City of Cincinnati v. Bryson.

'that if any shall work one not so allowed, he shall forfeit 138. IN BANK. '4d." And in Hilary Term, 31 and 32 Charles II, we are told,

that it was adjudged by the whole Court: "That the bylaw

was not good by reason of the fine and rent, but in all things 'else very good; and so a procedendo was denied." Now, it is wonderful that the dust should be so industriously cleared away from this page of Sir Thomas Raymond, when, within a few years, the validity of this very ordinance has been before the Court of King's Bench. And it was adjudged, by the whole Court, a good ordinance. Shaw v. Pope, L. B. & Ad.

465.

With this case, falls the high authority of the municipal court of Boston.

We have thus far argued only upon the force of the power to regulate, and omitted to notice the power to license, with which it is coupled. And in regard to the extent of a power to license, we beg leave to borrow the case of The State v. Roberts, 11 Gill & Johns. 506, from our opponents. "That ' a license is a tax," said Judge Archer, "is too palpable for ' discussion, unless there is something in the idea that it is a 'political or police regulation." Now, the defendant's counsel have stoutly asserted, upon the seventh page of their argument, that our ordinance is not "a police regulation ;" to which we entirely agree. It is indisputable, therefore, that the grant of a power to license drays, in the charter, is a power to tax them by means of licenses. Congress," said Judge Archer, "possessing power to lay taxes, under that power impose taxes by means of licenses." And the delegation of a power to tax, in the terms of a power to license, is clear, in the present instance.

This proposition established, it is entirely unnecessary to argue the question whether this ordinance be or be not in restraint of trade. That might be well objected to the legislation of the city council, but no such objection can be interposed to the legislation of the State government,

Dec. Term. 1846.

IN BANK.

City of Cincinnati v. Bryson.

To be sure, if, in the execution of this power, the city counDec. Term, cil has enacted an ordinance which improperly restrains trade,

1846.

it would be void; but there is no pretence of that character set up.. The only restraint pretended, is the tax itself, and the Legislature has not regarded that a sufficient reason for refusing the power of taxation, in this particular, to the city council. It did not regard the objection as forcible, in the case of markets, and, thereupon, took away the power by an amendment of the charter. And it may be observed, that in the English cases cited by our opponents, the municipal bylaws have no sanction from the Legislature at all, and altogether stand or fall upon their own reasonableness or unreasonableness.

When we turn from these to American cases, we find that bylaws depend for their validity solely upon the language of the charter. Dunham v. The Trustees of Rochester, 5 Cow. Rep. 462, has been repeatedly evaded by the same Court which decided it, if not, in effect, overruled. Village of Buffalo v. Webster, 10 Wend. Rep. 99. And it was presented to this Court as a leading authority, in the case of Buckingham, and entirely disregarded.*

The City of Boston v. Schaffer, 9 Pick. Rep. 418, however, presents authority to strengthen every part of our argument. The councilmen of Boston were empowered, by the charter, to license theatrical exhibitions "on such terms and conditions as to them may seem just and reasonable," and it was decided that they could exact money for a license. A power so expressed is just the power to license and regulate, conferred upon the city of Cincinnati, and nothing else.

The defendant's counsel, however, criticise this case to the effect, that the constitution of Massachusetts allows a tax upon occupations, which the constitution of Ohio does not. Now, we have to correct this by the remark, that the constitution of

In the case of The Village of Buffalo v. Webster, the former case of Dunham v. The Trustees of Rochester was distinguished from it, and declared to be a decision solely to the effect, that when a huckster had taken a license from the State commissioners, no municipal corporation could take away his privileges under that license.

City of Cincinnati v. Bryson.

Dec. Term,

1846.

Ohio has no power of taxation at all expressed; the only word IN Bank. in it upon the subject is, that poll taxes shall not be levied. Our government, therefore, has no power to tax any thing, or else every power except that of poll taxation. We prefer the latter doctrine, and insist that taxes upon trades, or excises, are constitutional in Ohio. And, in fact, we have an act taxing lawyers and physicians, and this Court has affirmed its validity. Why not tax the privilege of a drayman, as well as the privilege of the counsel who represents him? We trow, the profession of the law, at least in the estimation of our opponents, is not one "the subject matter" of which is a "nuisance.” Yet they assert, that only such species of trades and professions can be taxed.

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 health, and improve the morals, order, comfort, and convenience of said city."

6

6

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 busi

ness.

IN BANK.

Dec. Term, 1846.

City of Cincinnati v. Bryson.

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, "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

City of Cincinnati v. Bryson.

running such vehicle without a license. It was for this offence IN BANK. Dec. Term, 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.

1846.