The facts are stated in the opinion Mr. Custer E. Ross, for appellants: The defendant city has power to impose reasonable regulations upon those using its streets, adopted in view of local conditions and requirements respecting the streets, the travel, and the public safety.

Dent v. Oregon City, 106 Or. 122, 211 Pac. 909; Thielke v. Albee, 79 Or. 48, 153 Pac. 793; Cummins v. Jones, 79 Or. 276, 155 Pac. 171.

The power of a city over public utility vehicles using the streets as a stand for receiving and discharging passengers goes to the extent of prohibition.

Dent v. Oregon City, and Cummins v. Jones, supra.

Where the city has the right to prohibit public utility vehicles from using the streets as a stand for receiving and discharging passengers, it has all lesser degrees of authority, and may lawfully prescribe licenses which amount to prohibition.

State v. Hume, 52 Or. 1, 95 Pac. 808; Freund, Pol. Power, § 260.

Where a right sought to be exercised is not common or fundamental, and especially where special privileges are asked, such as using a street as a stand for receiving and discharging passengers, the city may grant the required permit or license on such conditions as it may prescribe, and no constitutional provision is violated thereby.

State v. Hume, supra; Freund, Pol. Power, § 24; Rosa v. Portland, 86 Or. 438, L.R.A.1918B, 851, 168 Pac. 936; Greene v. San Antonio, Tex. Civ. App. 178 S. W. 6. The fact that a jitney bus has been

of the court.

licensed in conformity to the provisions of the Motor Vehicle Law does not authorize the jitney bus so licensed to use the streets of the city as a stand for transacting its business and receiving and discharging passengers.

Dent v. Oregon City, 106 Or. 122, 211 Pac. 909.

Mr. Fred A. Williams, for respondent:

Municipalities are restricted to license fees under regulatory ordinance, and such fees are nominal in amount. Lovejoy v. Portland, 95 Or. 459, 188 Pac. 207.

The Motor Vehicle Act of Oregon herein referred to provides a combination of the taxing, licensing, and police power, but the fact that it embraces all three functions does not alter the position that it is a taxing measure for revenue, a licensing measure, and the exercise of police power.

Camas Stage Co. v. Kozer, 104 Or. 600, 25 A.L.R. 27, 209 Pac. 95; State v. Preston, 103 Or. 681, 23 A.L.R. 414, 206 Pac. 305.

The state of Oregon has definitely adopted the general policy of complete control of both private and public automobiles, and delegated all powers necessary to function in state authorities, and no municipality has the right to interfere by imposing fees through charter or ordinances except for regulatory purposes.

Hillsboro v. Public Service Commission, 97 Or. 320, 187 Pac. 617, 192 Pac. 390.

The ordinance in question does not provide a regulatory license fee, but a tax.

Ellis v. Frazier, 38 Or. 462, 53 L.R.A. 454, 63 Pac. 642; Reser v. Umatilla County, 48 Or. 326, 120 Am. St. Rep. 815, 86 Pac. 595; 17 R. C. L. 439, 532, ,7, 50.

The streets of a city are not its private property and the legislative assembly has paramount authority over the same.

Simon v. Northup, 27 Or. 487, 30 L.R.A. 171, 40 Pac. 563; Yocum v. Sheridan, 68 Or. 232, 137 Pac. 222; Cole v. Seaside, 80 Or. 73, 156 Pac. 569.

The legislature has delegated to the public service commission of Oregon full, complete, and exclusive power to fix rates and prescribe rules and regulations for the governing of "transportation companies" in all matters affecting the relationship of such companies with passengers, and in case of conflict the orders of the commission prevail.

Portland R. Light & P. Co. v. Portland, 210 Fed. 667.

A city cannot assume rights contrary to the general law vesting jurisdiction in the public service commission.

Hillsboro v. Public Service Commission, 97 Or. 320, 187 Pac. 617, 192 Pac. 390.

If the city ever had the right to prohibit the use of its streets to an auto carrier of the class of plaintiff it is now deprived of that right.

Dent v. Oregon City, 106 Or. 122, 211 Pac. 909; Camas Stage Co. v. Kozer, 104 Or. 600, 25 A.L.R. 27, 209 Pac. 95; Northwest Auto Co. v. Hurlburt, 104 Or. 398, 207 Pac. 161.

Every charter, power, and ordinance of municipalities which conflicts with the Motor Vehicle Act and the Public Service Commission Act is by the latter acts repealed.

Rose v. Portland, 82 Or. 541, 162 Pac. 498; Colby v. Medford, 85 Or. 485, 167 Pac. 487; Dent v. Oregon City, supra.

As a matter of public concern it is generally conceded that the transportation by interurban vehicles is now no longer a municipal affair, but an affair of the state.

Helmer v. Superior Ct. 48 Cal. App. 140, 191 Pac. 1001.

Rand, J., delivered the opinion of the court:

The plaintiff is a common carrier of passengers between Salem and Silverton, by means of motor vehi

cles, under a permit regularly issued by the public service commission. He brought this suit to enjoin the enforcement of an ordinance of the city of Silverton. This ordinance was passed on March 28, 1923, and it prohibits the operator of any vehicle used for the carriage of passengers or property for hire between points within and without the city, from receiving or discharging passengers or property on any of the public streets of the city, except upon payment to the city of a license fee of $300 per annum for each vehicle having the seating capacity of those operated by plaintiff. The ordinance also provides that permits may be issued upon the annual payment of $75 for each stage having the seating capacity of those operated by the plaintiff, on condition that the operator shall provide a stage terminal in the city of Silverton, which, under the terms of the ordinance, shall be located entirely upon privately owned property, shall be housed in a substantial structure, and be constructed in conformity to the ordinances of that city, and be equipped with suitable waiting rooms, which shall be heated in the cold season, and shall have adjacent thereto suitable lavatories and toilet facilities for both males and females. But in such case the carrier must receive and discharge all passengers at the terminal station, and is not permitted to receive or discharge passengers on the public streets at all. It also provides that the fares and charges for transportation shall be just and reasonable, and that, if the same are exorbitant or unreasonable, the permit may be revoked by the council. It prescribes the streets which may be used by motor vehicles carrying passengers or property for hire in entering and departing from the city of Silverton, and forbids the use of streets other than those designated. It provides a penalty of imprisonment or fine, or both, for its violation, and gives the recorder of the city power

to revoke the license for a second or subsequent conviction for violation of its terms. By its terms the ordinance is made applicable to all carriers, whether operating wholly within the city or operating to and from points outside of the city.

By chapter 10, Laws Sp. Sess. 1921, the legislature confers upon the public service commission of Oregon the exclusive power to regulate public carriers engaged in transporting by motor-propelled vehicles passengers or property for hire over the public highways of the state, not operating exclusively within the corporate limits of an incorporated city or town. Under this statute it is made the duty of the public service commission of this state to supervise and regulate all transportation companies engaged in the transportation of persons or property for hire by motor vehicles over the public highways of the state, and to fix their rates and charges therefor. The term "transportation company" is defined by the act to include every corporation or individual thus engaged, and the term "public highway" as defined means "every public street

in this state."

Section 1. The commission is empowered to prescribe general rules and regulations governing such transportation and providing for the safety thereof; to require them to furnish adequate facilities for the conduct of their business, and to file annual reports and to furnish such other information as the commission may require. The act requires transportation companies to pay an annual license fee to the commission in order to defray the expenses of administering the act, and to furnish bonds with sufficient sureties satisfactory to the commission, conditioned to pay the fees prescribed by § 25 of chapter 371 of the General Laws of Oregon for 1921, as amended by chapter 8, Laws Sp. Sess. 1921. Section 9 of chapter 10, Laws Sp. Sess. 1921, prescribes a penalty which may be enforced upon any carrier under the act

who violates or fails to comply with any order, decision, rule, regulation, or requirement of the public service commission, and § 3 of chapter 10 provides that the public service commission, in the exercise of its jurisdiction, shall have the power to make orders, and prescribe rules and regulations affecting transportation companies, "notwithstanding the provisions of any charter, ordinance, or permit of any incorporated city or town or county, and, in case of conflict between any such order, rule, or regulation of any such charter provision, ordinance, or permit, the order or regulation of the public service commission

shall in each instance prevail, but cities and towns may enact and enforce reasonable regulatory licenses not destructive of the general purposes of this act." Section 26 of chapter 371 provides that the registration and license fees imposed upon motor vehicles "shall be in lieu of all other taxes and licenses, except municipal license fees under regulatory ordinances, to which such vehicles or the owners thereof by reason of such ownership may be subject."

Under the plain provisions of § 26, chapter 371, the payment by transportation companies of the registration and license fees prescribed by § 25 thereof, as amended, was made to and accepted by the state upon the express condition that no other tax or license fee should be exacted of any transportation company by the state, or by any municipality or governmental agency of the state, except such reasonable municipal license fees as should be imposed by municipalities for purposes of regulation only, and then only for such an amount as would be necessary to cover the expenses of such regulation; while under the provisions of § 3 of chapter 10, quoted above, the ordinance in question cannot be upheld or enforced unless it (1) is a mere reasonable regulation not destructive of the general purposes of the act embraced in chapter 10, and (2) imposes the payment of a mere

Highway-control of city streets.

The public streets within the limits of an incorporated city or town are a part of the public highways of the state and be long to the whole people of the state. They are maintained primarily for the benefit of the people at large. Persons residing in the city or town have an equal, but not a superior, right to the use of the streets over those who reside elsewhere. All alike must make a reasonable use of them so as not unduly or unreasonably to interfere with the common right possessed equally by all. The municipalities themselves possess no legislative power over

-legislative

ipality.

the public streets

power of munic- within their corporate limits unless conferred by some legislative authority. It is within the legislative power to delegate to municipalities the sole power to regulate and control the streets within their corporate limits and to withdraw this delegated power at will.

Under the provisions of chapter 10, municipalities are given the power to regulate and control traffic upon their streets which begins, ends, and is completed within their corporate limits, but as to the transportation for hire of passengers or property by motor vehicles not exclusively and wholly conducted within the corporate limits of a city or town, the power to regulate it is conferred exclusively upon the public service commission of the state, and no power, whether previously conferred by charter or legislative enactment, remains in the cities or towns except the mere power to pass or enforce some purely regulatory ordinance which in no wise conflicts or interferes with the regulation of the traffic by the public service commission.

Plaintiff neither has nor maintains a terminal stage at Silverton, and in order for him to operate in conformity to the ordinance in question, in

31 A.L.R.-38.

conflict beauthorities and

tween municipal

public service commission.

carrying passengers between Salem and Silverton, he will be required to pay an annual license fee of $300 per annum for each auto stage used in that connection. It is manifest that this is not the imposition of a charge for merely regulatory purposes only, but is a burden intended to be imposed for revenue purposes, and is, therefore, a tax, under the doctrines announced in Ellis v. Frazier, 38 Or. 462, 53 L.R.A. 454, 63 Pac. 642; Reser v. Umatilla County, 48 Or. 326, 120 Am. St. Rep. 815, 86 Pac. 595; Hofer v. Carson, 102 Or. 545, 203 Pac. 323. It is sought to be imposed for the mere privilege of receiving and discharging passengers upon the public streets of Silverton. It is unlawfully imposed because in direct conflict with the express terms of the statute, and is an attempt to exercise power not conferred by the legislature upon the city. In order for plaintiff to transport passengers for hire between Salem and Silverton, as authorized by the public service commission, it is necessary for him to receive and discharge his passengers upon the public streets of Silverton. He is authorized to transport them to and from Silverton, and he cannot be compelled to receive or discharge them outside of the corporate limits of that city. To receive and discharge passengers upon the public streets of a city is an essential and necessary part of the transportation by automobile busses of passengers from one place to another, and when this is being done in the usual and customary way, under a permit regularly issued by the public service commisthe power of a musion, it is not within nicipality to prevent or prohibit it. This provision of the ordinance, as well as some of the others herein before alluded to, is in direct violation of the provisions of the statute, and is therefore illegal and void. The

Municipal corporation-power

to forbid motor and discharge passengers on

busses to take

concur.

Burnett, J., took no part in the decision of this case.

Power sustained.

The power of the municipality to impose a license tax or fee is, of course, confined to occupations carried on within its municipal limits. But with respect to interurban carriers a difference of opinion prevails as to whether the operation of public conveyances on the streets of a municipality brings them within the municipal taxing power, despite the fact that such operation is but an incident to a business extending beyond the limits of that power. No general rule can be stated, because the matter is affected by the precise terms of the grant of the taxing power to the municipality, and the nature and extent of the operations of the carrier within the municipal limits. In each of the following cases an interurban carrier was held to be subject to the imposition of a license fee or tax by a municipality through which it operated: Opdyke v. Anniston (1918) 16 Ala. App. 436, 78 So. 634; Canton v. Illinois C. Electric R. Co. (1916) 272 Ill. 306, 111 N. E. 1007 (compare East St. Louis v. Bux (1892) 43 Ill. App. 276; Cairo v. Adams Exp. Co. (1894) 54 Ill. App. 87); Leavenworth v. Ewing (1909) 80 Kan. 58, 101 Pac. 664, affirmed in (1909) 226 U. S. 464, 57 L. ed. 303, 33 Sup. Ct. Rep. 169; Young v. Campbellsville (1923) 199 Ky. 284, 250 S. W. 979; Gulfport & M. C. Traction Co. v. Biloxi (1921) 125 Miss. 626, 88 So. 173; Southeastern Exp. Co. v. Charlotte (1923) 186 N. C. 668, 120 S. E. 475.

Compare Plymonth v. Cooper (1904) 135 N. C. 1, 47 S. E. 129.

In Canton v. Illinois C. Electric R. Co. (1916) 272 Ill. 306, 111 N. E. 1007, it was held that an interurban railway, operating its cars within city limits in the manner of a local street railway, was subject to the license tax provided

by an ordinance of the city. Within the city limits of cities and villages the cars stopped at street intersections, at signal, to take on and discharge passengers. The court said: "The question is whether the appellee has power to exact such license fee from the appellant. . . If the appellant only stopped to discharge and take on passengers at its regular ticket station in the city of Canton, its railway would come within the well-understood definition of a general commercial railway; but if it also performs within the city the ordinary and usual functions of a street railway, it pursues within the city limits a like occupation with hackmen or cabmen. So far as the ordinance provides for the payment of a license by every person, company, or corporation engaged in the business of operating or running interurban cars for the convenience of passengers or merchandise upon or through any street within the city, the ordinance is unauthorized, but so far as it requires the payment of a license fee from a corporation operating and running street cars for the convenience of passengers within the city limits, the ordinance is valid, and if the appellant is engaged in the street railway business in the city the judgment is right. The appellant runs its cars on a regular schedule over its line, making regular stops at various points in the several villages and cities through which it passes, including the city of Canton. Its cars also stop on signal at the several street intersections in the city of Canton. The appellant pursues the same occupation as the ordinary street railway company, stopping on signal at any and every street intersection to receive and discharge passengers.