Ex parte Marler

• Decision Date: 08 October 1929
• Docket Number: 19849.
• Citation: 282 P. 353,140 Okla. 194,1929 OK 407
• Parties: Ex parte MARLER.
• Court: Oklahoma Supreme Court

282 P. 353

140 Okla. 194, 1929 OK 407

Ex parte MARLER.

No. 19849.

Supreme Court of Oklahoma

October 8, 1929

Rehearing Denied Nov. 26, 1929.

Syllabus by the Court.

Section 4556, C. O. S. 1921, empowers municipal authorities to impose a license tax for revenue, as distinguished from a license fee collected on account of necessary police regulation.

Ordinances of the city of Shawnee, assessing an occupation tax, for revenue, upon building contractors within said city examined, and held not violative of section 19 article 10, Constitution of Oklahoma, in that said constitutional provision relative to designation of purpose for which a tax is levied has no application to a special tax, but only to annually recurring taxes imposed generally upon the entire property subject thereto.

Ordinance No. 342, as amended, of city of Shawnee, examined, and held not violative of section 14, article 4, charter of Shawnee, as discriminatory, in that a flat rate is taxed all contractors within said city. Held further, said ordinance is not void as being discriminatory, in that it does not apply to all trades and professions, and that it does not levy an equal burden upon each occupation according to the amount invested therein. Held further, said ordinance is not void, for the reason that double taxation may exist thereby. It is not in contravention of section 9692, C. O. S. 1921, limiting expenditures for current expenses in cities to six mills.

When the power conferred by the charter is to "license and regulate" callings and occupations, the question as to whether under such a grant of power the city authorities could exact by ordinance license fees for revenue purposes as distinguished from expenses for regulation and cost of license, is determined by examination of the whole charter and general legislation of the state. From such examination the revenue provision of such ordinance is upheld.

An ordinance providing a fine and imprisonment as a means of forcing a license tax does not trench upon the constitutional inhibition against imprisonment for debt as contained in section 13, article 2, Constitution of Oklahoma, providing "Imprisonment for debt is prohibited, except for the non-payment of fines and penalties imposed for the violation of law."

Original action for writ of habeas corpus by G. L. Marler to obtain relator's release from imprisonment in the city jail in the city of Shawnee. Alternative writ previously granted discharged, and writ denied.

Mason, C.J., and Hunt, J., dissenting.

Park Wyatt, of Shawnee, for petitioner.

F. H. Reily, of Shawnee, for respondent.

RILEY J.

Petitioner seeks release from imprisonment in the city jail in the city of Shawnee. His restraint is the result of his being charged and held in custody pending trial for having violated the provisions of Ordinance No. 342, as amended by Ordinance No. 365, and Ordinance No. 424, of said city, which by article 6 thereof provides for a tax of $25 upon the occupation of a building contractor within said city, and by section 1 thereof prohibits any person from engaging in any occupation, etc., therein enumerated without having paid said city the license tax therein levied, and without having procured a license as provided, and by section 19 thereof provides that violation of any provision of said ordinance is a misdemeanor, and providing a penalty for such violations as therein set forth.

There is no dispute as to the facts. The contention is directed to the constitutionality of the ordinance. The ordinance is admitted to be for revenue purposes as distinguished from regulatory measures enacted under police power of municipalities.

The issue herein presented was in a measure determined in Ex parte Dickison (Okl. Sup.) 280 P. 797, rehearing denied October 1, 1929, yet there are presented some phases not therein considered which we shall decide.

It is urged that the city of Shawnee lacked authority to enact the ordinance levying the tax. The Dickison Case determined that section 4556, C. O. S. 1921, contained in R. L. 1910, as section 581, was a grant of power from the sovereign state to cities, authorizing the levying and collection of a license tax upon specified occupations for revenue purposes, and that such grant of power was in view of section 20, art. 10, Constitution of Oklahoma.

City of Muskogee v. Wilkins, 73 Okl. 192, 175 P. 497, held by paragraph 2 of the syllabus:

"Section 581, Rev. Laws 1910, empowers municipal authorities to impose a license tax for revenue, as distinguished from a license fee collected on account of necessary police regulation."

In Re Unger, 22 Okl. 755, 98 P. 999, 1000, 132 Am. St. Rep. 670, December 2, 1908, this court held: "The authority there delegated [Wilson's Rev. & Ann. St. 1903, Sec. 386] gave the city the power to tax 'contractors."'

Ex parte Phillips, 64 Okl. 276, 167 P. 221, considered that R. L. 1910, § 581, authorized the city of Oklahoma City to levy and collect a license tax on certain occupations (of which the occupation of the petitioner was not one) and a license tax upon omnibusses, carts, wagons, and other vehicles, and that the city enacted an ordinance, pursuant to such grant of power from the state, reiterated in the city charter, levying a license tax of $25 upon each automobile used on the streets of said city for hire, and held that such tax was not an occupation tax on the business of petitioner, but a fee for the use of the streets; as such it was in contravention of section 8, article 4, of the General Highway Law 1915 (Laws 1915, c. 173), and so the ordinance was annulled; the underlying principle being that, as to the levy and collection of such fee for such purpose (use of streets by vehicles upon which auto tax had been paid), the grant of power from the sovereign did not exist.

Section 4556, C. O. S. 1921, specifically provides: "The city council shall have authority to levy and collect a license tax on * * * contractors. * * *"

So, then, in so far as the state is concerned, there exists a sufficient authority for enactment of the ordinance by reason of that grant of power.

The petitioner contends that the ordinance violates section 19, art. 10, of the Constitution, for that the purpose for which the tax is levied is not specified.

That constitutional provision reads as follows: "Every act enacted by the Legislature, and every ordinance and resolution passed by any county, city town, or municipal board or local legislative body, levying a tax shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose."

We hold there is no contravention of the constitutional mandate and inhibition, for as held in McGannon v. State ex rel. Trapp, 33 Okl. 145, 124 P. 1063, Ann. Cas. 1914B, 620, that constitutional provision applies only to annually recurring taxes imposed generally upon the entire property and not the kind of tax with which we are dealing, which is a special tax. As in that case pointed out, concerning the special tax imposed, "it is always uncertain upon whom it will fall and how much revenue it will produce," and consequently it would be impossible to specify the particular object to which the tax should be applied.

Thus far we hold, in so far as the sovereign is concerned, there was authority by reason of the grant of power to enact the ordinance, and further omission in the ordinance of a direction or instruction as to the purpose to which the revenue was to be devoted did not contravene section 19, art. 10, Constitution, for that provision of the Constitution is not applicable to such a tax revenue.

Now it is urged that the ordinance is violative of section 14, art. 4, Charter of City of Shawnee, in that the ordinance is discriminatory by exacting a flat rate as follows: "All building contractors shall be assessed $25.00, per annum."

Whereas it is said the charter "imposed upon the legislative body of the city, the restriction and limitation that ordinances of this character should not be discriminatory, but the amount of the license fee sought to be levied should be proportioned, according to the amount of the investment or the volume of business done."

The proviso contained in section 14, art. 4, of said charter reads: "Provided, that no discrimination shall be made between persons engaged in the same business, otherwise than by making the tax upon any business proportionate to the amount of the business done. * * *"

That proviso restricts, forbids, and inhibits a discrimination in the amount of tax levied upon persons engaged in the same business, but permits, authorizes, and sanctions a different amount of such tax to be imposed upon persons engaged in like business when the tax is based in proportion to the volume of business. The latter part of the proviso is permissive in character, and not a restriction or limitation. The ordinance in question is in compliance with the restriction contained in the first part of the...