City of Sheridan v. Litman

• Decision Date: 02 September 1924
• Docket Number: 1201
• Citation: 32 Wyo. 14,228 P. 628
• Parties: CITY OF SHERIDAN v. LITMAN [*]
• Court: Wyoming Supreme Court

228 P. 628

32 Wyo. 14

CITY OF SHERIDAN v. LITMAN ^[*]

No. 1201

Supreme Court of Wyoming

September 2, 1924

APPEAL from District Court, Sheridan County; JAMES H. BURGESS Judge.

Prosecution by the City of Sheridan against F. Litman, under a municipal ordinance requiring payment of occupation tax; Defendant was convicted in municipal court, and on appeal in the District Court of a violation of an ordinance, and appeals.

Affirmed.

Camplin & Camplin for appellant.

The complaint did not state an offense under the ordinance neither court had jurisdiction, 7340-41 C. S.; the complaint attempted to charge several offenses; it did not charge defendant with being a dealer; ordinance 529 confers official arbitrary power to decide the nature of one's business where it comprises various lines of stock, and is unconstitutional, Art. I, Section 7; State v. Court, 193 P. 845; Yick v. Hopkins, 118 U.S. 356; the ordinance does not conform to the statute, 1949 C. S State v. Sheridan, 25 Wyo. 356; Gray v. Omaha, 114 N.W. 600, 2 Lewis Const. 994; Gunding v. Chicago, 20 S.Ct. 633; there is no authority to levy a different tax on different parts of the same business, McMillan v. City, 202 S.W. 65; the title is defective, Art. III, Section 24; Divet v. Co., 76 N.W. 993; it does not prohibit selling, Scriven v. City, 162 P. 307; City v. Ry. Co., 156 P. 1058; different goods do not constitute two businesses, State v. City, supra, Carney v. Hamilton, 42 So. 378; City v. L. Co., supra; Ex Parte McCoy, 101 P. 425; the City is without authority to levy a tax beyond the current year; levies and appropriations must be made for each year and verified to the County Board, 1824, 2931, 2932, 2933 C. S.; the ordinance violates limitations fixed by the Constitution, Art. XV, Sections 6-13, Art. XIII, Section 3, Const., no tax shall be levied except in pursuance of law, the object to be stated; the ordinance conflicts with 1953 C. S. being a general revenue measure it must conform to other tax laws, Western Union v. City, 81 So. 199; the ordinance attempted to follow 1949 C. S. which confers no power to refund taxes; the tax must be levied on a business and must be certain, fixed and definite; there is no lawful authority to confer discretion on officers to decide the nature of a business made up of several businesses; the ordinance is penal and thereby strictly construed; arbitrary power is prohibited, Art. I, Section 7, Const., the taxing power of municipalities is restricted by the Constitution, Art. XIII, Sec. 3, Art. XV, Secs. 6-13; a tax on the privilege of selling is a tax on the goods sold, Kehrer v. Stewart, 44 S.E. 854; Brown v. Maryland, 12 Wheat 419; Welton v. Missouri, 91 U.S. 275; being a general revenue measure the ordinance is subject to the general restrictions and limitations of the Constitution.

H. Glenn Kinsley for respondent.

The complaint charges an unlawful carrying on of business and selling of goods; the agreed statement of facts waives technical objections to the complaint, Willard v. Wood, 135 U.S. 309; any occupation carried on for a livelihood is a business, Express Co. v. Co., 124 Ga. 581, 5 L. R. A. (NS) 619; a business may comprehend several parts; one cannot attack a privilege tax while admitting some amount due for the privilege, but fails to make a tender, Camas Co. v. Kozer, 104 Ore. 600, 309 P. 95; this is not a property tax, Los Angeles v. Co., 152 Cal. 765, 93 P. 1006; 21 Ency. Pl. of Laws 775; it is not affected by constitutional limitations, People v. Naglee, 1 Cal. 232, 52 Am. Dec. 312; general municipal taxes are levied by Counties, Chap. 181 C. S., an occupation tax is on business and not on property, 29 Cyc. 1346; the amount of the tax is within the discretion of the municipal authorities, McQuillin Vol. 3 Page 2233; the ordinance states the object of the tax to be for general revenue purposes and was enacted pursuant to 1949 C. S., it is a charge for the privilege of carrying on certain business; an ordinance may be passed effective for a specified time only, McQuillin 1453; it is not a property tax; its reasonableness cannot be determined by the extent of the business of the individual; the amount of the tax is reasonable, Bradford v. Jones, (Ky.) 135 S.W. 290; an individual carrying several lines may be taxed for each, Mobile v. Craft, (Ala.) 10 So. 534; State v. Willington, 9 Wyo. 290; City v. Clark, 52 S.E. 881; Express Co. v. Rose, 124 Ga. 581; a municipality must be granted a large discretion in framing regulatory and revenue measures, Wichita Co. v. City, (Kans.) 209 P. 667.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This action was commenced in the municipal court of the City of Sheridan by the City, as plaintiff, against F. Litman, defendant. The complaint charged that on or about October 18, 1922, in said city, the defendant "did unlawfully carry on and conduct the business of selling dry goods, shoes and millinery without first having paid a license tax provided in Ordinance 529 of the City of Sheridan, Wyoming, passed, adopted and approved May 9, 1922."

The trial in the municipal court resulted in the conviction of the defendant, who was fined $ 5. He appealed to the district court, where the case was tried anew on stipulated facts. The district court also found the defendant guilty and assessed the same fine. The defendant brings the case here by appeal.

The ordinance is question is entitled,

"An Ordinance levying an annual license tax for two years from June 1, 1922, to June 1, 1924, for general revenue purposes, on persons, associations of persons, firms and corporations conducting, carrying on, and trafficking in certain trades, professions, occupations and businesses within the limits of the City of Sheridan, and providing for the collection hereof, and providing penalties for the violation hereof."

By section 1 of the ordinance it is provided:

"That there be and is hereby levied an annual license tax for the two years from June 1, 1922, to June 1, 1924, for general revenue purposes, upon all persons, associations of persons, firms and corporations, conducting, carrying on, and trafficking in, within the limits of the City of Sheridan, any of the businesses hereinafter specified, and conducting, carrying on, and trafficking in any of the trades and occupations hereinafter specified, and conducting, carrying on and trafficking in any of the professions hereinafter specified, for the privilege of conducting, carrying on, and trafficking in such businesses, trades, occupations and professions in said city, in the amounts set opposite such respective businesses, trades, occupations and professions, as follows:"

There are then enumerated about 100 occupations, with the amount of the tax for each, including "Dry Goods Dealers, $ 25.00," "Millinery Dealers, $ 15.00," and "Shoe Dealers, $ 25.00."

It is then provided:

"that where any person, association of persons, firm or corporation shall have a business, trade, occupation, or profession in which any of the above enumerated businesses, trades, occupations or professions are combined into one business, then and in that event the said person, association of persons, firm or corporation shall pay the prescribed license tax for each of the businesses, trades, occupations, or professions included in the said combined business; and payment of one license tax shall not relieve any person from paying any other license tax for which he may be liable under this or any other license ordinance of this city."

By section 2 the tax is required to be paid in advance in full for the ensuing year at the office of the City Clerk who, upon payment of the tax, shall issue the license.

Section 6 makes provision for refunding a part of the tax when the business is abandoned before the expiration of the year for which the tax has been paid.

Section 8 provides the penalty for "carrying on, conducting or trafficking in any such trade, occupation, business or profession" without first having paid the license tax.

Section 9 recites that the ordinance is passed pursuant to section 1949, Wyo. Comp. Stat. 1920, for the purpose of raising revenue for the city during the time mentioned.

Other provisions of the ordinance are not material on the questions raised.

It is contended that the complaint was insufficient. The complaint contained no charge in so many words that the defendant was a "dry goods dealer," or a "shoe dealer," or a "millinery dealer," but did charge that he carried on and conducted the business of selling dry goods, shoes and millinery. It may be admitted that a person might sell dry goods or shoes or millinery without being a "dealer" in those goods within the meaning of the ordinance. Here, however, the defendant was charged not only with selling, but with carrying on and conducting the business of selling. We have heretofore recognized the principle that technical nicety in pleading is not required in a complaint for the violation of an ordinance. Stutsman v. Cheyenne, 18 Wyo. 499, 509, 113 P. 322. It would seem, further, that defects in pleadings may be considered waived by the submission of a case on an agreed statement of facts. Brettun v. Fox, 100 Mass. 234; Willard v. Wood, 135 U.S. 309, 314; 10 S.Ct. 831, 34 L.Ed. 210; United States Nat. Bank v. Great Western Sugar Co., 60 Mont. 342, 351, 199 P. 245. It is hardly necessary, however, to invoke these principles to sustain the complaint in the case at bar, for we think it is clear that one who conducts a business of selling dry goods, shoes or millinery is a "dealer" in those goods within the meaning of the ordinance and engaged in a taxed occupation.

The complaint is also challenged for duplicity. It is contended that the...