Opinion
No. 26532
Decided April 20, 1938.
Constitutional law — Municipal corporations — Compulsory inspection of motor vehicles — Local police regulation not in conflict with general laws — Section 3, Article XVIII, Constitution — Ordinance not unreasonable or discriminatory — Not interference with intrastate or interstate commerce — State registration fee an excise tax — Municipal inspection valid until state preempts field — Municipality empowered to regulate use of streets — Sections 3632 and 3714, General Code — Taxpayer may maintain injunction against enforcing ordinance, when.
APPEAL from the Court of Appeals of Hamilton county.
In the Court of Common Pleas the plaintiff, a taxpayer, sought an injunction to prevent the officials of the city of Cincinnati from enforcing an ordinance providing for inspection of motor vehicles operated upon the city streets.
The plaintiff's petition reads as follows:
"Now comes the plaintiff, Edward F. Mayer, 4537 Glenway avenue, Cincinnati, Ohio, and says that on or about the 17th day of November, A.D. 1936, as a taxpayer of the aforementioned city, he made a written request upon the solicitor for the said city of Cincinnati, Ohio, demanding that said solicitor institute the present action. Plaintiff further says that thereafter the said solicitor failed and expressly refused to so do as per that request, wherefore plaintiff has been forced to commerce and bring said action for and on behalf of the city of Cincinnati and the taxpayers thereof.
"Plaintiff says that the defendant, John H. Ames, 5648 Ridge road, Cincinnati, Ohio, is the duly appointed, qualified and now acting Director of Safety and head of the Department of Safety of said city of Cincinnati; that the defendant, Clarence A. Dykstra, 3544 Biddle road, Cincinnati, Ohio, is the duly appointed, qualified and now acting City Manager of said city of Cincinnati; and that the defendant, Eugene T. Weatherly, 2541 Montana avenue, Cincinnati, Ohio, is the duly appointed, qualified and now acting Chief of the Police Department of said city of Cincinnati. Further, plaintiff says that said defendants are charged by law with the duty of enforcing the ordinance hereinafter mentioned.
"For his cause of action against these said defendants, plaintiff states that the city council of the city of Cincinnati, Ohio, passed and enacted the following city ordinance, known as ordinance No. 269 for the year 1936, which ordinance is now in effect. Said ordinance reads as follows:
"AN ORDINANCE No. 269-1936"To provide for the compulsory inspection of motor vehicles by ordaining supplementary Sections 74-28 a to 74-28 m, inclusive, of the Code of Ordinances.
"Be It Ordained by the Council of the city of Cincinnati, state of Ohio:
"Section 1. That the Code of Ordinances is hereby amended by ordaining supplementary Sections 74-28 a to 74-28 m, inclusive, to read as follows:
"Sec. 74-28 a. Testing Stations. The Department of Safety is hereby authorized and directed to establish, equip and operate within the city one or more testing stations at which shall be provided such mechanical devices and equipment as shall be sufficient to make such tests of motor vehicles as are hereinafter prescribed.
"Sec. 74-28 b. Inspections and Fees. It shall be unlawful for the owner or other person having possession or control of any motor vehicle, except road rollers, to operate the same upon the streets of the city unless said motor vehicle be inspected, at one of the testing stations herein provided for, at least once during each inspection period hereinafter prescribed.
"The fee for each such inspection shall be fifty cents (50¢). No fee shall be charged for inspecting vehicles owned by the United States Government, the state of Ohio or any political subdivision of Ohio.
"Additional inspection shall be made, without charge of any motor vehicle upon which an inspection fee for the current inspection period has been paid.
"There shall be two inspection periods in each calendar year, the first comprising the first six months and the second the last six months.
"Sec. 74-28 c. Certificate and Seal of Inspection. if, upon inspection, any motor vehicle is found to meet the standards of safety fixed by statute, ordinance or other lawful authority, the Department of Safety shall issue to the operator an official certificate of inspection and shall affix to the vehicle an official seal of inspection, which seal shall thereafter be displayed at the place affixed.
"In case such certificate or seal is lost, destroyed or rendered illegible, the Department of Safety shall issue a duplicate thereof without charge providing that the motor vehicle for which such certificate or seal was issued still meets the standards of safety herein required.
"If any motor vehicle shall fail to meet the standards of safety aforesaid, the Department of Safety shall issue to the person presenting the same a statement specifying the particulars in which said motor vehicle is found to be defective.
"It shall be unlawful for the owner or other person having possession or control of such vehicle to operate the same upon the streets of the city unless the defective particulars be corrected and said motor vehicle be reinspected at a testing station within seven (7) days from the date of issuance of such statement.
"Sec. 74-28 d. Inspection after a Collision. If any motor vehicle is damaged by reason of a collision or from any other cause, it shall be unlawful for the owner or other person having possession or control thereof to operate the same upon the streets of the city unless said vehicle is tested at an inspection station within twenty-four (24) hours after such vehicle has been returned to service.
"Sec. 74-28 e. Inspection by Order of Police Officer. Any police officer shall have the authority to order in for inspection any motor vehicle which does not have affixed thereto an inspection seal as herein provided for, or which does not meet the safety requirements herein prescribed, and shall notify the operator accordingly.
"It shall be unlawful for the owner or other person having possession or control of such motor vehicle to operate the same upon the streets of the city following the lapse of twenty-four (24) hours after such notification unless said vehicle has been inspected theretofore, in accordance with said notification, at a testing station.
"Sec. 74-28 f. Sale of Motor Vehicles. If a motor vehicle be sold and the possession thereof transferred it shall be unlawful for the purchaser or other person having posession or control of such vehicle to operate the same upon the streets of the city unless said vehicle be inspected at a testing station within five days after the date of transfer. This section shall not apply to used motor vehicles sold by individual owners to automobile dealers or agencies, unless such motor vehicles are operated or resold by such dealers or agencies, or to sales by dealers or agencies of newly manufactured motor vehicles which bear an unexpired inspection seal.
"Sec. 74-28 g. Detail of Inspection. Inspection shall be made of brakes, lights, signalling devices, windshields, windshield wipers, rear vision mirrors, tires, steering gear, drawbars, fifth wheels and towing devices, and all other parts upon which the safe operation of such vehicle may depend.
"The inspection requirements herein set forth are intended to provide safety in the operation of any motor vehicle approved in accordance with this section. No motor vehicle shall be approved by an official inspection station unless such motor vehicle meets the requirements hereinafter provided:
"(a) License Plates — Sec 74-41.
"(b) Horns — Sec. 74-32.
"(c) Rear Vision Mirror — Sec. 74-33.
"(d) Stop Light — Every motor vehicle shall be equipped with a stop light which is in good working order.
"(e) Lights — Sections 74-15, 74-16, 74-18 and 74-19.
"(f) Windshield and Windshield Wiper — Sec. 74-42.
"(g) Front End Assembly — The front end assembly shall be free from worn, broken, loose or missing parts.
"(h) Wheel Alignment and Steering Mechanism — The steering arms, tie rods, drag links, and other associated parts of the steering mechanism must be secure and free from excessive play or wear. The play in the steering wheel shall not be in excess of three (3) inches. The error in toe in or too out shall not be more than forty-four (44) feet of side slippage per mile or equivalent.
"(i) Tires — Every motor vehicle shall be equipped with tires as required by Section 74-29. Such tires shall be in a safe operating condition. It shall be prima facie evidence that a tire is unsafe if the outer tread is worn down to the breaker strip or if such tire is not free from bulges or breaks caused by broken fabrics.
"(j) Brakes — Sec. 74-30.
"(k) Turn Tables — Turn tables or fifth wheels shall be in good working condition and free from broken or worn parts that would affect the safe operation of the vehicle.
"(1) Towing Devices — Drawbars or other towing devices and the couplings thereof shall be free from excess wear or broken parts.
"All towed vehicles shall be attached to the tractor by safety chains which are capable of withstanding the full drag of the trailer and its load.
"The other devices or parts herein listed shall conform to the requirements of law and the rules and regulations of the Department of Safety.
"Sec. 74-28 h. Fee Fund. All fees collected shall be deposited with the city Treasurer to the credit of the 'Traffic Fund.' Said fund shall be used only for the purpose of defraying the expenses of carrying out the provisions of this ordinance.
"See. 74-28 i. Soliciting Business. It shall be unlawful for any person, firm or corporation to advertise for, or solicit motor vehicle repair work on or about the premises of any testing station.
"Sec. 74-28 j. Repairing Vehicles at Station. It shall be unlawful for any person, to use any testing station or the equipment thereof for the purpose of making repairs to motor vehicles.
"Sec. 74-28 k. Advertising by Employees. It shall be unlawful for any officer or employee of the city of Cincinnati engaged directly or indirectly in the making of inspections or tests as herein provided for to recommend or suggest the name of any person, firm or corporation engaged in the business of repairing motor vehicles.
"Sec. 74-28 m. Removing Inspection Seal. It shall be unlawful to remove, obliterate, deface or obscure an inspection seal as herein described; or to place such a seal upon a motor vehicle for which said seal was not issued; or to operate a motor vehicle bearing such a seal issued for a different vehicle; or to operate a motor vehicle bearing a facsimile or imitation of such a seal.
"The provisions of this section shall not apply to a vehicle bearing an unexpired inspection certificate or seal issued by any other public authority of competent jurisdiction.
"Section 2. This ordinance shall take effect and be in force from and after the earliest period allowed by law.
"Passed November 12, A.D. 1936.
"Russell Wilson, Mayor.
"Attest: L.B. Blakemore, Clerk.
"A copy of this ordinance is on file in the office of the Clerk of Council for public inspection.
"Plaintiff claims that the aforementioned ordinance is invalid, illegal, null and void, of no effect whatsoever, and unconstitutional by reason of the statutes and Constitution of Ohio. Plaintiff says that the expenditures contemplated and directed to be made pursuant to the provisions of said ordinance, and, in addition, the provisions therein contained for the disbursement of fees received from inspections, constitute a misapplication of public funds. Plaintiff also states that the said ordinance, and its enforcement, represent and constitute an abuse of corporate powers not possessed by said city of Cincinnati or by any of its officers.
"WHEREFORE, plaintiff prays the court to grant him a temporary injunction or restraining order upon the filing of this cause of action pending a final hearing of same or pending the further order of the court, in order to prevent, restrain and prohibit the said defendants from making or attempting to make any expenditures or disbursements above mentioned, or to prevent, restrain and prohibit said defendants from enforcing or attempting to enforce the provisions of the said ordinance. Plaintiff also prays the court that upon a full consideration of this cause of action, said injunction or restraining order be made final and perpetual. Plaintiff also asks for all other proper relief to which he may be entitled in law or equity, together with his costs herein incurred, including reasonable compensation to his attorneys."
To the plaintiff's petition the defendants filed a general demurrer. The Court of Common Pleas sustained the demurrer and rendered judgment for the defendants.
Upon appeal on questions of law and fact the Court of Appeals sustained the demurrer and dismissed the plaintiff's petition.
The case is in this court upon an appeal as of right and also by reason of the allowance of a motion to certify.
Mr. Alfred H. Myers and Mr. Cedric Vogel, for appellant.
Mr. John D. Ellis, city solicitor, and Mr. Francis T. Bartlett, for appellees.
At the threshold of this discussion it should be noted that this court is not permitted to concern itself with the wisdom of the questioned ordinance. The problem confronting this court is one solely of legislative power and not in any sense one of policy.
As a preliminary procedural question it is claimed by the defendants that the plaintiff as a taxpayer lacks the necessary capacity to maintain this action. Under the provisions of the ordinance the Department of Safety is authorized to establish, equip and operate one or more testing stations. Since no fees for inspection of vehicles will be received until a station is established the initial expenditure for its erection necessarily would come from the general funds of the city. If the ordinance is invalid the expenditure for such a station would be improper and constitute a misapplication. Consequently this court is of the opinion that as a taxpayer the plaintiff possesses the necessary capacity to maintain this action.
The plaintiff contends that the ordinance is unreasonable and discriminatory on the theory that it is the driver and not the condition of a particular vehicle that causes an accident. The answer to this is that accidents may be caused by either or both of these elements. A competent driver with a mechanically defective vehicle may constitute as much of a traffic hazard as a careless driver with a vehicle that is in excellent mechanical condition. This court experiences no difficulty in concluding that the mechanical condition of a motor vehicle is an important factor in the safety of its operation upon the highway. In this respect the ordinance is neither unreasonable nor discriminatory.
A further complaint of the plaintiff is that the ordinance operates as a restriction upon both intrastate and interstate commerce, since it affects everyone who operates a motor vehicle upon the streets of Cincinnati. In other words it is contended that the ordinance cannot be considered proper local legislation since it operates extra-territorially upon nonresidents as well as upon residents. However, it must be remembered that the ordinance affects only those who operate motor vehicles within the limits of the city of Cincinnati. Furthermore, it is not suggested that there is any discrimination against a nonresident. On the contrary the operation of a motor vehicle by either a resident or nonresident is not made unlawful until after a defect has been discovered and the operator has failed to correct it within a period of twenty-four hours. Then too, the ordinance provides that "this section shall not apply to a vehicle bearing an unexpired inspection certificate or seal issued by any other public authority of competent jurisdiction." Thus it is apparent that there is no unreasonable interference with interstate or intrastate commerce, and that under its charter the city simply has exercised the "powers of local self-government" conferred by Section 3 of Article XVIII of the Constitution of Ohio wherein municipalities are authorized "to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
The plaintiff's next contention is that the ordinance conflicts with the state statutes licensing the operation of motor vehicles. It is his theory that "upon proper registration, a franchise is issued by the state to the owner of a motor vehicle licensing his car to be driven over all roads in Ohio" including those within municipalities. The difficulty with this position is the fact that the state and the city of Cincinnati have here legislated upon different subjects; hence there is no conflict. The fifty cents exacted by the ordinance is plainly a mere inspection fee and not a tax, inasmuch as its manifest purpose is simply to meet the expense of issuance; but on the other hand, as has been held frequently by this court, the registration fee exacted by the state statute is an excise. Saviers v. Smith, Secy. of State, 101 Ohio St. 132, 128 N.E. 269; Fisher Brothers Co. v. Brown, Secy. of State, 111 Ohio St. 602, 146 N.E. 100; Foltz Grocery Baking Co. v. Brown, Secy. of State, 111 Ohio St. 646, 146 N.E. 97; Calerdine v. Freiberg, 129 Ohio St. 453, 195 N.E. 854. The state has not legislated on the subject of inspection, nor has the city here levied a tax. The city has exercised its police power, while the state has employed its power of taxation. Had the state preempted the inspection field a different question would be presented. It is of course true that the state issues a license upon payment of the registration fee, but it is equally true and equally obvious that the purpose of the statute is to levy a tax, and that the issuance of the license by the state is but an incidental detail or means for facilitating the collection of the tax. That the issuance of such a license is not intended to confer an unconditional privilege to operate a motor vehicle upon any highway at any time as the owner may fancy is shown by the language of Section 3632, General Code, which provides that municipalities may "license and regulate the use of the streets by persons who use vehicles," and also by the language of Section 3714, General Code, which provides that municipalities "shall have special power to regulate the use of the streets, to be exercised in the manner provided by law." This is shown also by the fact that although a person may own a motor vehicle and possess the license issued when he paid his registration fee, he nevertheless is not permitted to operate his car until he has taken the further step of obtaining a driver's license as required by the provisions of Section 6296-2 et seq., General Code. The plaintiff cites and relies upon the cases of Pegg v. City of Columbus, 80 Ohio St. 367, 89 N.E. 14, 23 L.R.A. (N.S.), 453, and Frisbee v. City of Columbus, 80 Ohio St. 686, 89 N.E. 92. However these cannot be considered as in any wise decisive of the instant controversy, inasmuch as they involved a noncharter city and they were decided in the year 1909 before the adoption of Article XVIII of the Constitution of Ohio. Furthermore the ordinance there involved was substantially different from the present one. The city of Columbus attempted to prohibit the use of its streets by a driver without a license. As already observed, under the present ordinance the operation of a motor vehicle becomes unlawful only after inspection, discovery of defects, and failure to repair.
The plaintiff further complains that the ordinance is invalid because it provides that the fees realized shall be used for the purpose of meeting the expense of the inspection instead of being paid into the general fund. The answer to this is that, as already observed, the fifty cents is an inspection fee and not a tax.
Likewise the plaintiff contends that the Legislature has conferred upon the Public Utilities Commission special authority over public conveyances, and that this constitutes an implied limitation upon the power of municipalities to regulate the use of their streets by motor vehicles generally. However, a study of these statutes discloses no basis for such an inference.
Consistent with the foregoing views sustaining the validity of the questioned ordinance, this court is of the opinion that the lower courts were correct in sustaining the demurrer to the plaintiff's petition. Therefore the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.
This matter is of the greatest importance to all municipalities and the state of Ohio. Since a syllabus setting forth a succinct legal statement has not been presented, I feel it is my duty to briefly set forth my reasons for concurrence.
I agree with the underlying principle that the city of Cincinnati has adopted an inspection ordinance providing for a fee commensurate with the cost of inspection, and that since the state of Ohio has not preempted this field, this ordinance is valid.
Section 6291, General Code, imposes not only a tax, but a license which is more than "an incidental detail or means of facilitating the collection of the tax." The history of this legislation will show that originally a bare license fee was charged, and that subsequently an excise tax, in addition, was imposed for the purpose of maintaining and repairing the roads and highways. See Saviers v. Smith, Secy. of State, supra, at page 142. The fees collected by the state are therefore properly designated by the Legislature as annual license taxes.
This license to operate over the highways is not an unconditional and unqualified one. An automobile may be operated only by one having a driver's license obtained under Section 6296-4, General Code. The Legislature has likewise provided that the law is violated if an automobile is mechanically defective in certain respects. See Sections 12614 and 12614-3, General Code.
In order to be assured that the laws pertaining to mechanical equipment are observed, the Legislature is not limited in the exercise of its police power to the punishment of infractions of the law, but has the right to require periodical inspections of vehicles. This power of inspection coupled with the charging of a fee for the service has long been an attribute of the police power. See Cincinnati Gaslight Coke Co. v. State, 18 Ohio St. 237; Castle v. Mason, 91 Ohio. St., 296, 110 N.E. 463, Ann. Cas. 1917A, 164.
The state, for example, has a right not only to license a barber but may enforce its sanitary rules as to his shop by periodical inspection. So in this case the state may license a motor vehicle and at the same time require the vehicle to be in mechanical condition to operate. This can be done only by an inspection law.
Since the state has not legislated on the subject, a municipality has the right to adopt an inspection ordinance under its power to regulate the use of the streets. See Prudential Co-Operative Realty Co. v. City of Youngstown, 118 Ohio St. 204, 160 N.E. 695; City of Dayton v. Jacobs, 120 Ohio St. 225, 165 N.E. 844.
This power of a municipality to regulate the use of vehicles upon the streets is granted not only by Article XVIII, Section 3, of the Ohio Constitution, but it has been expressly conferred by statutory enactment since an amendment in 1902. Section 3632, General Code (96 Ohio Laws, 23). See Firestone v. City of Cambridge, 113 Ohio St. 57, 62, 63, 148 N.E. 470.
The state having the right, in the exercise of its police power, may legislate against defective automobiles on the highway as well as defective drivers. To do so it may require, as a condition to the effective use of a license, that there be periodical inspections. The state not having legislated, and the municipality having acted, such action is not in conflict with any statutory or constitutional provision.
While the appellant claims the ordinance may be a burden upon interstate commerce, as a taxpayer he cannot raise such question. All he can present is whether a municipality may expend public funds for inspection stations, and it is here so determined. Whether the ordinance operates on a few more or few less people is not a pertinent inquiry. However, since a bare fee for a service is charged, it can well be doubted that such could be a burden on interstate commerce. See South Carolina State Highway Department v. Barnwell Bros., 301 U.S. 82 L.Ed. 569, 58 S.Ct. 510.
It is sufficient for the purpose of this action to hold that the inspection ordinance is not invalid so far as residents of the city of Cincinnati are concerned, and that funds may be expended to erect testing stations so long as the state does not legislate on the same matter.