiving hire, without a license. Now, unquestionably, the city may demand, by this section of the charter, that no one shall so use his dray without a license, else improper persons might engage in the business, which it is the very object of this section of the charter to prohibit.

And we take it to be equally so, that the corporation may require draymen to pay the expense of the licenses, if only to compensate the city for the cost of printed or written forms, and the time of the city officers employed, and for nothing else.

Now, if the sum charged for a license be more than necessary to defray those expenses, a certiorari to review the conviction of a man who never took out a license at all, is not the method to reach that question. The error complained of, upon a writ of certiorari, must affirmatively appear of record — not be made out by extrinsic proof, much less by suggestions of counsel or the court; Clements v. Benjamin, 12 Johns. Rep. 299. There is nothing here to show that more than a sum necessary for the very purpose mentioned, was ever exacted.

The defendant might have taken out his license, and, afterwards, in an action to recover the sum charged above the ne

City of Cincinnati v. Bryson.

1846.

cessary expenses, the question might arise, but, surely, not in a IN Bank.

Dec. Term, proceeding of this kind.

And so, if the city has no right to demand a single cent, the defendant cannot here contest the question ; for, as much of the ordinance as requires him to take out a license, is clearly authorized by the charter, and for violating that provision he was fined.

An ordinance may be good in part, though void as to the residue. Rogers' v. Jones, 1 Wend. Rep. 226.

This is not the method properly to inquire into the power of the corporation to exact tolls.

Storer & Gwynne, for Defendant in Error.

Can the City of Cincinnati demand the sum of five dollars for issuing a license to run a dray within its corporate limits ? We hold, as did the Court of Common Pleas, that an ordinance making such a demand is void.

In every question on any corporate right, the right should be manifest; 1 Bay Rep. 389. The powers of a corporation are to be strictly construed; 7 Ohio Rep. 35, part II. The act of incorporation is the law of the city. By the original charter, the city was called into being. By the amended acts, its vitality has been continued, and to them must we look for a a definition of the powers possessed by the city council. An ordinance of the city must be founded upon some power expressly granted therein, or its provisions must be necessary and proper to carry into effect the powers granted. This is a general rule of law, corresponding with section 39 of the act of March 1, 1834, incorporating the city. The ordinance under consideration is neither justified by the words, nor is it necessary and proper to carry into effect any clause of the act. It cannot be sustained under the powers conferred upon the city council by section 8. Those are general in their terms, such as are possessed by all cities, and not intended to reach an occupation like draying, which is neither pernicious nor immoral.

City of Cincinnati v. Bryson.

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IN Bank. Where specific reference is made to the subject in a subsequent

" portion of the charter, language so undefined will not confer more authority than the subsequent specific grant, nor, in fact, could this section be construed to embrace any other right than that which is contained in the clause upon the subject of drays.

We must turn, we suppose, to the 13th section, and upon this the council for the city has rested his claim. That section empowers the city council “to license and regulate all carts, wagons, drays,” &c. What is the meaning of these terms ? The power to regulate drays is the power to prescribe the rules or laws by which drays are to be governed. Such is the common acceptation of the term, and such the definition given in Gibbons v. Ogden, 9 Wheat. Rep. 190; and Buffalo and Niagara Falls Railroad Company v. Buffalo, 5 Hill's Rep. 2u. The power to license drays is the power to permit or authorize drays to run. “The word "license' means permis

sion or authority, and a license to do any particular thing is a permission or authority to do that thing; and, if granted by "a person having power to grant it, transfers to that grantee

the right to do whatever it purports to authorize;" Gibbon v. Ogden, 9 Wheat. Rep. 213. The city council, therefore, can authorize drays to run and prescribe the rules by which they are to be governed when running. No power is given to exact money for their permission. If it is discretionary with them to withhold that permission, that discretion must be a sound one. They must act from convictions of right; should neither be quickened nor influenced by a payment of money, either to themselves or to the city.

We do not deny that incident to the power of license may be the right to charge reasonable fees for the labor of the different officers in issuing the certificate and license, as in 14 Wend. 89; but the ordinance does not purport to provide for this; the money does not go to the officers, and it is far more than they would have any right to demand. It passes into the city treasury, is received by the terms of the ordinance for the use of the city, and the sum charged for licenses, under the

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