
    City of Memphis v. Battaile & Co.
    Peivilege Tax. Drays. Oity Ordinance.
    
    A city ordinance taxing “every owner of a wagon or other vehicle, kept or used for free delivery of goods to customers or others in the city,” imposes the tax on drays, belonging to an iron works situated outside the city limits, hut used for delivery of their wares within the city.
    EKOM SHELBY.
    Appeal by the City of Memphis from the judgment of the Second Circuit Court, on an agreed case, September Term, 1871. Ikying Halsey, J.
    W. M. Randolph for the plaintiff said:
    The defendants are arrested and fined in two cases, for running drays or wagons in the city of Memphis without licenses.
    By the amended charter of the city of Memphis, passed December 1st, 1869, the General Council has power “to license and regulate drays, carts, hackney coaches, and other vehicles used in the city.” See ch. 26, s. 39, Private Acts of 1869-70.
    Under this power the General Council of the city passed an ordinance, requiring every owner of a cart, wagon, or dray, drawn by one horse, and not including carriers of passengers or baggage, running for hire, to pay $10 per annum for a license; a two-horse vehide, as mentioned in the last paragraph, to pay $20 per annum; a three-horse vehide, $30 per annum.
    Every owner of an omnibus, hack, carriage, or other vehicle, seeking custom upon the streets, or visiting the railroad depot, or steamboat landing, or other public places, for the purpose of procuring custom, $20 per annum. Every carriage, or other vehicle, kept exclusively for hire for use at funerals, for each vehicle per annum, $20.
    What precedes, constitutes sections 20, 21, 22, 23, 24 of the Amended Privilege Ordinance, passed April 14th, 1870. Section 25 of the same ordinance is as follows: “ Every owner of a wagon, or other vehicle, kept or used for free delivery of goods to customers, or others in the city, for each vehicle per annum, $10.
    It was on a charge of using two drays in the city for free delivery, in violation of section 25, that the defendants were arrested.
    They appealed the cases to the Second Circuit Court, where an agreed case was made up and submitted to the Court, and a judgment pronounced upon it for the defendants, and the city has appealed in error.
    The facts are, that the defendants have a “rolling mill” for the manufacture of bar iron, situated on Wolf river, north of, and outside the limits of the city of Memphis, and own two drays, which they keep at the mill; one one-horse, and one two-horse, which they use in hauling scrap-iron from points within .the city to their “ rolling mill,” and in . hauling and delivering bar iron within the city, to merchants and dealers in iron in Memphis, and elsewhere, to whom they sell the same, and also for other purposes about the “ rolling mill.”
    The defendants reside outside the limits of the city of Memphis. The drays are not run for hire, but are used solely for the purpose of free delivery to purchasers in the manner above stated, and by the defendants as above stated.
    Two points are relied upon by the defendants below:
    1. That the defendants were not required to take out and pay for licenses for their drays, because they resided outside the city.
    2. That the ordinance did not embrace drays employed in the free delivery of articles within the city, inasmuch as they were not named, and the expression “ wagons, or other vehicles,” are not broad enough to include them.
    I. It is to be remembered that the tax in this case is not a tax upon property; and, hence, the decisions in the class of cases to which the Railroad Company v. Jaekson, 7 "Wall., 262; St. Louis v. The Ferry Company, 11 Wall., 423, and Railroad Company v. Pennsylvania, 15 Wall., 300, belong, have no application.
    The tax levied by the city is a license tax, and is imposed upon the using of the vehicles within the limits of the city. It can not be seriously questioned that the’ Legislature had the constitutional power to authorize the city to license and regulate the using of the vehicles within the city, in the manner that it has done: Dillon on Mun. Corp., § 291 and note 1.
    
      The power authorizes the city not only to require the taking out of licenses by. persons using vehicles within the city; but, as a mode of regulating them, to levy a tax upon them, -charge a sum for the licenses. This was decided in 1840, in Hodges v. The Mayor and Aldermen of Nashville, 2 Hum., 61, 67-8. And see Dillon on Mun. Corp., §§ 291 609.
    The only question that could arise in this connection, is whether the- sum charged for the license by the city is reasonable or unreasonable. If the sum is reasonable, then it is proper to charge and collect it: Dillon on Mun. Corp., §§ 291, 292, and notes; Cooley’s Con. Lim., 201, and cases cited.
    But this question is not presented by the record, as the facts to enable the court to determine the reasonableness, or unreasonableness of the amount charged are not set out: Mayor and Aldermen of Columbia v. Beasley, 1 ' Hum., 232.
    If the license tax is upon the occupation, it would seem not to need argument to show that it was immaterial where the person engaged in it makes his' residence. Thus, if the license is required for using the vehicle within the city, and the payment of the sum prescribed is a condition precedent to obtaining the license, whether the applicant resides in one place or another can not affect his right: Dillon on Mun. Corp., § 630, and cases cited.
    All that non-residents have usually claimed is that no other or greater tax shall be levied upon them than is levied upon residents exercising the same occupations: Nashville v. Althrop, 5 Col., 554; Ward v. Marylandy 12 Wall., 418. See ■ as having relevancy to this question: Paul v. Virginia,- 8 Wall., 168; Ducat v. Chicago, 10 Wall., 410.
    If the city could license and regulate only vehicles owned by residents of the city, it is apparent that every one owning vehicles would remove just outside the corporate limits, and thereby the- object of the provision of the charter would be defeated. See on the question: State v. The City Council, 2 Speer, So. Car., 625, 727.
    II. The other question is, whether “ drays ” are included in the expressions, “wagon or other vehicle,” used in section 25 of the city ordinance.? •
    This section is to be construed in connection with the preceding sections 20, 21, 22, 23 and 24, and so construed, there is no difficulty in understanding “drays” to be embraced by the words used.
    In section 20 the word “vehicle” is not used at all, but the particular vehicle intended to be licensed, “carts, wagons, or drays,” are specially mentioned. In the next two sections, 21 and 22, the word “vehicle” is used to embrace all that are mentioned in section 20. Here it evidently includes “ drays.”
    In section 23, “ omnibuses, hacks, carriages ” are specified, and then the phrase “or - other vehicle” is used to embrace structures not included within the specific designations, and at the end of the section in prescribing- the price, “vehicle” is used to include all that the section previously mentions, either specifically or generally.
    In section 24, only “carriage” is named, and then the words “ other vehicle ” are used to embrace all that do not come under the name “ carriage.”
    Then follows section 25, which is the one before the Court, and that specifies only “wagons” and then employs “or other vehicles” to include something more than “ wagons.”
    “Vehicle,” we have seen, has -been used in the preceding sections, and to include every structure that the General Council intended should be licensed. Its meaning has not been confined to any particular class. I contend it should have the same signification in section 25 as in the preceding sections. Webster says the word “vehicle” is “any kind of carriage moving on land, either on wheels- or runners. This word comprehends coaches,’ chariots, gigs, sulkies, wagons, carts of every kind, sleighs and sleds. These are all vehicles. But the word is more generally applied to wheel carriages, and rarely, I believe, to water craft.”
    I am aware of the case of McGrath v. Loague, 6 Col., 340, and admit that it apparently puts a construction on a statute having some resemblance to the city ordinance, different from the construction I contend for.
    But I submit; first, that the decision is wrong. The expressions there construed did naturally and necessarily include drays, and the court, by its decision, refused to recognize the plain and established meaning of words familiar to every man of ordinary understanding. Second, even- if the decision in McGrath v. Loague was right, it does not prove this case.
    T. B. Edgington, for the defendants,
    argued that carts and drays running for hire are taxed $10 for one-horse drays, and $20 for two-horse drays, while all carts and drays for free delivery are not required to pay any privilege tax.
    Section 20 reads carts, wagons, drays, and other vehicles. .
    Section 25 reads wagons and other vehicles. -
    By comparing these two sections, it will be seen that when the city means to tax drays it says drays, as in section 20, but in section 25 it omits to name them.
    The term “other vehiclesloes not include drays: McGrath v. Loague, 6 Col., 340; Iteiche v. Smythe, 13 Wall., 162; Homer v. The Collector, 1 Wall., 486. This ordinance was passed since the rendition of this decision, and therefore has been made with that in view.
    Free delivery drays therefore, whether drawn by one or two horses, are not taxed under and by virtue of any city ordinance. No license is imposed on the owner.
    Drays are not taxable under the laws of the State: McGrath v. Loague, 6 Col., 340, and therefore not being taxable under the laws of the State, they can not be taxed by the city: Mayor of Nashville v. Thomas, 5 Col., 600.
    The city has no power to tax drays unless it is conferred by sec. 39 of the city charter: See acts of 1869-70, p. 234. The State not having the power to tax drays under existing laws, it is difficult to see how it could delegate to a subordinate, a power which it did not itself possess, upon the same principle laid down in 5 Col., 600.
    
      But if the city has power under its charter to tax ■drays, its jurisdiction is limited to the territory embraced within the corporate limits, and any levy of a tax on property not located in the city and not owned in the city, is simply' void: Mayor v. Thomas, 6 Col., 612, 614, citing Meelcin v. New Albany; Cooley on Con., 499, 500; People v. Supervisors, 11 N. Y. 563; Mygatt v. Washburne, 15 N. Y., 316; Brown v. Smith, Hartland v. Chureh, 47 Me., 169; Lessee of Hughley v. Howell, 2 Ohio, 231.
    Every owner of wagons or other vehicles kept or used for free delivery, etc., must pav §10 per annum. Mark the language of the ordinance. It taxes the owner and not the dray. The assessment of the tax is in personam and not in rem, as all privilege taxes are, or they would not be constitutional, because not equally imposed. How does the city get jurisdiction to tax a non-resident “owner.”
    It has no such jurisdiction, and this word owner is therefore limited to such owners as it has jurisdiction over; to-wit: residents within the corporate limits.
    The ordinance reaches the property through the owner, and not the owner through the property.
    The words or phrase “ used for purposes of free ■delivery in the city of Memphis,” can not be construed to cover property which is both kept and used and owned outside of the city, and which is only brought into the city incidentally. It would be doing great violence to fairness, to give that phrase so technical and oblique a construction.
    If therefore, it should seem apparent to the Court, that the city did possess the constitutional or legal power to tax persons or property, when neither was located within its limits, for the reason that such property was sometimes brought into the city, yet it is equally apparent that no ordinance has yet been passed assessing such a tax, covering such a class of cases.
    In order to tax such property, (if such power exists,) it must be done by virtue , of a positive law,. which imposes by its express terms, such burdens on the property of non-residents, on account of its being brought within the city occasionally, or frequently, as the case may be. Because the city has imposed a tax on drays generally, it can not be left to implication, that it includes the drays of persons over whom the city has no jurisdiction prima facief and none at all, unless it is conferred by reason of the occasional presence of the property within its limits.
   Sneed, J.,

delivered the opinion of the court.

The defendants were operating a rolling mill for the manufacture of bar iron, near Memphis, but outside the corporate limits of the city. They owned some drays which were kept at the mill, but which were used in the free delivery of iron manufactured at the mill, to their customers and merchants within the corporate limits. The defendants themselves, lived at or near the mill, and without the corporate limits. They used their drays also, in gathering up and transporting to the mill, such scrap iron as they could from time to time, obtain in different parts of the city. A license tax upon the privilege of thus using the drays was demanded of them by the city — which they finally paid under protest, and under an agreement that the question of their liability should be determined by the courts, and if determined in their favor, the amount should be refunded to them. An agreed case was thereupon submitted to the judge of the Second Circuit Court at Memphis, and judgment rendered in favor of defendants. The city appealed.

The city claims the right to demand the license tax in question, under an ordinace in the words following : “ Every owner of a wagon or other vehicle, kept or used for free delivery of goods to customers or others in the city, for each vehicle per annum, $10.” The. ordinance was adopted by the City Council under the authority of the amended charter of the city, passed on the 1st of December, 1869, which gives the city the power to “ license and regulate drays, carts, hackney coaches, and other vehicles used in the city. It is insisted, that the words, “other vehicles” used in the ordinance, do not embrace drays, and in support of this view, an argument is presented based upon the peculiar phraseology of certain preceding sections of the same ordinance, upon the same subject. Thus it is provided in one section, that' every owner of a cart, wagon or dray drawn by one horse, and not including carriers of passengers or baggage, running for hire, is required to pay a license tax of ten dollars a year. Another, and the section next following the above, imposes upon a two-horse vehicle as mentioned in the last section, a tax of $20 per an- mm. The next a license tax $30 a year upon a three-horse vehicle. The next provides that every owner of an omnibus, hack, carriage, or other vehicle,, seeking custom upon the streets, or visiting the railroad depots or steamboat landing, or other public places, for the purpose of procuring custom, shall pay a license tax of $20 for each vehicle. And the next that every carriage or other vehicle kept exclusively for use at funerals for hire, shall pay a license tax of twenty dollars a year for each vehicle. Then comes the twenty-fifth section now in judgment, providing that every owner of a wagon or other vehicle kept or used for free delivery of goods to customers or others in the city, for each vehicle ten dollars per annum. It is urged that the peculiar phraseology of these preceding sections, show by fair construction that it was not the purpose of the council in adopting this ordinance, to include drays in the words “ other vehicles,” and in support of this view, the case of McGrath v. Loague, 6 Col., 340, is cited. But that case in our judgment may be distinguished from this. It involved the construction of the revenue acts of 1867-8, sec. 5, which imposed a privilege tax upon all hacks, carriages, or vehicles running for hire, and it was held that the words in that section, or vehicles running for hire” did not include drays. But the decision in that case is rested expressly upon the ground that the statute undertakes in a subsequent clause, to classify the particular vehicles intended ■ to be taxed, and -fixed the specific tax upon each by name, not including drays.

We think the case in judgment may be rested on other grounds, without positive conflict with that case. When that case was determined, there was no law expressly authorizing the imposing of a privilege tax upon drays, and in a matter of State and county taxation, it was held that in the absence of any positive statute, no such tax could be imposed. In the case before us, the amended charter authorizes the city to impose a privilege tax upon drays, and under this authority, the tax in question was imposed. It must first be considered then, whether it be competent for the Legislature to authorize a municipal corporation to impose a privilege tax upon any corporation, or privilege not taxed by the general law. It was held in the case of Nashville v. Thomas, 5 Col., 600, in regard to the taxation of bank stock, that a municipal corporation could not levy taxation upon properties or privileges, other than such as are taxable under the statutory law of the State. In that case, the city of Nashville had adopted an ordinance taxing the stock in national banks, and this ordinance was adopted under the general taxing power of the municipal government, and not under any special charter privilege, to tax that particular character of stock. In the case before us, the special power to tax drays used in the city, is conferred by the amended charter, and we think the Legislature in the absence of any constitutional inhibition, had the right to delegate this power to the city government.

A city government is a peculiar polity. It is an imperium in imperio. Its. necessities and wants are distinguished from those of the general public, and it has its sources of revenue, which in the nature of things, do not belong to all the State alike. Its burthens are also different from those which rest upon the general public, and those burthens create the absolute necessity for the peculiar prerogatives which have always attached to municipal governments.

It has never been questioned therefore, that the chartered privileges of a city corporation, which distinguish it from the general law, are valid and constitutional, where they merely recognize and make effectual the police powers essential to maintain itself within itself. And among its first duties and burthens, is to establish and maintain safe and agreeable streets and highways for the • public, and they are answerable to the general law if they do not. It would seem therefore, that the use by the owners of vehicles of the streets and highways thus established, would be a privilege upon which a tax might be most properly imposed, and especially that the employment as an occupation of any vehicles upon the streets calculated to injure and wear them away, would be a legitimate subject of privilege taxation, and conceding that such taxation is not authorized by the general law, as applicable to the whole state alike, yet, if it be not forbidden, we can see no valid objection to the exercise of the power in a city government. Thus it has been said by this Court, that the ordinances and modes of administration of municipal corporations, are not invalid as partial laws, for the reason that they are applicable only to persons residing or being within the ■ limits of the municipality: 6 Col,, 390.

The Constitution authorizes the Legislature to create municipal corporations, and to confer upon them such powers as are appropriate to them. We hold there is nothing in the amended charter authorizing this tax that is objectionable, and we are next to consider, whether the words “ other vehicles ” used in the ordinance, include the vehicle commonly called a dray. It seems to us, that the common sense of the proposition must be the law of it, and without further discussion, we hold that a dray being a vehicle other than the vehicle named in the ordinances, is necessarily embraced within its provisions and meaning, and that there is nothing in the section in question, or in the phraseology of the other sections referred to, which forbids this reasonable and material construction of unambiguous words.

But the defendants insist, that they are not living within the corporate limits, and their drays and the animals that draw them are kept outside the city, except when plying their avocation within it, and therefore, they are not liable. We can not yield to this argument. The privilege is exercised within the city and along its streets, and this is the daily business of the draymen and their drays. The privilege taxed is the use of the drays in the city, and it can certainly make no difference where the beneficiary resides.

Reverse the judgment.  