Opinion
4 Div. 979.
March 12, 1959.
Appeal from the Circuit Court, Russell County, J. B. Hicks, J.
Roy L. Smith, Phenix City, for appellant.
Municipalities have the right to regulate the flow of traffic and to make necessary charges for the expense incurred in so doing. They have the right to regulate the registration of automobiles for police purposes within the city limits. The ordinance is valid. City of Decatur v. Robinson, 251 Ala. 99, 36 So.2d 673; State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283; Pickett v. Matthews, 238 Ala. 542, 192 So. 261; City of Andalusia v. Fletcher, 240 Ala. 110, 198 So. 64; State v. McFall, 112 Or. 183, 229 P. 79; Hickey v. Riley, 177 Or. 321, 162 P.2d 371; Frost v. Railroad Comm., 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101, 47 A.L.R. 457.
J. Pelham Ferrell, Phenix City, for appellee.
A municipal corporation is prohibited from promulgating ordinances which conflict with or are inconsistent with general laws or policies of the State. City of Birmingham v. Allen, 251 Ala. 198, 36 So.2d 297; Ward v. Markstein, 196 Ala. 209, 72 So. 41; Constitution 1901, Sec. 89. Municipal corporations are expressly prohibited by general laws of the State from imposing a registration fee or license tax upon automobiles not used for hire or transportation of passengers for pay. Code 1940, Tit. 51, § 711; Tit. 36, § 32; City of Birmingham v. Bergreen, 18 Ala. App. 636, 94 So. 195.
The ordinance involved is as follows: "An Ordinance
"To regulate the registration and license of passenger motor vehicles not used for hire within the corporate limits of the City of Phenix City, Alabama.
"Be it ordained by the Board of Commissioners of the City of Phenix City, Alabama, as follows:
"Section 1. Definitions: The following words and terms when used in this Ordinance shall have the meaning respectively described to them by this section unless the context clearly indicates otherwise.
"A. 'Person' shall be taken to mean and include the natural person, firm, association, partnership, trustee, corporation, executor, administrator, or other legal entity, whether singular or plural, masculine or feminine, as the context may require.
"B. 'Owner' shall include the person having in his possession for his use said motor vehicle not used for hire, whether he be the actual owner or not, it being the purpose and intention of this ordinance to require registration of all passenger automobiles.
"C. 'User' shall be taken to mean the person who has the custody, control and use of a passenger automobile stored or used upon the public streets of the City of Phenix City, Alabama.
"Section 2. That the owner or the person using each passenger motor vehicle, not used for hire or the transportation of passengers for pay, be and he is hereby required to register with the City of Phenix City, Alabama, said motor vehicle once each year, beginning with January 1st, and he shall make application to the City Clerk at his office at the City Hall in Phenix City, Alabama, for the purpose of registration, and shall present his bill of sale or State registration certificate giving the motor number, kind and model of said automobile and the place or residence of the owner, which said information shall be entered upon a permanent record and kept in the Office of the Chief of Police of the City of Phenix City, Alabama.
"Section 3. That each person registering a passenger automobile not used for hire in the City of Phenix City, Alabama, shall receive a metal tag showing the registration of said automobile with the City of Phenix City, Alabama, for the year 1955, and the appropriate year thereafter, said metal tag to be supplied by said city and affixed to the automobile so that the same may be seen and observed on the outside of said automobile, whether on the front or rear of said car where the usual State tag is affixed.
"Section 4. That the cost of license and registration of said automobile shall be the sum of $5.00, for which a receipt shall be given by the City of Phenix City, showing date of registration, the name of the owner, kind and model of automobile and motor number thereof, and the place of residence or place of business of the owner as the case may be.
"Section 5. Nothing herein contained shall require automobile dealers in passenger automobiles to register said automobiles in their stock prior to the conveyance or sale thereof.
"Section 6. In the event an automobile is purchased or brought within the corporate limits of the City of Phenix City, Alabama, for the use upon the public streets of said city and to be kept or stored in Phenix City after July 1st each year, then the registration fee therefor shall be one half of the annual fee herein required.
"Section 7. Each person, or owner, or user, upon the acquiring the same for use upon the public streets of Phenix City, Alabama, register the same as herein provided
"Section 8. On and after the 1st day of February of each year any person who operates an automobile upon the streets of Phenix City, Alabama, without having duly registered the same as herein provided, shall be guilty of a misdemeanor and may be fined not less than $1.00 (one dollar) nor more than $50.00 (Fifty Dollars), and in addition thereto may be sentenced to hard labor for the city for not more than 60 (Sixty) days, one or both, at the discretion of the officer trying the case.
"Section 9. All Ordinances or parts of Ordinances in conflict herewith be and they are hereby expressly repealed.
"Section 10. Should any clause or section of this Ordinance be determined not constitutional or invalid for any reason, it shall not effect the remaining portions thereof.
"Passed, adopted, and approved, this the 28th day of December, 1954."
Appellee was convicted of violating an ordinance of the City of Phenix City and was fined $5 and costs. He appealed to the circuit court where a demurrer was filed to the city's complaint. Appellee filed his answer without waiving the ruling on the demurrer. The trial court sustained the demurrer and acquitted and discharged the defendant on the ground that the ordinance was void. The city appeals.
The ordinance required a registration of private automobiles which use the streets of Phenix City and fixed the registration fee at $5. The reporter will include the ordinance in the report of the case.
It is obvious and apparent that the ordinance adds an additional registration fee to that required by state law. Tit. 51, § 711, reads:
"The registration fee or license tax herein required to be paid on motor vehicles shall be in lieu of all other privilege or license taxes which the state, or any county or municipality thereof might impose, where the motor vehicle is used by the owner. Provided further, that only one of such license tax can be levied and collected on one and the same motor vehicle for one and the same period of time; provided further, that incorporated cities and towns are hereby authorized to collect a reasonable license or privilege tax on motor vehicles used for carrying passengers or freight for hire."
There has been no legislative authority granted to appellant to add a registration fee as was the case with reference to the extra $5 fee charged by Lauderdale County. See Opinion of the Justices, 266 Ala. 363, 96 So.2d 634.
Municipal corporations may exercise only such powers as are expressly granted to them by the Legislature or necessarily implied in or incident to the powers expressly conferred, and those indispensably necessary to the accomplishment of the objects of the municipality. Personnel Board of Mobile County v. City of Mobile, 264 Ala. 56, 84 So.2d 365; Colvin v. Ward, 189 Ala. 198, 66 So. 98.
A municipal ordinance inconsistent with the general policy of the state, as declared in its general legislation, is void unless expressly authorized by the Legislature. Ward v. Markstein, 196 Ala. 209, 72 So. 41; Williamson v. City of Anniston, 215 Ala. 532, 112 So. 109; City of Tuscaloosa v. Hanly, 227 Ala. 513, 150 So. 499; City of Birmingham v. Allen, 251 Ala. 198, 36 So.2d 297.
The case of City of Birmingham v. Bergreen, 18 Ala. App. 636, 94 So. 195, is in point. There, an ordinance imposing a $1 registration fee on automobiles was held invalid because it was in conflict with the statute. We denied certiorari, Ex parte City of Birmingham, 208 Ala. 697, 94 So. 921.
It follows that the ordinance is invalid because it conflicts with the general law of the state, and the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.