Decided January 10, 1911.
On the Merits.
[112 Pac. 1076.]
Keversed. For appellant there was a brief over the names of Messrs. O’Day & Haddock with an oral argument by Mr. J. M. Haddock. For the respondents there was a brief with oral arguments by Mr. Frank S. Grant, city attorney, and Mr. William C. Benbow.Opinion by
Mr. Chief Justice Eakin.4. The evident scope of this ordinance is to levy a revenue tax upon all vehicles owned within the city and used in connection with business enterprises. It is first objected by defendant that equity has no jurisdiction of the case for the reason that plaintiffs have a complete remedy at law. The primary object of the suit is to have adjudicated the validity of the ordinance which involves private rights to prevent the collection of the tax which is alleged to be unauthorized and to prevent a multiplicity of suits, which constitutes a ground for equitable cognizance. A suit to enjoin the collection of a tax is recognized as a proper remedy when the tax is unauthorized: Welch v. Clatsop County, 24 Or. 452, 456 (38 Pac. 934) ; Taylor *581Sands Fishing Co. v. State Land Board, 56 Or. 157 (108 Pac. 126) ; Chicago Ry. Co. v. Frary, 22 Ill. 34; Albany & Boston Min. Co. v. Auditor General, 37 Mich. 391.
5. It is urged by plaintiffs that the provision of the ordinance that “any person who shall violate the provisions of this ordinance by neglecting or refusing to place license plates, or tags, upon each side of ‘his said vehicle’ * * or who violates any of the other provisions of this ordinance shall upon conviction thereof * * be punished by fine * * or by imprisonment,” renders the ordinance void, as it makes the nonpayment of a revenue tax punishable by fine and imprisonment. But this contention is untenable. The right of the city to license vehicles is conceded, and the charter expressly authorizes the city to enact ordinances and to enforce them by fine and imprisonment and is within its legislative power. The violation of the terms of the ordinance is not thereby made a crime, but it is quasi criminal, and the penalty is in the nature of a forfeiture for the wrong done to the public where a penalty is given, whether recoverable by criminal or civil process. In the case of City of St. Louis v. Green, 7 Mo. App. 481, it was held that this general power in the charter was not sufficient to authorize such a penalty for nonpayment of a tax, but that case was reversed upon that point in City of St. Louis v. Green, 70 Mo. 562, and it was held that the municipality had the power to enforce an occupation tax by fine. To the same effect are City of St. Louis v. Sternberg, 69 Mo. 289; City of Cincinnati v. Buckingham, 10 Ohio 257; Shelton v. Mayor of Mobile, 30 Ala. 540 (68 Am. Dec. 143) ; Henry Vandine, Petitioner, 6 Pick. (Mass.) 187 (17 Am. Dec. 351) ; Chilvers v. People, 11 Mich. 43.
6. Plaintiffs contend that the ordinance is void because it is not uniform in its application to all persons similarly situated as to these plaintiffs and is discriminatory in that it expressly exempts vehicles used for pleasure, out *582of town vehicles used in the city by their owners, and those taxed under Ordinance No. 14,053. It is not questioned that the council has power to license vehicles for revenue, as attempted to be done in this case, as well as for the purpose of regulation. The charter provision (section 73, subsec. 21) grants this power. Certain trades and callings may be taxed without including all businesses that may be legally taxed for revenue, but the classification must be on some reasonable basis, so that it will apply to all engaged in the same business occupation (State v. Wright, 53 Or. 344 [100 Pac. 296: 21 L. R. A. (N. S.) 349]; State v. Cordon, 65 Conn. 478 [33 Atl. 519: 31 L. R. A. 55: 48 Am. St. Rep. 227] ; In re Yot Sang [D. C.] 75 Fed. 983). And the same principle is applicable to the power to tax vehicles for the privilege of using the streets of the city.
7. It is not essential to the validity of a license ordinance that all vehicles which may be so taxed should be included therein, but it must include all that come within the class sought to be taxed.
8. The classification is for the determination of the council provided it is made on some reasonable basis, and applicable to all similarly situated, without discrimination. Legislative provisions of this character are upheld taxing drays and trucks (City of Burlington v. Unterkircher, 99 Iowa 401, 404: 68 N. W. 795) ; those used for hire in transporting persons or goods (In re City of Newport, 131 Ky, 550: 115 S. W. 744) ; those used for business purposes, whether for hire or not (Johnson v. Mayor and Council of Macon, 114 Ga. 426: 40 S. E. 322) ; hacks and drays or other vehicles used for pay (City of Terre Haute v. Kersey, 159 Ind. 300: 64 N. E. 469: 95 Am. St. Rep. 298); McCauley v. State, 83 Neb. 431 (119 N. W. 675) ; City of Brooklyn v. Breslin, 57 N. Y. 591) ; and it may except vehicles used for pleasure (City of Brooklyn v. Nodine, 26 Hun. 512) or out of town vehicles *583(Ft. Smith v. Scruggs, 70 Ark. 549: 69 S. W. 679: 58 L. R. A. 921: 91 Am. St. Rep. 100). The law is valid if it includes all within the class. When the power is delegated to the city, it may exercise it to the same extent. Exact equality in the tax or in the classification cannot be attained. That is impossible. But it is sufficient if made on a reasonable basis, and includes all within the class, and is not merely arbitrary: Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U. S. 165 (17 Sup. Ct. 255: 41 L. Ed. 666). In Kersey v. City of Terre Haute, 161 Ind. 471, 473 (68 N. E. 1027, 1028), it is said:
“ ‘There is no imperative requirement that taxation shall be equal. If there were, the operations of government must come to a stop, from the absolute impossibility of fulfilling it. The most casual attention to the nature and operation of taxes will put this beyond question. No single tax can be apportioned so as to be exactly just, and any combination of taxes is likely in individual cases to increase instead of diminish the inequality.’ * * The power is essentially legislative in its character, and it is not required, under the constitutional provisions we are now considering, that there should be such exact exclusion and inclusion of the subjects of taxation as to meet fully the approval of the judicial mind as to what is reasonable.”
9. The exception of vehicles that are included under Ordinance No. 14,053, which licenses peddlers and hawkers of merchandise upon the street by means of vehicles is not discriminatory, as such vehicles are already taxed thereby for the privilege of using the street; at least, that is a matter of classification within the power of the council. Such a question was raised in City of Newport v. Fitzer, 131 Ky. 544 (115 S. W. 742: 21 L. R. A. (N. S.) 279), in which it was held that to include them within a vehicle ordinance amounted to double taxation and to that extent the ordinance was held to be void.
10. Objection is also made that the ordinance does not include auto trucks used for hire or without hire, but we *584think the term “automobile” is sufficiently comprehensive to include them. The New International Encyclopedia defines “automobile” as “the generic name which has been adopted by popular approval for all forms of self-propelling vehicles for use upon highways and streets for general freight and passenger service.” See, also, the American Encyclopedia and the Century Dictionary and Cyclopedia (New Edition).
11. However, we are unable to uphold the classification which omits from its terms automobiles used in connection with the owner’s business, which we are justified in assuming as a matter of common knowledge includes a large number of automobiles used by department stores, breweries, groceries, express companies, physicians, and others, not used for hire. Nelson’s Ency. And are in the same class as those taxed by the ordinance, viz: “For each delivery wagon delivering goods, wares, or merchandise within the city, without charge, drawn by two animals; for each delivery wagon drawn by one animal; for each truck or dray drawn by two animals; for each truck or dray drawn by one animal; for each vehicle used for hauling dirt, wood, brick, stone, lumber, sand, gravel, or like material, drawn by two animals (the same drawn by one animal); for every vehicle not above enumerated used for business, drawn by two animals (and the same drawn by one animal).” The complaint alleges that there are large numbers of such vehicles propelled by their own power, used within the city by their owners, in their own business, without hire. It is an arbitrary classification to say that an automobile using the streets for the same purpose as those vehicles drawn by horses which are taxed shall pay no vehicle tax. Such classification is not made on a reasonable basis and renders the ordinance void.
It is also objected that the ordinance does not state the object of the tax. But that is immaterial, as the charter *585provides that it must be placed in the “street repair fund” and the council can make no other disposition of it, and that provision is self-executing.
For the reason above assigned, the decree will be reversed and one entered here adjudging the ordinance void, and enjoining the city from the enforcement of it.
Reversed.
Mr. Justice Moore and Mr. Justice McBride concur. Mr. Justice Slater and Mr. Justice King having been succeeded by Justice Bean and Justice Burnett took no part in this decision.