Grantham v. City of Chickasha
| Decision Date | 16 February 1932 |
| Docket Number | 22609. |
| Citation | 9 P.2d 747,156 Okla. 56,1932 OK 123 |
| Parties | GRANTHAM et al. v. CITY OF CHICKASHA et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 29, 1932.
Syllabus by the Court.
1. Equity will restrain by injunction the enforcement of a municipal ordinance which is void as being unconstitutional and in violation of the statutes of this state, where it appears that valuable property rights are invaded and irreparable injury will result from its enforcement.
2. "An injunction may be granted to enjoin the enforcement of a void judgment, the illegal levy of any tax, charge or assessment, or the collection of any illegal tax, charge or assessment, or any proceeding to enforce the same; and any number of persons whose property is affected by a tax or assessment so levied may unite in the petition filed to obtain such injunction. * * *" Section 420, C. O. S 1921.
3. "Municipal corporations can exercise only such powers of legislation as are given them by the law making power of the state, and grants of such powers are strictly construed against the corporations and when any fairly reasonable doubt exists as to the grant of the power, such doubt is resolved by the courts against the corporation, and the existence of the power is denied." In re Lankford, 72 Okl 40, 178 P. 673.
4. A city council has no power to enact an ordinance exceeding its delegated statutory powers, by making a definition which would include persons or principles not clearly within the terms of the act granting such power.
5. Cities, unless expressly granted authority by statute, cannot prescribe definitions and meaning to words and terms set forth in the statute which are different from their usual ordinary general acceptation, and thereby extend the meaning of such terms, and a court of equity, upon proper and timely application, may be invoked to enjoin the enforcement of void legislation based thereon which would menace and deprive another of valuable contract or property rights.
6. Record examined; held, that the ordinance in question is invalid and void, in that it discriminates in favor of persons, firms, or corporations having an established or fixed place of business, within the city of Chickasha, in violation of article 2, § 2, of the Constitution of the State of Oklahoma, and in that it violates the Fourteenth Amendment to the Constitution of the United States, and article 4, § 2, thereof.
Appeal from District Court, Grady County; Will Linn, Judge.
Action by Roy Grantham and others against the City of Chickasha and others. Judgment in favor of the defendants, and the plaintiffs appeal.
Reversed and cause remanded in accordance with opinion.
Herbert S. French, of Tulsa, Alger Melton, of Chickasha, Harris Danner and John F. Butler, both of Oklahoma City, Mason, Williams & Lynch, of Tulsa, Shirk, Danner & Phelps, of Oklahoma City, and Melton & Melton, of Chickasha, for plaintiffs in error.
J. D. Carmichael, City Attorney, and Barefoot & Carmichael, all of Chickasha, for defendants in error.
This was an action filed in the district court of Grady county, Okl., for an injunction enjoining and restraining the city of Chickasha and its officers from enforcing Ordinance No. 1032 of said city, which sought to levy a license tax on hawkers, peddlers, and itinerant merchants on the grounds that the ordinance was void and unconstitutional and that the enforcement of same would result in irreparable damage to said plaintiffs.
The defendants filed a general demurrer to the petition. The trial court sustained said demurrer, refused to grant an injunction, and dismissed plaintiffs' petition. Plaintiffs have appealed to this court. The parties will be referred to as they appeared in the trial court.
Plaintiffs urge three grounds for reversal of the judgment of the trial court as follows:
1. Said court erred in sustaining the demurrer of the defendants to the petition of plaintiffs.
2. Said court erred in dismissing the petition of plaintiffs.
3. The judgment of the court is contrary to law.
The ordinance, in part, provides as follows: "Ordinance No. 1032.
An ordinance levying a license tax upon hawkers, peddlers and itinerant merchants: making it unlawful to engage in any such business without first having obtained a license therefor; prescribing a penalty and declaring an emergency.
Be it ordained by the mayor and councilmen of the City of Chickasha, Oklahoma:
Section One (1):
That license tax be, and the same is hereby, levied and imposed upon each and every hawker, peddler or itinerant merchant, as follows, to-wit: * * *
For each and every hawker, peddler or itinerant merchant dealing in goods, wares or merchandise of every kind or character, not hereinabove specifically enumerated, the sum of $100.00 per annum. Provided, however, that nothing in this ordinance shall be deemed to impose a license tax for the sale of agricultural or farm produce raised in the State of Oklahoma, where the same is being sold by the person raising or producing the same.
Section Two (2):
It will be observed that section 1 of said ordinance provides a license tax upon each hawker, peddler, or itinerant merchant at different rates based upon the commodity or product dealt in by such persons. Under section 2 thereof, the term "itinerant merchant" is defined in broad and sweeping terms. This ordinance is attacked by the Campbell Baking Company, General Baking Company, Colonial Baking Company, and the drivers of their respective trucks, each of which companies has a manufacturing plant in Oklahoma City, where bread and bakery goods are manufactured by said companies in such quantities as are sufficient to meet the immediate needs and demands of the various communities to which said companies deliver their bakery products. These food products are delivered in trucks of said companies by said drivers and are sold in towns and cities within the trade territory surrounding Oklahoma City, and which includes the city of Chickasha, and are distributed primarily to retail merchants, grocery stores, hotels, and restaurants for resale to the consuming public. The plaintiffs operate these trucks daily except on Sunday, and the ordinance in controversy levies a tax of $100 a year on each of said plaintiffs, and exempts merchants and others doing business in a like manner with plaintiffs, provided they have a fixed store, warehouse, or other place of business within the city of Chickasha. There is no house to house salesman, and the drivers of the trucks usually make the collections.
It is the contention of the plaintiffs, based upon the pleadings, that the ordinance is designed and passed for the purpose of enforcement against business being conducted by those whose place of business is maintained outside of the city of Chickasha, and that it applies to plaintiffs by reason of the fact that they do not have an "established store, warehouse, or other place of business in said City" of Chickasha; that the ordinance is unconstitutional and void; that it is discriminatory; that those who are similarly engaged in the city of Chickasha do not pay any tax under said ordinance; that the enforcement of said ordinance would confiscate and destroy the business of each of said plaintiffs; and that the jurisdiction of a court of equity is invoked to avoid a multiplicity of suits and to prevent irreparable injury to plaintiffs' business.
Section 4556, C. O. S. 1921, provides, in part: * * *"
Counsel for plaintiffs urge that the city of Chickasha cannot extend its power granted to it under section 4556, C. O. S. 1921, by including avocations, trades, or lines of business which are not expressly enumerated therein; that said section of the statute which authorizes the city of Chickasha to levy...
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