#### City of Buffalo, Appellant, *v.*Dai H. Lewis, Respondent.

Fourth Department,

January 8, 1908.

Municipal corporation—motor vehicles — local tax for. use of public streets —charter powers repealed by Motor Vehicle Law.

Section 17 of the charter of the city of Buffalo, as amended by chapter 31 of the Laws of 1904, which gave power to that city to impose a tax upon the owners of automobiles for the privilege of operating uppn the public streets and providing a penalty, was repealed by section 7 of the Motor Vehicle Law (Laws of 1904, chap. 538) providing that, with some exceptions, local municipal authorities have no power to pass or enforce local ordinances regulating motor vehicle licenses or permits to use the public highways, etc. Hence, an ordinance of the city of Buffalo imposing a tax on motor vehicles using the public streets is void and unenforcible.

It is immaterial that the charter used the word “ tax ” instead of “license,” for a tax for *the privilege*of using the public streets is in effect a license.

Appeal by the plaintiff, the City of Buffalo, from a judgment of the Municipal Court of the city of Buffalo in favor of the defendant, rendered on the 27th day of July, 1907, upon the decision of the court sustaining the defendant’s demurrer to the complaint and. dismissing the said complaint.

*Louis E. Desbecker*and *William S. Rann,*for the appellant.

*Daniel J.*Kenefick, for the respondent.

Williams, J.:

Interlocutory judgment should be affirmed, with costs, with leave to plead over on payment of costs of demurrer and this appeal.

The action was brought to recover a penalty for the violation of an ordinance of the city of Buffalo, the failure to pay a tax of five dollars, imposed upon defendant as the owner of an automobile. The penalty was ten dollars.in addition to the tax, fifteen dollars in all.

The ground of the demurrer was that the complaint failed to state facts constituting a cause of action. The point was that the city had no power to enact the .ordinance or that it had since been invalidated by statute. The ordinance was passed Under authority given by subdivision 6 of section 17 of the charter, being chapter 105 of the Laws of 1891, as amended by chapter 31 of the Laws of 1904. This *164amendment became a law March 1, 1904. It provided that the city should enact ordinances for many purposes, and among others, to impose and levy a tax upon the owners of various kinds of vehicles, and among them of automobiles, 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.”

Soon after this amendment of 1904 to section *11*of the charter took effect the ordinance in question was' enacted, being section *21*of chapter 6 of the city ordinances, providing, among other things, that the owners of automobiles operated or propelled within the city should pay a tax of five dollars on each machine, to become due May first in each year, and when paid to be placed to the credit of a fund for the repair of the streets; and that any person who should neglect or refuse to pay the tax within one month after due, should be liable to a penalty of ten dollars, in addition to the tax. But the Legislature in 1904 enacted the Motor Vehicle Law (Laws of 1904, chap. 538), which took effect May 3, 1904, and by section *1*thereof it was provided that “All acts and parts of acts inconsistent herewith or contrary hereto- are, so far-as they are inconsistent or contrary, hereby repealed.” By section 1 of tliis latter act it was provided, among other things,, that, except as otherwise therein provided, the act should he controlling on the use of motor vehicles on the public highways, including the streets, avenues, etc., of cities, with certain exceptions not important here. By section 4 it was provided, among other things, that, subject to the provisions of this act-,, local authorities should have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from Owners of motor vehicles licenses or permits to use the public highways or prohibiting them from the free use thereof, they having complied with the provisions of this actj and all such ordinances, rules and regulations in force at the time this act took effect were .declared to be invalid and of no effect.

*165The object and purpose of this act was to provide exclusively (except so far as the local authorities were given express power to act) for the use of the public highways of the State by motor vehicles. There was apparently a good deal of feeling against automobiles, and great danger that some local authorities might so seriously interfere with their usé of thé public highways as to practically prohibit such use altogether.

It seems to us that the provisions of section 17 of the charter, as amended in 1904, giving the city power to enact ordinances imposing a tax upon the owners of automobiles for the'privilege Of operating the same upon the public streets of the city, and to prohibit, such use of the streets in the event of the non-payment of the tax, and providing a penalty in addition to the tax, were repealed by section 7 of the Motor Vehicle Law. There can be little use in discussing this proposition at length. Counsel have gone over it in great detail, and the judge of the Municipal Court has written an opinion upon the subject. It seems to us almost too plain to discuss. In the charter the word *“ tax*” is used instead of “ license,” but when the *tax*is- allowed *for the privilege,*what is this but a *license*for the privilege of using the streets to operate automobiles in, especially where such use is prohibited and a penalty imposed in case the tax is not paid. The Motor Vehicle Law provides that the city shall have no power to pass, maintain or enforce ordinances requiring from owners of automobiles licenses or permits to use the streets, or prohibiting the free use thereof, and that all such ordinances thus in force should be invalid.

. The demurrer was properly sustained.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to plead, over upon payment of the'costs of the demurrer and of this appeal.