Brown Common Pleas. mit together with police supervision, which is termed a licenso tee. In Ohio, at least, municipalities are given no further powers in respect of licensing vehicles that so occupy the streets. No authority to tax has been granted, and it would be of doubtful constitutionality if such authority were attempted to be granted. Having decided that municipalities have the right to so license as an incident to the right to regulate, let us examine the ordinance in question and see if it falls under the definition given. The ordinance does not purport to be a regulatory measure in any particular. It does not specify a single rule that the operators of motor vehicles must observe in the use of the streets. It does not provide for the expense of issuing the license being taken out of the money received therefor, but requires that all the money and receipts derived from the enforcement of the ordinance shall be used for the repair of the streets. It is perfectly apparent that the intention in passing the ordilance was not to regulate the use of vehicles on the streets of the runicipality, but to provide a new source of revenue for the repair of the streets. The original ordinance has a flat license fee of $50.00 per year. The amendment changes this to $25.00 for one and $5.00 for each additional vehicle. In either instance it is clear that it was intended as a revenue measure. It is nothing more than a tax under the guise of a license. Such license fee to be valid must be reasonably proportionate in amount to the expense incurred in keeping such records and issuing such document and police supervision. The fee of $1.00 to be paid the officer who does all the work and keeps the record would suggest the idea that a fee to be reasonably proportionate to the expense could not be far above that sum. The ordinance herein construed is much different from the instance of a "Jitney Bus" line that occupies the streets like a street railroad, making regular trips over stated streets. Many requirements might be attached to the latter that would be unreasonable to attach to the former. My conclusions are that under the laws of Ohio a municipality has the right to regulate and license the use of its streets 1 Watson v. Ripley. by motor vehicles for hire, but that the license is an incident to the right to regulate, and the fee charged must be reasonably proportionate to the expense incurred in issuing the license and the police supervision. That the ordinance in question is not a regulatory ordinance at all, and the license required is nothing more than a tax, and, therefore, the ordinance in so far as it relates to motor vehicles is void. The judgment of the mayor's court will be reversed with costs. ATTACHMENT-LIENS. [Lawrence Common Pleas, November 26, 1917.] IRONTON GARAGE Co. V. GEORGE MCKEE, CONSTABLE. Lien for Labor on Personal Property not Waived by Levying Attachment. One who has a common law lien on personal property by reason MOTION for new trial. W. L. Elkins and Jed B. Bibbee, for defendant. Cited and commented upon: Root v. Railroad Co. 45 Ohio St. 222 [12 N. E. 812]; Jordan v. James, 5 Ohio 88, 98; Dix v. Smith, 50 L. R. A. 714, 720n [9 Okla. 124; 60 Pac. 303]; Legg v. Willard, 34 Mass. (17 Pick.) 140 [28 Am. Dec. 282]; Citizens' Bank v. Dows, 68 Iowa 460 [27 N. W. 459]; Phillips v. Freyer, 80 Mich. 254 [45 N. W. 81]; Vane v. Newcomber, 132 U. S. 220 [10 S. Ct. 60; 33 L. Ed. 310]; Platt & Washburn Ref. Co. v. Smith, 10 Dec. Re. 424 (21 Bull. 122); Green v. Coit, 81 Ohio St. 280 [90 N. E. 794; 135 Am. St. 784]; Krug v. Cash Register Co. 13 Dec. 735 (1 N. S. 273); Wrightson v. Bettinger, 1 Circ. Dec. 543 (2 R. 381); Green v. Bass, 83 Ohio St. 378 [94 N. E. 742; 22 Ann. Cas. 828]; Robinson v. Fitch, 26 Ohio St. 659; 4 Elliott, Contracts, 297; 3 Bates Pleading and Practice, 2452. Lawrence Common Pleas. Andrews & Irish, for plaintiff : 1 Jones, Liens, 731, 744; Treadway and Marlett, 12 Ohio Lien Laws (2nd ed.) Sec. 163; Green v. Bass, 83 Ohio St. 378 [94 N. E. 742; 22 Ann. Cas. 828]; Lambert v. Nicklas, 45 W. Va. 527 [31 S. E. 951; 44 L. R. A. 561; 72 Am. St. 828]; Whitaker v. Summer, 37 Mass. (20 Pick.) 399; Townsend v. Newell, 31 Mass. (14 Pick.) 332; West v. Flemming, 18 Ill. 248. [68 Am. Dec. 539]; Angier v. Bay St. Dist. Co. 178 Mass. 163 [59 N. E. 630]; Salt Lake Lithographing Co. v. Mine and Smelting Co. 15 Utah 445 [49 Pac. 768]; Martin v. Becker, 169 Cal. 301 [146 Pac. 665]; Hatcher v. Manufacturing & Supply Co. 69 C. C. A. 19 [133 Fed. 267]; Beatty v. Cole, Crane & Co. 20 Dec. 176 (9 N. S. 268); affirmed, Cole, Crane & Co. v. Beatty, 86 Ohio St. 313. CORN, J. One Definer placed with plaintiff his automobile for repairs, and upon which plaintiff expended labor and materials to the amount of $41.70, and of which plaintiff retained possession urtil payment should be made. While so in the possession of plaintiff, one Wilbur Jones caused it to be attached for a debt due him from said Deffner. Subsequently, the plaintiff itself sued out, and caused to be levied by the defendant, an attachment against the automobile for its claim for repairs, but which, so far as the evidence discloses, was not prosecuted further. In due time, the justice sustained the attachment of Jones and ordered a sale. The plaintiff, claiming that it had never yielded possession to the officer under the Jones attachment, refused to surrender it for the sale and the officer forcibly took it from the possession of plaintiff and advertised and sold it under said attachment. Plaintiff brought an action in replevin, but no bond being given for the possession, the action proceeded as one for damages (Sec. 12,070 G. C.), resulting in a verdict for plaintiff in the sum of $50.00. Counsel for the motion insist upon two grounds: First: That the verdict is against the manifest weight of the evidence. Garage Co. v. McKee. Second: That the court erred in refusing to direct a verdict for defendant at the close of plaintiff's evidence, it affirmatively appearing, at that stage of the proceedings, that plaintiff had caused an attachment to be levied upon the property, for the labor and repairs upon which it was asserting a common law lien, and that thereby it lost or waived such common law lien. All I care to say about the first ground is that the testimony is in conflict, and believing that the rules of law applicable to the case were properly expounded to the jury, and the questions of fact, the credibility of the witnesses, and the weight to be given to their testimony all being within the special province of the jury to determine, the verdict should not be disturbed upon that ground. The second ground presents a question of law upon which both text writers and courts are in conflict, and it seems that it is impossible to harmonize the decisions. The jury, by its verdict, found that possession of the autɔmobile was not surrendered by plaintiff to the attaching officer under the Jones attachment, and I have already indicated that i am not disposed to disturb that finding; so that a naked proposition of law presents itself: "Does one lose or waive his common law lien for labor and materials expended upon personal property by subsequently levying an attachment upon the property for the debt?" Counsel, after much diligence, have been unable to cite, and I am not advised of any reported case in Ohio decisive of the question, and as before stated, reported decisions from other states appear to be in sharp conflict. But following the reasoning of Judge Shauck, Green v. Bass, 83 Ohio St. 378, 384 [94 N. E. 742; 22 Ann. Cas. 828], there should be no good reason why a lien or security should rot continue until the discharge of the obligation, unless such hen is lost by an intentional waiver, or when depending upon. possession, then by a voluntary surrender of such possession. And the intent to waive must be express, or very clear and plain. The presumption is always against it. Lambert v. Nicklas, 45 W. Va. 527 [31 S. E. 951; 44 L. R. A. 561; 72 Am. St. 828] Lawrence Common Pleas It is claimed, however, upon some very respectable authority that levying an attachment upon the property is such waiver, and "is in effect an assertion that the property belongs to the defendant." These are conclusively answered by Justice Brannon in Lambert v. Nicklas, supra, as follows: "It is argued that judgment in this action merged and destroyed the lien. Judgment does not merge the cause of action so that it can not be sued on again; but I understand that in law, the debt is one thing, and its lien on given property another thing, and that judgment does not destroy the lien. The creditor may enforce both, and his election of one does not exclude the other as a remedy." (See also Green v. Bass, 83 Ohio St. 378.) "As to the clause from Jones that the attachment is in effect an assertion that the property attached belongs to the defendant. I will say that there is no force in it, because by claiming a lien the plaintiff asserts that it belongs to the defendant as much as by attaching it; he asserts the same thing by both lien and attachment, and no estoppel can, therefore, be based upon any contradiction between the two." "In Arendale v. Morgan, 5 Sneed, 703, the question is considered and the court refused to follow that doctrine, and held that where one has property in pledge for debt and parts with possession, with intent to abandon the lien, as if he agrees that it be attached at the suit of a third person, it is gone; but not so, where he attaches for his own debt. This is the true position." It is claimed further by counsel for the motion that when the officer levied on the property in question, plaintiff lost his lien because he must, under the circumstances, give up possession. Following the reasoning in Lambert v. Nichlas, supra, the officer is the agent for the plaintiff for the purposes of the attachment; to say otherwise is technical in the highest degree and defeats justice. The plaintiff is not surrendering possession to the owner ror to anyone else acting in the furtherance of the owner's demand. The plaintiff could bring suit without forfeiting his lien, and by resorting to an attachment he simply avails himself |