[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 196 By section 17 of the charter of the city of Buffalo (Chapter 105, Laws of 1891) it is provided: "Sec. 17. The common council shall from time to time enact ordinances * * * (6) To license and regulate cartmen, porters, owners and drivers of all vehicles used for the transportation of passengers or property for hire, and to fix the rates of compensation to be taken by them; to license and regulate plumbers; * * * to prescribe the terms and conditions on which licenses shall be granted. * * *."
By chapter 31, Laws of 1904, which became a law March 1, 1904, there was added to said subdivision of said section the following: "To impose and levy a tax upon the owner or owners of hackney carriages, sleighs, cabs, coupes, private *Page 197 carriages, barouches, buggies, wagons, omnibuses, carts, drays, baggage wagons, automobiles, motor vehicles, bicycles, tricycles, and similar vehicles, or any other vehicle, for the privilege of operating, driving or propelling the same along or upon the public streets, avenues, highways, and other public places in the City of Buffalo; to fix the amount of such tax and to prohibit the use of the public streets, highways, avenues or other public places of the city by the owner or owners, or driver or drivers, of any such vehicle in the event of any tax so imposed not being paid, and to fix and provide such penalty or penalties as it shall deem proper for a violation of any such ordinances."
The Motor Vehicle Law (Chapter 538, Laws of 1904) became a law May 3, 1904, and it provides: "Section 1. * * * Except as otherwise herein provided, it shall be controlling, * * * (2) On their (motor vehicles) use of the public highways. * * *."
"§ 4. * * *. Subdivision 3. Local ordinances prohibited. — Subject to the provisions of this act, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring of any owner or operator of a motor vehicle any license or permit to use the public highways, or excluding or prohibiting any motor vehicle whose owner has complied with section two of this act from the free use of such highways, except such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages, or except as herein provided, in any way affecting the registration or numbering of motor vehicles or prescribing a slower rate of speed than herein specified at which such vehicles may be operated, or the use of the public highways, contrary to or inconsistent with the provisions of this act; and all such ordinances, rules or regulations now in force are hereby declared to be of no validity or effect; * * *."
"§ 7. All acts and parts of acts inconsistent herewith or contrary hereto are, so far as they are inconsistent or contrary, hereby repealed." *Page 198
On March 18, 1907, an ordinance was duly enacted by the common council of the city of Buffalo as follows: "Sec. 27. The owner and owners of every automobile or other motor vehicle and of any vehicle propelled by any power other than muscular power, excepting such motor vehicles as run only upon rails or tracks, and (excepting motor cycles, motor bicycles, traction engines, road rollers, bicycles or tricycles) operated or propelled within the city of Buffalo shall be required to pay into the city treasury an annual tax of $5 for each such automobile, motor vehicle or vehicles so propelled by other than muscular power. The tax hereby imposed shall become due on the first day of May of each year and shall be paid on or before said day to the city treasurer, who shall receive and receipt for the same and who shall place all sums so received to the credit of a fund for the repair of the paved streets, avenues, alleys, highways and other public places of the city. * * *
"Every person liable to the payment of any tax imposed in pursuance of this section, who shall refuse or neglect to pay such tax within one month after the same shall become due and payable shall be liable to a penalty of $10 for each such tax so remaining unpaid in addition to the amount of such tax.
"This section shall not apply to vehicles owned by non-resident of the city."
The defendant is a resident of the city of Buffalo and at the times mentioned in the complaint was, and now is, the owner of an automobile. He duly complied with the Motor Vehicle Law and prior to and after May 1, 1907, had operated and propelled said automobile within the city of Buffalo. He neglected and refused to pay the alleged tax imposed by said ordinance, and after more than one month had elapsed after said alleged tax became due and payable as provided by said ordinance this action was commenced to recover the penalty of $15 as also in said ordinance provided.
The defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of *Page 199 action. The demurrer was sustained. On an appeal to the Appellate Division of the Supreme Court the interlocutory judgment was affirmed. An appeal to this court was allowed and the following questions certified to us:
"1. Did the Common Council of Buffalo subsequent to the enactment of Chapter 31, Laws of 1904, and of the Motor Vehicle Law, Chapter 538, Laws of 1904, have authority to pass the ordinance set forth in the complaint in this action?
"2. Does the complaint in this action state facts sufficient to constitute a cause of action?"
Automobiles have but recently come into common use. Within the last few years their use has not only greatly increased, but tours therewith have been extended through many municipalities. Good judgment has not always been exercised in their use, and the rights of others have sometimes been overlooked by their owners or drivers, and, principally in consequence thereof, more or less opposition has arisen to their unrestricted use upon the public streets and highways. The opposition to such use has frequently found expression in local restrictive rules and ordinances. Such local rules and ordinances existing prior to the enactment of the Motor Vehicle Law were not only dissimilar and conflicting, but sometimes difficult to understand. The necessity for a uniform law throughout the state was apparent, and the Motor Vehicle Law was clearly designed as a new, complete and general enactment to take the place of all previous statutes, ordinances or rules relating to the use of motor vehicles upon the streets and highways of this state. The purpose of the legislature in enacting such law is shown in the clear and unmistakable language used by it. In the first section of the act it asserts that, except as therein otherwise provided, it shall be controlling in the use of the public highways. With the exceptions stated in the act, it provides that local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring of any owner or operator of a motor vehicle any license or permit to use the public highways, or excluding or prohibiting any motor vehicle *Page 200 from the free use of such highways, or in any way affecting the use of the public highways contrary to or inconsistent with the provisions of the act. It further expressly enacts that all ordinances, rules or regulations then in force are of no validity or effect, and that all acts and parts of acts inconsistent with the Motor Vehicle Law or contrary thereto so far as they are inconsistent or contrary are repealed.
It is well settled that where a later act covers the whole subject of earlier acts and embraces new provisions and which act plainly shows that it was intended not only as a substitute for the earlier acts but to cover the whole subject then considered by the legislature and to prescribe the only rules in respect thereto, it will operate as a repeal of all former statutes relating to such subject-matter even if such former acts are not in all respects repugnant to the new act. (Pratt Institute v.City of New York, 183 N.Y. 151, and cases therein cited; Black on Interpretation of Laws, 116; Matter of Troy Press Co.,94 App. Div. 514; affd., 179 N.Y. 529; Matter of B., Q.C. S.R.R.Co., 185 N.Y. 171.)
In this case the intention of the legislature to repeal all laws inconsistent with and contrary to it and to make the act complete and exclusive is further shown in reserving to municipalities the right upon certain conditions to limit by ordinance, rule or regulation the speed of motor vehicles on the public highways and to make, enforce and maintain further ordinances, rules or regulations affecting motor vehicles which are offered to the public for hire. (See People ex rel. Hainer v. Keeper of Prison, 190 N.Y. 315.)
Prior to the enactment of the Motor Vehicle Law some of the provisions now included therein were included in sections 163 and 169a of the Highway Law. On the same day that the Motor Vehicle Law was enacted said section 169a of the Highway Law was repealed and said section 163 of the Highway Law was amended by striking therefrom all reference to motor vehicles. It is claimed by the appellant that by virtue of section 32 of the Statutory Construction Law such provisions of the Motor Vehicle Law as are substantial *Page 201 re-enactments of the Highway Law as it existed prior to May 3, 1904, should be considered as amendments of such Highway Law and that the Motor Vehicle Law should so far as it is a re-enactment of the provisions previously in the Highway Law be deemed a statute of a prior date to the charter of the city of Buffalo.
The sections of the Highway Law were not in terms repealed or amended by the Motor Vehicle Law. Such repeal and amendment was by a separate act. The intention of the legislature is controlling. It is clear, as we have stated, that it was the intention of the legislature to enact a new, independent and general statute relating to motor vehicles, and it should be so construed in all its parts as a statute taking effect on May 3, 1904, the date of its enactment. It prohibits the common council of the city of Buffalo from passing an ordinance affecting the public highways of the city contrary to or inconsistent with the provisions of such Motor Vehicle Law.
The appellant contends that the ordinance in question does not require a license or permit to use the public streets of the city of Buffalo, but that it imposes a tax to raise revenue for the expenses of the municipality. The amendment of 1904 to the charter of the city which we have quoted was made a part of that subdivision of the section which authorizes the common council of the city to enact ordinances to license and regulate cartmen, porters, owners and drivers of all vehicles used for the transportation of passengers or property for hire. It in terms authorizes the imposition of a tax upon the owner or owners of certain vehicles, including motor vehicles. The tax is not imposed upon the owners as individuals, nor upon motor vehicles as property, and no provision whatever is contained in the charter providing for the collection of the tax as such. The so-called tax is imposed "For the privilege of operating, driving or propelling the same (vehicles) along or upon the public streets, avenues, highways and other public places in the city of Buffalo." Its purpose is further shown in that part of the act which grants authority "To prohibit the use of the *Page 202 public streets, highways, avenues or other public places of the city by the owner or owners or driver or drivers of any such vehicle in the event of any tax so imposed not being paid." The act does not in any way show that it is intended for the purpose of providing revenue for the maintenance of the municipality. The distinction between a license or license tax as a police regulation, and a tax for raising revenue is in the fact that one is intended for regulation and the other for revenue.
If the ordinance had been intended for the purpose of raising revenue for the maintenance of the public highways of the city it is not reasonable to suppose that it would have been confined to motor vehicles. It would have materially increased the revenues for such purpose if it had included therein all of the vehicles mentioned in said charter amendment.
When the occupation or use of a public street involves danger in some degree to the public a license may operate as a partial restraint upon such use of the public streets. The purpose of the ordinance in question to restrain the use of motor vehicles in the public streets of Buffalo is so obvious that very little weight can be given to the fact that it is called a tax instead of a license.
The direction in the ordinance to place all sums received therefrom to the credit of a fund for the repair of the paved and other streets of the city is no more significant of its purpose than is the entire failure of the ordinance to make any provision to pay for advertising and the other expenses to be incurred by direction of the ordinance. We think that the ordinance is a plain attempt to avoid the provisions of the Motor Vehicle Law and that it should not be upheld.
The order appealed from should be affirmed, with costs, and the questions certified answered in the negative.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, WERNER and WILLARD BARTLETT, JJ., concur.
Order affirmed. *Page 203