City of St. Louis v. Williams

*514 DISSENTING OPINION.

VALLIANT, J.

— Appellant was convicted in a police court in the city of St. Louis of violating a city ordinance; he appealed to the St. Louis Court of Criminal Correction, where he was again convicted and fined ten dollars; from that judgment he has appealed to this court.

The ordinance under which he was convicted is contained in certain sections of the Revised Ordinances of the city approved March 19, 1907, relating to automobiles. Under section 1811, a license tax of ten dollars is imposed on each automobile used in the city. Section 1553 provides: “That hereafter all automobiles operated in the city of St. Louis shall display identification numbers as herein provided. Such numbers shall be not less than five inches high, and the fine marking the numbers shall be white and be five-eighths of an inch wide at every point and such numbers shall be placed at least three-fourths of an inch apart.” Section 1554 requires the numbers to be painted on black or blue signs or plaques of wood, metal or leather, or directly on the machine, provided the machine be painted black at that particular place;' the number to correspond with that on the license tag issued by the city official to the owner. Section 1555 requires the' number to be displayed on the rear of the machine as near as possible in the middle thereof, low enough not to be hidden by any obstruction on the machine. Section 1557 prescribes a penalty for violation of the ordinance.

Appellant’s contention is that the city ordinance requiring the number to be displayed, as therein specified, is invalid because he says it is in conflict with the state statute on the same subject. That is the only point appellant contends for in this case; in their brief the learned counsel for appellant say: “While there are many manifest errors in the record, there is but one *515 point we wish to submit. On this point both parties desire the ruling of this court.”

I. It is not questioned that a city ordinance to be valid must be in harmony with and subject to a general law of the State on the same subject. It is also not disputed that the city has authority under its charter to provide by ordinance for the levying of a license tax on automobiles, and it follows as an incident to that right to levy the tax that it make reasonable and necessary provisions for its collection and that incidental power is rendered all the more necessary when besides the-, collection of the tax there is a police duty to be performed in protecting the lives of people traveling the streets.

If the city is deprived of the power to require that an automobile, as it is driven along the street at a, high rate of speed, display a sign that it may be identified as one on which the license fee has been paid, the right to levy the tax might as well be taken away from the city; men could with impunity defy the law. In the city of St. Louis where there are several thousand automobiles in daily use, how can an officer detect one as running without a license as it. dashes by him on the street, if there is no sign orplaqüe displayed? And, aside from the revenue-feature of the matter, to deprive the city of the power to require some identification of the machine as one owned in the city, as distinguished from one-owned by a non-resident and merely passing through the city, would impair the police power of the-city. It is true after an automobile has been belaid, and its state sign has been read and its registration, number, ascertained, the city officer may communicate with the Secretary of State at Jefferson City and after a while the’ owner of the machine be identified. But that method would be almost as useless as none at all. The Legislature itself recognized the necessity of having *516 some conspicuous sign displayed to show that the owner had complied with the state law; is it reasonable then to presume that the Legislature intended to deprive the city of t]ie right to require like evidence? The learned counsel for appellant in their brief say: “In order to make effective the regulations prescribed it was necessary to make some provision that every automobile wherever and whenever it was being operated in the State should be capable of being clearly and ■definitely identified.” If such evidence of identification is necessary to render the state statute effective, it is ■equally so for the city ordinance. Suppose the. state law had required no sign to be displayed showing that the machine was registered under the state law, what right would any officer have to. halt one on a public highway and demand a show of its license? Without the sign the statute would be of no avail and so it is of the city ordinance. Assuming therefore that the General Assembly had the power to deprive the city of its right to levy the license tax, it did not do so in express terms, and therefore we should not assume that it did so by implication, or that by inadvertence it enacted a statute that so impaired the right as to practically destroy it. We should not so construe this proviso if it is susceptible of any other reasonable interpretation.

- The statute invoked by appellant as rendering the ordinance void is section 8505, Revised Statutes 1909; it originated in an act of the General Assembly approved March 19th, 1907. [Laws 1907, pp. 73-4.] In the first section of that act, now section 8503, Revised Statutes 1909, the terms thereinafter used' are defined. Section two, now section 8503, Revised Statutes 1909, requires every person owning an automobile to file in the office of the Secretary of State a statement giving his name and address, a description of his motor vehicle to be registered, the name of the maker, etc., on a blank prepared and furnished him by the Secretary of State. On the filing of that statement the Secretary of *517 State is to register the machine and assign it a number, and on payment to him of the fee, $5, he is to issue the owner a certificate of the registration and a seal stamped with the registration number and words to show that the machine is registered under the state law. The certificate of registration is to contain the same words and number, the name of the owner, description of the machine, and page of the book in which the machine is registered.

The third section, now section $8504, Revised Statutes 1909, provides that if the owner of the registered vehicle should sell it, the registration is to expire and the certificate' be returned to the Secretary of State with notice of the sale and the name and residence of the purchaser.

Then comes section four, now section 8505, Revised Statutes 1909, which requires the owner of the motor vehicle to have the number of his registration seal conspicuously displayed on the back of the vehicle and in an illuminated device in front so that it can be seen at night; the size of the letters and figures are prescribed and then the section concludes with these words: “and provided that said owner shall not be required to place any other mark of identity upon his motor vehicle.” Those are the words which appellant contends forbid the city to require a sign or plaque displaying the number of the city license to be placed on the vehicle. What is the meaning of the word “identity” as used in that connection? The word identity has for its root the Latin word idem, meaning the same, it is defined by Webster as, “The condition of being the same with something described or asserted.” A stranger presents a check at a bank and is told that he must be identified; identified as what or as whom? As the man named in the check. To say that a thing is the same, without naming the thing with which it is intended to identify it, is to leave the sentence unfinished and make no sense. Webster says identify *518 means “to prove to be the same with something described, claimed or asserted.” The only thing “described” or “asserted” in this statute to which the word “identity” could refer is the vehicle that is described in the foregoing part of the statute, that is, the vehicle described in the certificate of registration issued by the Secretary of State, which description contained the name of the owner, his residence, the mame of the maker, his place of business, the kind and class of the machine, etc. The number that the statute required to be conspicuously displayed was to signify that the machine bearing that sign was the same’ machine as that described in the certificate of registration and the proviso means that no further proof of that fact should be required. The ordinance which requires the number of the city license to be displayed on the machine does not identify it as the machine described in the certificate of registration issued by the Secretary of State, and is not so designed, but it is to identify it as the machine for which the city license, of that number, issued. If the plate containing the state registration number should get knocked off or lost, the plate containing the city license would not in any degree identify the machine as that one for which the Secretary of State issued the certificate. It is therefore not forbidden by the statute.

II. 'The words relied on by appellant are inserted as a proviso to the statute. A proviso has reference only to what is contained in the body of the enactment; it is either an exception or a condition or a limitation on what has preceded.

“Its office,' generally, is, either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extended to cases not intended' by the Legislature to be brought within its purview.” [32 Cyc. .743, n. 56.] “Whether the term implies a condition or not, must of course depend on the context; sometimes it is a mere condition, sometimes it is an *519 exception.” [32 Cyc. 744.] “From a consideration of the office and function of a proviso it would seem to follow that it can have no existence, separate and apart from the provision which it is designed to limit. ‘If it was not intended to restrain the general clause, it was a nullity.’ ” [Endlich on Interpretation of Statutes, sec. 186.]

Giving to • the words contained in this proviso their legitimate interpretation they mean that no other evidence, to identify the machine as the one registered under that statute by the Secretary of State, shall be required.

III. I' do not understand appellant as disputing the proposition that the city has authority under its charter to levy the license tax in question and, as an incident to that right, would have the right to require the owner or operator of the machine to display the sign or plaque containing the license number as required by the ordinance as a means of identifying it with the machine for which the license was granted, if that requirement is not forbidden by the statute in question; but the contention is that that charter right, to that extent, is repealed or superseded by the proviso to the statute.

Eeferring again to the nature of a proviso, I do not see how it can be construed into an enactment repealing or superseding another law to which it makes no reference.

But going back to the original act of March 19, 1907, there is nothing in the title to the act to indicate that the Legislature intended to repeal any law that conferred expressly or by implication on the city any right it then possessed. The title to the act is: “An Act to repeal an act entitled ‘An act regulating the operation and speed of automobiles on the public streets, roads and highways of this State; fixing the an ount of license and prescribing a penalty for violating the same,’ approved March 23, 1903, and to sub *520 stitute in lieu thereof an act to provide for the (regulation) [registration] of motor vehicles and auto-drivers; to provide regulations for the operation, use and speed of motor vehicles on the public highways; and prescribing penalties and civil liabilities for the violation thereof.”

If the city had the authority to levy the license tax, it had, as incident to the exercise of that authority, the right to require the licensee to display a token or sign as an evidence that he had paid his license. Evidence of that character is required by the Federal government, the State government and the city governments when the license is of such a character as to render its display necessary; it is a reasonable requirement, for without it the law could not be adequately enforced. The General Assembly in enacting this very statute recognized the necessity of such evidence and required it. Can we then say that the same General Assembly intended to take away from the city the right to require this evidence of compliance with its law, when to do so would be equivalent, or nearly so, to taking away the right to impose the tax, and that too when there was no indication in the title of any such purpose? If it had so intended it would have spoken more plainly to that purpose, it would not have veiled its intent in the form of a proviso, which is naturally susceptible of an interpretation that refers to another subject.

The General Assembly of 1911 passed an act repealing the Act of 1907, which is Chapter 83, Revised Statutes 1909, and enacted a new chapter in lieu thereof (Laws 1911, p. 322), by the fifth section of which it is provided that no person should operate a motor vehicle while on a public highway without displaying its registration number in a form therein prescribed on the rear of such vehicle “and no motor vehicle shall display any other number or plate on the rear thereof except as hereinafter provided.” A construction of that statute, of course, is not called for in this case, and we refer to it *521 only to show that the proviso in the Act of 1907, which we have above discussed, will stand repealed when the Act of 1911 goes into effect, and to point to the fact that under this last act it would seem that the city was not forbidden to require a display of its license number, but that the number shall not be placed on the rear of the machine.

In my opinion the city ordinance under which the appellant was convicted is not in conflict with the section of the Act of 1907 referred to, which is section 8505, Revised Statutes 1909. The judgment should be affirmed.