Ex parte Dickison

• Decision Date: 18 September 1928
• Docket Number: Case Number: 18510
• Citation: 1928 OK 538,280 P. 797,138 Okla. 266
• Parties: Ex parte DICKISON.
• Court: Oklahoma Supreme Court

1928 OK 538

280 P. 797

138 Okla. 266

Ex parte DICKISON.

Case Number: 18510

Supreme Court of Oklahoma

Decided: September 18, 1928

Syllabus

¶0 1. Licenses--Statutory Authority for City to Enact Ordinance Levying Occupation Taxes for Revenue Taxes.

By section 4556, C. O. S. 1921, a city is expressly granted power to enact ordinances levying and for the purpose of collecting a license tax upon specified occupations. Such ordinances are authorized for the purpose of revenue as distinguished from license fees collected on account of necessary police regulation.

2. Same--Constitutional Provision.

Section 4556, C. O. S. 1921, is a general law enacted by the Legislature under authority of section 20, art. 10, of the Constitution of Oklahoma, which provides: "The Legislature shall not impose taxes for the purpose of any county, city, town or other municipal corporation, but may, by general law, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes."

3. Same--Statutes--General Statute not Affected by Subsequent Unconstitutional Statutes Providing Exemptions from Occupation Tax.

Chapter 75, S. L. 1927, amendatory of chapter 136 S. L. 1923, and section 8320, C. O. S. 1921, providing for exceptions and immunities from the payment of special taxes on occupations, being treated as unconstitutional and void, as discriminatory and based upon an unreasonable classification and violative of article 5, sec. 51, Const. of Oklahoma, yet such exemption enactments, being void ab initio, did not serve to amend the general statute, section 4556, C. O. S. 1921, theretofore existing authorizing the occupational tax.

4. Same--Discriminatory Enforcement of Ordinance--Insufficient Showing.

Held, the manner of enforcement of ordinance 3057 of Oklahoma City is not shown to have been so arbitrary and discriminatory as to warrant equitable relief.

Original action by Lou Dickison for writ of habeas corpus. Writ denied.

P. E. Gumm, for petitioner.

Malcolm W. McKenzie and Bliss Kelly, for respondent.

RILEY, J.

¶1 Lou Dickison, petitioner, was restrained of his liberty by M. C. Binion, chief of police of Oklahoma City, because of nonpayment of a fine and cost assessed against him in the municipal court of Oklahoma City, based upon violation of Ordinance 2740, as amended by ordinance 3057, of said city.

¶2 Section 1 of ordinance 2740 reads as follows:

"There is hereby levied a license tax on the callings, trades, businesses, avocations and occupations hereinafter named, in the following sums respectively set opposite the name of such calling, trade, business, avocation or occupation, to wit: * * * Huckster 6 mo., $ 30.00."

¶3 Section 2 defines the terms "hawking," "peddling," and "canvassing."

¶4 Section 3 provides a penalty for every person "violating any provision of this ordinance," and fixes the amount of the fine or imprisonment to be assessed upon conviction.

¶5 Section 4 fixes the emergency clause.

¶6 Ordinance 3057 amends section 3 of ordinance 2740 by omission of reference to imprisonment and by limiting the amount of cost to be assessed to $ 1.

¶7 Petitioner bases his petition upon three grounds as follows:

First, because he has been unfairly and unreasonably discriminated against by the state and by Oklahoma City allowing certain rights and privileges to needy or disabled ex-service persons and the widows of ex-service persons contrary to the provisions of section 51, art. 5, of the Constitution of Oklahoma, and section 7, art. 2, of the Bill of Rights, and section 1 of 14th Amendment to the Constitution of the United States.

Second, because the legislative body of the city had no authority to enact said ordinance No. 2740 and ordinance No. 3070; and

Third, because the said ordinance No. 2740 does not provide or make it unlawful to engage in the occupation of a huckster without paying the tax or obtaining a license.

¶8 We consider the second ground for the obvious reason that unless there existed authority for the enactment of the ordinances our labors are at an end. We hold that the ordinances presented are revenue-raising measures as distinguished from regulatory enactments under police power, for no word or phrase of the measure attempts to regulate or control, whereas the sum assessed for the license discloses the purpose to be for revenue. Ex parte Mayes, 64 Okla. 260, 167 P. 749; Royall v. State of Va., 116 U.S. 572, 6 S. Ct. 510, 29 L. Ed. 735.

¶9 In the latter case it was said:

"That the party complying with the statutory conditions is entitled as of right to the license is conclusive that the payment is a tax laid for revenue, and not an exaction for purposes of regulation. * * * The occupation, which is the subject of the license, is lawful in itself, and is only prohibited for the purpose of the license; that is to say, prohibited in order to compel the taking out a license, and the license is required only as a convenient method of assessing and collecting the tax."

¶10 Section 4556, C. O. S. 1921, was construed in Ex parte Mayes, supra.

"Neither section 581, R. L. 1910, nor the city ordinance for the violation of which the petitioner was convicted, contemplates the regulation or control of the business or traffic of transporting passengers for hire within and over the streets and public places of the city, but, on the other hand, provide for a license tax for revenue, as distinguished from a license fee collected on account of necessary regulation."

¶11 It is probable that, in the absence of any grant of power from the sovereignty, the city would have authority under police power to enact regulatory ordinances, restricted as it would be, as to the amount of license fee to be charged, to the cost of issuance and regulation. Ex parte Simmons, 5 Okla. Crim. 399; 115 P. 380; State v. City of Billings (Mont.) 255 P. 11; Ex parte Bachman, 20 Okla. 78, 201 P. 537. But the ordinances under consideration, as we analyze them, are not regulatory, but for revenue. From whence comes the authority for such enactments. The answer is, from section 4556, C. O. S. 1921, wherein express authority is given by the statute "to levy and collect a license tax upon various exhibitions, professions and avocations, including therein merchants of all kinds," and to make more certain that it is not regulation but revenue which is authorized, the section closes with a proviso as follows: "Provided, however, that all scientific and literary lectures * * * shall be exempt from such taxation." Ex parte Mayes, supra.

¶12 Such was the construction placed upon the statute prior to its adoption by the state from whence it came. Fretwell v. City of Troy, 18 Kan. 271. It is presumed that the statute was adopted in view of the construction theretofore placed upon it. City of Lyons v. Cooper, (Kan.) 18 P. 296.

¶13 Therefore, we hold that the enactments under consideration were within the power and authority of the city by virtue of the grant of power. Moreover, the act, section 4556, supra, was within the discretion of the Legislature, for by section 20, art. 10 (Wms. 285), Const. of Oklahoma, it is provided:

"The Legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may, by general law, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes." West v. City of Mt. Sterling (Ky.) 65 S.W. 120; City of Carlisle v. Hechinger & Co., 103 Ky. 381, 45 S.W. 358.

¶14 Section 4556, supra, in fact, was a general law conferring authority such as was exercised by enactment of the ordinances here considered.

¶15 We may consider some expressions of this court upon this subject-matter. City of Tulsa v. Metropolitan Jewelry Co., 74 Okla. 107, 176 P. 956. That cause turned upon the provision of the city charter which prohibited the levying of an occupational tax for general revenue purposes.

¶16 Mitchell v. City of Lawton, 124 Okla. 60, 253 P. 999, expressly holds that the city "had the power to levy and collect a license tax on auctioneers for the purpose of revenue (section 4556, C. O. S. 1921). It also had authority to levy a license tax for the purpose of regulating the business of auctioneering as an exercise of the police power." That opinion held the ordinance to be "a police regulation and not a revenue measure." And being merely regulatory, "the license fee charged must not exceed the expense of issuing the license and regulating the business." Since the ordinance there considered did exceed such cost, it was held void. The writer did not concur in that opinion, for the reason that it seemed illogical to strike down the ordinance for being revenue raising when authority to enact such measures existed, even though the measure be considered regulatory as authorized under the police power. Is there any reason why the ordinance could not be conceived by a union of police power and specifically granted revenue powers, and live as a revenue raising as well as a regulatory enactment?

¶17 Gundling v. Chicago, 177 U.S. 183, 44 L. Ed. 725, 37, 20 S. Ct. 633 C. J. 168, holds in the affirmative where it says:

"The amount of the fee is fixed by the common council for the privilege of doing business, and the text of the ordinance and the amount of the fee therein named would seem to indicate that it is both a means adopted for the easier regulation of the business and a tax in the nature of an excise imposed upon the privilege of doing it. In either case the state has power to make the exaction, and its exercise by the city under state authority violates no provision of the federal Constitution."

¶18 There the contention was that the ordinance was void as being an unreasonable exercise of police power by imposing a license fee of $ 100, a sum greater than the expense of issuing the license and providing the regulation. The text of that ordinance showed it to be regulatory, while the amount charged manifestly stamped it as a revenue raising measure....