Barron v. City of Minneapolis

• Decision Date: 12 June 1942
• Docket Number: No. 33245.,33245.
• Citation: 4 N.W.2d 622,212 Minn. 566
• Parties: BARRON v. CITY OF MINNEAPOLIS et al.
• Court: Minnesota Supreme Court

4 N.W.2d 622

212 Minn. 566

BARRON v. CITY OF MINNEAPOLIS et al.

No. 33245.

Supreme Court of Minnesota.

June 12, 1942.

Appeal from District Court, Hennepin County; Winfield W. Bardwell, Judge.

Declaratory judgment action by E. T. Barron, doing business as E. T. Barron &amp Company, against the City of Minneapolis and others, for declaration concerning validity of a city ordinance. From an order overruling defendants' general demurrer to the complaint, the defendants appeal.

Affirmed.

R. S. Wiggin, City Atty., and John F. Bonner, Asst. City Atty., both of Minneapolis, for appellants.

Gleason, Ward & Orff and S. Paul Skahen, all of Minneapolis, for respondent.

JULIUS J. OLSON, Justice.

Action under the declaratory judgments act (Mason St.1940 Supp. § 9455-1 et seq.) for a judicial determination of the validity of a Minneapolis ordinance. So far as here important, the complaint alleges that plaintiff has been engaged in the business of selling candy, gum, peanuts, and unbottled soft drinks and edibles of different kinds by means of coin-vending machines, and that he is also engaged in "leasing, selling and distributing" such machines. He had been licensed under an ordinance approved March 29, 1932, referred to in the record as exhibit A, which he claims "is now and has been at all times hereinafter mentioned in full force and effect." That ordinance is not under attack. On March 3, 1941, a new ordinance was enacted, referred to as exhibit B. Under its provisions, a vending machine is defined as "a machine which for a fee deposited therein returns candy, gum, peanuts, unbottled soft drinks, or edibles of any kind or nature. A unit shall mean each single vending machine." The "owner or vendor" of each such machine, before selling, renting, leasing, or otherwise disposing of it, is required to obtain a license so to do. The annual license fee is "$5.00 for each five-cent or over vending unit, and $1.00 for each one-cent vending unit." No one may receive a license for such a machine "unless he has in force a food license" at the place where the machine is in operation. Each machine so licensed is to be identified by "suitable identification marks and numbers" to be "permanently affixed" to it. The licensee at the time of making his application for license, and semiannually thereafter, is to file with the bureau of licenses a list of the places in which his machines are located. Any violation of the ordinance is punishable by a fine of not exceeding $100 or imprisonment for a period not exceeding 90 days.

Plaintiff's attack is based on constitutional grounds. He argues a number of these, his assertion being that if the ordinance is valid at all it must rest upon the health or the general welfare provisions of the city charter. The alleged defect to which we shall direct our attention is that which has to do with his claim that the ordinance is in its purpose and effect a revenue measure masquerading under the guise of a fee for the issuance of licenses.

For defendants, it is claimed (1) that since the complaint contains no allegation "that immediate destruction of property is involved" plaintiff has an adequate remedy at law and as such may not proceed under the declaratory act; (2) that since plaintiff has recognized the old ordinance he may not invoke the declaratory act as to this one; and (3) that, in any event, the later act is a valid one although it contains nothing by way of repeal, amendment, or limitation upon the former ordinance. To avoid the threatened risk of summary proceedings to enforce the ordinance, plaintiff asks the court to "assume jurisdiction and determine the validity or invalidity of said new ordinance of 1941." Defendants' general demurrer to the complaint was overruled, and they appeal, the court having certified that the issues presented are important and doubtful.

1. We shall determine first defendants' claim that the declaratory act is unavailable to plaintiff. The statute is broad and comprehensive in its terms, for it provides, Mason St.1940 Supp. § 9455-1: "Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed."

Section 9455-2 provides: "Any person * * * whose rights, status or other legal relations are affected by a * * * municipal ordinance * * * may have determined any question of construction or validity arising under the * * * ordinance * * * and obtain a declaration of rights, status or other legal relations thereunder."

Here, as we have seen, plaintiff is in a dilemma as to which ordinance applies to him and his business. If the ordinance is one for a license and not merely for revenue, then, clearly, it is to his interest and likewise to that of the city to have such issue determined. So it is plainly to be seen that the situation is one that affords a good reason for making use of the act. Defendants' cases on this score, namely, Cobb v. French, 111 Minn. 429, 127 N.W. 415; Basting v. City of Minneapolis, 112 Minn. 306, 127 N.W. 1131, 140 Am. St.Rep. 490, and Milton Dairy Co. v. Great Northern Ry. Co., 124 Minn. 239, 144 N.W. 764, 49 L.R.A.,N.S., 951, were decided before the act was passed...