Matheny v. City of Hutchinson

• Decision Date: 24 January 1942
• Docket Number: 35377.
• Citation: 121 P.2d 227,154 Kan. 682
• Parties: MATHENY v. CITY OF HUTCHINSON.
• Court: Kansas Supreme Court

121 P.2d 227

154 Kan. 682

MATHENY v. CITY OF HUTCHINSON.

No. 35377.

Supreme Court of Kansas

January 24, 1942

Syllabus by the Court.

An ordinance imposing a so-called license tax on vending machines, and providing that no machine shall be set up before owner makes application for permission to operate machine and pays tax specified imposes a "license tax" within city's "police power" to regulate the operation of business and occupations in city and does not impose an "occupation tax" in excess of city's authority. Gen.St.1935, 13-910.

An ordinance imposing a license tax of $5 per year per machine for vending machines requiring more than five cents is not invalid as bearing no relation to the "public welfare" as applied to cigarette vending machines, in view of statute forbidding sale of cigarettes to minors and evidence that cigarette vending machines require special police protection and supervision. Gen.St.1935, 13-910.

An ordinance imposing a license tax will not be held invalid unless it appears that it is unjust and unreasonable in the amount of the tax imposed or that the city flagrantly abused its discretion in enacting it.

Evidence supported trial court's conclusion that an ordinance imposing a license tax of $5 per year per machine for vending machines requiring more than five cents did not impose an unreasonable fee as applied to cigarette vending machines.

An ordinance imposing a license tax on vending machines including cigarette vending machines is not invalid as discriminatory because it regulates the sale of cigarettes by vending machines and does not license or regulate the retail selling of cigarettes by any other means than by machines. Const.Kan.Bill of Rights, §§ 2, 18; art. 12, § 5; U.S.C.A.Const. Amends. 14, 15.

A city may differentiate between classes when levying a license tax as long as the tax is levied equally and without discrimination on all businesses or avocations exercising the same privileges within each class. Gen.St.1935, 13-910; Const.Kan.Bill of Rights, §§ 2, 18; art. 12, § 5; U.S.C.A.Const. Amends. 14, 15.

An ordinance imposing a license tax on vending machines including cigarette vending machines and providing that the tax should apply only to operators having four or more machines is invalid as making an "arbitrary classification" and as not applying alike to all persons operating cigarette vending machines. Gen.St.1935, 13-910; Const.Kan.Bill of Rights, §§ 2, 18; art. 12, § 5; U.S.C.A.Const. Amends. 14, 15.

1. In an action to enjoin the enforcement of a city ordinance, the record is examined and it is held that the ordinance in question levied a license tax and not an occupation tax.

2. In an action such as that described in the first paragraph of this syllabus, the ordinance in question placed a tax of five dollars per year upon the right to operate vending machines requiring more than five cents per machine--it is held that the plaintiff did not sustain the burden of (a) establishing that this ordinance did not bear any relation to the public welfare of the city and (b) that the ordinance was unreasonable as to the amount of the tax.

3. In an action such as that described, the ordinance in question provided that it should only apply to operators of four or more machines; held, that this was an arbitrary classification and so discriminatory as to render the ordinance invalid.

Appeal from District Court, Reno County; F. B. Hettinger, Judge.

Action by H. R. Matheny against the City of Hutchinson to enjoin the enforcement of an ordinance. From a judgment for defendant plaintiff appeals.

Reversed.

HARVEY and THIELE, JJ., dissenting in part.

Ray H Tinder, of Wichita, for appellant.

J Richards Hunter and Eugene A. White, both of Hutchinson, for appellee.

SMITH Justice.

This was an action to enjoin the enforcement of a city ordinance. Judgment was for the defendant. Plaintiff appeals.

The petition of the plaintiff alleged that he was engaged in the business of the retail sale of cigarettes by means of cigarette vending machines; that in the year 1939 he produced a net profit, inclusive of the amount of city license tax, of $1,186.80 and paid as a commission to the merchants of Hutchinson $2,547.65 and a property tax of $150; that his business needed no city or police inspection, regulation or supervision to preserve good order and that if any such was needed it would be of a minor detail and expense. The petition then alleged that on the third day of January, 1940 the governing body of the city of Hutchinson passed ordinance No. 2634 purporting to be a license tax ordinance; that this amended section 2 of ordinance No. 2385, which has been amended by ordinance No. 2444. Copies of these ordinances were attached to the petition and it was alleged that unless restrained the defendant would prosecute the plaintiff by arrests and imprisonment and fine on account of a violation of these ordinances. The petition then alleged that these ordinances were unjust and unreasonable and not a bona fide attempt on the part of the defendants to regulate plaintiff's business; that they were contrary to the fourteenth and fifteenth amendment to the constitution of the United States and contrary to the provisions of section 5 of article 12 of the constitution and sections 2 and 18 of the bill of rights of the constitution of Kansas and in violation of G.S.1935, 13-910; that they were void because they discriminated between businesses in the city of Hutchinson and were an attempt to levy an occupation tax under the guise of a pretended license tax and the city had no power to levy such a tax; that the ordinances were void because they were not within the police power of the city and deprived plaintiff of personal rights and liberties without due process of law and were passed with the intent to prohibit the lawful sale of cigarettes through vending machines and that the plaintiff had no adequate remedy at law. As the ordinance, the enforcement of which the plaintiff seeks to enjoin, was finally amended, it reads as follows:

"An ordinance repealing ordinance No. 1882 approved November 22nd, 1927 and levying license or occupational tax on all vending machines, providing for the collection of said tax and providing penalties for the violation thereof.

"Be It Ordained By The Mayor And Commissioners Of The City of Hutchinson:

"Section 1. 'That Ordinance No. 1882, approved November 22nd, 1927, be and the same is hereby repealed.'

"Section 2. 'That there shall be a license tax levied and required of every person, firm, partnership or corporation who shall set up, maintain, operate, own, or own and operate merchandise vending machines or weighing machines in the City of Hutchinson, Kansas. Such a person shall be known as an Operator and said fee shall be in the following amount:

"'For machines requiring five cents (5¢), or less, per Operator per year $15.00.

"'For machines requiring more than five cents (5¢), per machine per year $5.00.

"'Provided, however, that the above fees shall apply only to Operators having four or more machines; vending the same merchandise and provided further, that in determining said number of machines only those shall be considered which shall be in use during some portion of the calendar year for which any such license as provided for herein shall be issued.'

"Section 3. Repealed.

"Section 4. 'That before any person, firm or corporation shall set up, maintain, or operate any merchandise vending machines of any kind or nature in the City of Hutchinson, Kansas, the owner or agent of the owner of said machine or machines shall make application to the City Clerk of the City of Hutchinson, Kansas, for a permit to operate such machines, and shall pay the tax specified therefor; and that no license shall be issued for less than one year, and licenses shall not be transferable from one owner to a subsequent purchaser.

"'That the owner, agent of the owner, or operator of said machine or machines shall at all times give and advise the Chief of Police of the City of Hutchinson, Kansas, the address and location of all said merchandise vending machines while being operated in the City of Hutchinson, Kansas. That it shall be unlawful for any person, firm, or corporation to permit or allow any merchandise vending machines to be placed or operated anywhere within the corporate limits of the City of Hutchinson, Kansas, until the said owner, agent of the owner, or operator shall have paid the license specified by this ordinance to the City Clerk of the City of Hutchinson, Kansas; and shall have notified the Chief of Police of said City of Hutchinson, Kansas, of the address of the said machine or machines.'

"Section 5. 'That any merchandise vending machine found by the police department to be in operation within the City of Hutchinson, without its location being reported to the City Clerk or which is being operated by an operator who has not paid the tax provided herein, shall be immediately taken into possession of the said police department and confiscated as the police court may direct.

"'Any person, firm or corporation violating any of the terms of this Ordinance shall be guilty of misdemeanor, and on conviction shall pay a fine of not less than Twenty-Five Dollars or more than Five Hundred Dollars."'

For answer to plaintiff's petition the defendant alleged that the ordinances were regularly adopted, denied that they levied an occupation tax but alleged that they did levy a license tax as an incident to the regulation of the business and by authority of G.S.1935, 13-910 and denied that they intended to operate to prohibit any lawful occupation or to deny or deprive the plaintiff of any personal rights. The answer further...