Erwin v. City of Omaha

• Decision Date: 05 April 1929
• Docket Number: 26504
• Citation: 224 N.W. 692,118 Neb. 331
• Parties: O. E. ERWIN, APPELLANT, v. CITY OF OMAHA ET AL., APPELLEES
• Court: Nebraska Supreme Court

224 N.W. 692

118 Neb. 331

O. E. ERWIN, APPELLANT, v. CITY OF OMAHA ET AL., APPELLEES

No. 26504

Supreme Court of Nebraska

April 5, 1929

APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

" Rolling store," as involved herein, defined in opinion.

Under sections 3489 and 3496, Comp. St. 1922, a metropolitan city may, by ordinance, define " peddlers" and include in such term a " rolling store," and impose on applicants for permits to operate such stores a permit fee and an occupation tax, and provide penalty for operating a " rolling store" upon its streets without first having obtained the permit and paid the occupation tax.

By such permit the applicant is granted an extraordinary use, a tolerated use, of the streets.

In such case the city may, under a regulatory ordinance, impose a tax which of itself would serve a restrictive purpose.

" Classification is a legislative question, subject to judicial revision only so far as to see that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones used for the purpose of evading the constitutional prohibition." Seabolt v Commissioners of Northumberland County, 187 Pa. 318, 41 A. 22.

" The amount of an occupation tax is not to be measured by the profits of the business taxed, but should be considered as one incident to local self-government, and when thus considered it appears prima facie reasonable in amount, courts of justice should not declare the ordinance void, unless and until it is clearly shown by competent evidence that the license charge is in fact unreasonable or confiscatory." City of Grand Island v. Postal Telegraph Cable Co., 92 Neb. 253, 138 N.W. 169.

Appeal from District Court, Douglas County; Hastings, Judge.

Suit by O. E. Erwin against the City of Omaha and others. Judgment for defendants, and plaintiff appeals. Affirmed.

George Evens, for appellant.

John F. Moriarty and Shotwell & Ready, contra.

Heard before GOSS, C. J., ROSE, GOOD, THOMPSON and DAY, JJ., and BLACKLEDGE and REDICK, District Judges.

OPINION

THOMPSON, J.

In this suit Erwin, appellant, owner and operator of what is known as a "rolling store," in the city of Omaha, was denied an injunction prohibiting the enforcement by appellees of ordinance No. 12811 enacted by the city council of such city. To reverse this judgment Erwin appeals, and contends, among other things, that the court erred in not finding the ordinance unconstitutional and void for the reason that the occupation tax exacted is unreasonable, arbitrary, discriminatory, prohibitory and confiscatory, and intentionally designed to entirely prohibit operation of a "rolling store" such as he desires to operate. It might be well to describe briefly the "rolling store" here involved; it being the first of its kind ever attempted to be operated in the city. It is a miniature store, stocked with all kinds of merchandise usually carried in a grocery store, placed on an automobile truck chassis, so that the store can be moved from house to house, and the merchandise sold therefrom the same as it would be sold from a store at a fixed location. The vehicle in question is about 16 feet long by 6 feet wide, and has an aisle down the center for the use of customers. The scheme of the business is to give purchasers cash and carry prices at their doors.

It is admitted that the ordinance was legally passed and approved; that it provides, in substance, that persons operating rolling stores in the city of Omaha are "peddlers," and shall first procure a permit and pay therefor a fee in the sum of $ 10 a month, and pay in addition thereto an occupation tax in the sum of $ 15 a day, "provided the payment of such tax ($ 15 a day) at the end of each month rather than in advance may be secured by bond with approved sureties in double the amount of such tax per month, conditioned for the payment of such tax at the end of the month;" and further provides that any person who fails to pay the tax when due shall be liable to a fine of not less than $ 5 nor more than $ 50, and the court may commit to jail any person against whom such fine shall be assessed until the fine is paid. A penalty is also imposed for failure to obtain the permit. Erwin, notwithstanding the provisions of such ordinance, and with full knowledge thereof, began operating a rolling store on the streets of such city without procuring a permit therefor and paying the occupation tax imposed, was arrested, found guilty and sentenced, to reverse which judgment he appealed to the district court, where such appeal is still pending. He then instituted this action.

The term "peddling" is defined in section 2 of the ordinance as follows: "The going about in the city from house to house, or from place to place, over and through the streets and public places of the city, and selling or offering to sell at retail, and forthwith to deliver, any goods, wares and merchandise of whatever kind, nature and character, * * * either from wagons, carts or vehicles of any character or from packs carried upon the person, or otherwise transported. Any person peddling, as hereinabove defined, shall be known and termed as a 'peddler' for the uses and purposes of this ordinance. Peddlers using or employing wagons, carts or vehicles of any kind and character and carrying on any such business as defined (in this section) are hereby classified as peddlers operating a rolling store, and shall be subject to the provisions of this ordinance relating to the operation of such store."

The occupation tax heretofore indicated, however, is limited to those operating a "rolling store" as in this case; the others are charged simply a permit fee which varies in amount as it is applied to the things carried and the means of transporting same.

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