City of Ottumwa v. Zekind

• Decision Date: 14 October 1895
• Citation: 95 Iowa 622,64 N.W. 646
• Parties: CITY OF OTTUMWA v. ZEKIND.
• Court: Iowa Supreme Court

95 Iowa 622

64 N.W. 646

CITY OF OTTUMWA

v.ZEKIND.

Supreme Court of Iowa.

Oct. 14, 1895.

Appeal from district court, Wapello county; F. W. Eichelberger, Judge.

Defendant was convicted, under a city ordinance, of selling goods, as a transient merchant, without having paid the license fee required, and he appeals. Reversed.Steck & Smith, for appellant.

W. W. Epps, City Sol., for appellee.

DEEMER, J.

The ordinance under which defendant was convicted reads as follows:

“Section 1. Transient merchants selling, or in any manner offering for sale any goods, wares or merchandise, within the city of Ottumwa, Iowa, at auction or private sale, shall pay $250 per month as a license therefor, or $25 per day, if such license is issued for short period.

Sec. 2. Any transient merchant selling either at public auction or private sale, whether holding auctioneer's license or not, shall be deemed a transient merchant.

Sec. 3. Any person required by this ordinance to procure a license and failing to do so shall be fined in any sum not less than $5, nor more than $50 and costs. Any person continuing business under an expired license shall pay a like fine and costs, and all persons so convicted and fined shall be imprisoned until the fine and costs are paid or until discharged by due course of law.”

This ordinance was enacted in virtue of the power conferred upon cities of the first class by section 621, McClain's Code (section 462, Code 1873), which is as follows:

“They shall have power to regulate and license sales by auctioneers and transient merchants within their corporate limits, provided, that the exercise of the power shall not interfere with sales made by sheriffs, constables, coroners, marshals, executors, guardians, assignees of insolvent debtors or bankrupts, or other persons, required by law to sell real or personal property.”

The case was tried in the lower court upon an agreed statement of facts, the substance of which was that on December 15, 1894, one B. E. Myers shipped to the city of Ottumwa, from Marshalltown, a stock of ready-made clothing, and placed the same in a store building on one of the main business streets, where he offered it for sale. Defendant was an employé of Myers, and, as such, made sales from said stock at retail, in the usual course of trade. Defendant was also manager of the business. It was the intention that the business should be carried on only for such length of time as was required to sell the stock, which was valued at $6,000. Myers and Zekind are residents of Marshalltown, and neither has paid the license required by the ordinance before quoted. It is also agreed that no resident merchant of the city of Ottumwa is required, by any ordinance of the city, to pay a license. The power of the legislature to delegate to a municipality the right to regulate and license auctioneers and transient merchants is not denied. But it is insisted that the ordinance is invalid for the following reasons: (1) Because it discriminates in favor of resident merchants of the city of Ottumwa, and against nonresident merchants. (2) Because it discriminates in favor of one class of merchants, and against another class, engaged in the same business. (3) Because it imposes a license which is unreasonable, unjust, and oppressive. (4) Because it is indefinite and uncertain as to the persons intended to be included in the words “transient merchants.”

1. With reference to the first objection insisted upon, it is sufficient to say that the ordinance does not, in terms, discriminate in favor of resident merchants of the city of Ottumwa. It requires a license fee from all transient merchants, no matter where they reside, and imposes a penalty upon the resident, should he become a trancient merchant. We do not understand that the term “transient merchant” has reference to the residence of the individual. It more properly relates to the character of the business carried on by him. In the case of Town of Pacific Junction v. Dyer, 64 Iowa, 38, 19 N. W. 862, relied upon by appellant, the ordinanceheld to be invalid defined a transient merchant to be “every non-resident person, who shall sell exchange or dispose of any goods, wares or merchandise of his own or of other non-resident owners.” This ordinance was declared to be unconstitutional because it discriminated in favor of resident merchants of Pacific Junction, and against other resident merchants of Iowa. In the case at bar no such discrimination appears on the face of the ordinance, and the fact that no resident merchants are required by the city to pay a license is not controlling.

2. It is said, however, that, if the words “transient merchant” should be held to include resident merchants of the city of Ottumwa who might temporarily engage in business, the ordinance is unconstitutional, because it is not uniform in its operation, and because it grants to certain citizens, or classes of citizens, privileges or immunities which do not belong equally to all. This objection is not tenable. The ordinance makes no exceptions in favor of or against any one carrying on the business. All transient merchants must pay the fee before engaging in the business. Under numerous decisions of this and other courts, it is uniform in its operation, and is not class legislation. See Land Co. v. Soper, 39 Iowa, 112;McAunich v. Railroad Co., 20 Iowa, 338;City of Mt. Pleasant v. Clutch, 6 Iowa, 546.

3. It is contended that a license fee of $250 per month, or $25 per day for a short period of time, exacted from transient merchants is prohibitory, unreasonable, and unjust, and is a manifest exercise of the taxing power, rather than a police measure. The statute confers upon the municipality the power to “regulate and license auctioneers and transient merchants,” and we are required to determine what may be exacted by the corporation as a fee for permission to carry on business as a transient merchant. A license must be distinguished from a tax. The power to tax is one of the highest attributes of sovereignty, and, if delegated by the legislature to the municipality, such delegation must be in express terms, or by necessary implication, and cannot be implied from such general authority of power as “to license and regulate.” City of Burlington v. Putnam Ins. Co., 31 Iowa, 103; State v. Herod, 29 Iowa, 123;City of Burlington v. Bumgardner, 42 Iowa, 673;State v. Smith, 31 Iowa, 493; Cooley, Tax'n (1st Ed.) p. 387; Clark v. Davenport, 14 Iowa, 494;City of...