City of Monroe v. Endelman

• Citation: 138 N.W. 70,150 Wis. 621
• Parties: CITY OF MONROE v. ENDELMAN.
• Decision Date: 29 October 1912
• Court: United States State Supreme Court of Wisconsin

150 Wis. 621

138 N.W. 70

CITY OF MONROE

v.ENDELMAN.

Supreme Court of Wisconsin.

Oct. 29, 1912.

Appeal from Circuit Court, Green County; George Grimm, Judge.

Action by the City of Monroe against D. Endelman. Judgment for defendant, and plaintiff appeals. Affirmed.

The city of Monroe is the county seat of Green county, with a population of about 4,500, and is a city of the fourth class, operating under the general charter law of the state. Three policemen are employed by it to whom it pays salaries of $75, $65, and $60 per month, respectively. For several years the rate of taxation in the city has been approximately 2 per cent. on the assessed valuation of all property, real and personal. On the 18th day of October, 1910, the city, pursuant to chapter 490, Laws of 1905, passed an ordinance requiring all transient merchants desiring to do business therein to obtain a license, and to pay therefor at the rate of $25 per day. The defendant, Endelman, is a nonresident of the state of Wisconsin; his home being in Columbus, Ohio. For the past 10 or 11 years he has been a transient merchant. He came to the city of Monroe on the 23d day of July, 1911, bringing with him a stock of clothing of the value of $2,500 to $3,000. He rented a store building, for which he agreed to pay $30 per month, had two clerks to whom he paid $5 per day, and had a transient merchant's license issued to him by the state for which he had paid $75. On the 27th day of July, 1911, the defendant offered for sale, and sold, merchandise in the city without first having obtained a local license, as required by the ordinance hereinbefore referred to. The defendant sold goods in the city of Monroe during the days of July 27, 28, 29, and 31, 1911. He took out a local license for each of the dates of July 28th, 29th, and 31st and paid under protest for each license $25. During the four days the defendant sold goods in the city his gross sales amounted to $352 or an average of $88 per day. His profits were 20 per cent. of his gross sales. His daily expense, other than clerk hire, was about $7. It was then a dull time or season of the year for that class of business. The cost of issuing a license to the defendant by the city did not exceed $1. The character of the defendant's business was such that it did not require any special police protection or inspection, and it was conducted and carried on by the defendant in an orderly and law-abiding manner. The above are substantially all the facts stipulated to be the facts upon the trial of the case. The defendant was arrested for conducting the business of a transient merchant on the 27th day of July without first having paid the license or per diem fee of $25 as required by the city ordinance. He was brought before the police justice of the city, who found him guilty of violating the ordinance, and imposed a fine of $50 and the costs of the action. The defendant then appealed to the circuit court for Green county, before whom the case was tried upon the facts hereinbefore set forth. The circuit court sustained the constitutionality of chapter 490 of the Laws of 1905, but held the ordinance void on the ground that it was unreasonable and in effect prohibitory, and entered judgment in favor of the defendant, from which the plaintiff appealed.W. H. McGrath, of Monroe, for appellant.

J. L. Sherron, of Monroe, and T. S. Nolan, of Janesville, for respondent.

VINJE, J. (after stating the facts as above).

[1] Chapter 490, Laws of 1905, is entitled, “An act relating to hawkers and peddlers and various other occupations.” Among the occupations therein mentioned is that of transient merchants, circuses and exhibitions, traveling vaudeville, Ferris wheel, merry-go-round, ocean wave, transient shooting gallery, the exhibition of trained or wild animals or other objects of curiosity, and that of fire sale merchants. The constitutionality of the law, so far as its general scheme is concerned, was sustained in the case of Servonitz v. State, 133 Wis. 231, 113 N. W. 277, 126 Am. St. Rep. 955. Judging merely from the title of the act, it would seem to be an exercise of the police power alone; but, in view of the amount of license fee required to be paid the state and of the per diem fees which may be imposed by municipalities, it seems that its purpose was a dual one, namely, to regulate the trades and occupations mentioned under the exercise of the police power, and to impose a reasonable tax upon such occupations and trades. It is evident, however, that the purpose of the Legislature was to regulate and tax, not to prohibit or destroy, the occupations to which the law related. Hence the delegation of power to the municipalities of the state to exact per diem fees did not include the power to prohibit or destroy the callings or occupations which they were empowered to regulate and tax.

[2] Section 5 of the act provides, among other things, that each transient merchant “shall * * * also pay to the treasurer of any...