Minces v. Schoenig

• Decision Date: 09 June 1898
• Citation: 75 N.W. 711,72 Minn. 528
• Parties: MINCES v SCHOENIG.
• Court: Minnesota Supreme Court

72 Minn. 528

75 N.W. 711

MINCESvSCHOENIG.

Supreme Court of Minnesota.

June 9, 1898.

(Syllabus by the Court.)

1. An ordinance of the city of Winona provides for licensing the conductors of “gift, fire and bankrupt sales,” and for taxing them 2 per cent. of the amount of the gross receipts of their sales.

Held: (1) That the provisions for taxation are void, because in conflict with section 1 of article 9 of the constitution of the state; but their invalidity does not affect the validity of the provisions for licensing, the two being severable and independent.

(2) That it is within the police power of the state to require licenses for conducting “gift, fire and bankrupt sales.”

(3) In view of the brief and transient character of such business at any one place, the court cannot hold that $25 per month is an unreasonable license fee.

(4) The city council is not required to grant an applicant a license for a portion of a month at a proportionate part of $25.

2. The ordinance provides that the city council may, in its discretion, direct that a license shall be issued to an applicant who shall pay the required fee. Held, that this must be construed, not as giving the council an arbitrary discretion to discriminate between applicants without good cause or to refuse to grant any licenses in order to destroy or prohibit the business, but merely a reasonable discretion, honestly exercised, to refuse a license where the applicant is an unfit person to whom to issue one, and that, thus construed, this provision of the ordinance is valid.

Appeal from district court, Winona county; Arthur H. Snow, Judge.

Application of H. D. Minces against L. Schoenig, an officer of the city of Winona, for habeas corpus. From an order discharging the writ, plaintiff appeals. Affirmed.

Jas. A. Manly, for appellant.

George T. Simpson, for respondent.

MITCHELL, J.

The petitioner, having been arrested upon a warrant issued upon a complaint for a violation of an ordinance of the city of Winona, entitled “An ordinance to provide for the licensing of conductors of gift, fire and bankrupt sales, to regulate their manner of doing business, and to tax the proceeds of their sales,” sued out of the district court of Winona county a writ of habeas corpus. Upon the hearing, the court remanded the petitioner to the custody of the officer holding the warrant, and he thereupon appealed to this court. The sole question in the case is the validity of the ordinance. By the charter of the city of Winona, the city council is given power “to provide for the licensing of conductors of gift, fire, auction or bankrupt sales and transient merchants to regulate their manner of doing business, and to tax their goods or the proceeds of their sales.” Sp. Laws 1887, c. 5, subc. 4, § 3, subd. 5. The ordinance is not contained in the record, but, as the district court of Winona county is required to take judicial notice of all ordinances of the city of Winona, this court will do so on appeals from that court. The ordinance contains two sets of provisions,-one relating to licensing the conductors of gift, fire, and bankrupt sales, and the other providing for payment by them of a tax of 2 per cent. of the amount of the gross receipts of their sales. This mode of taxation is so palpably in violation of section 1 of article 9 of the constitution, which requires that “all property on which taxes are to be levied shall have a cash valuation,” that it cannot stand for a moment. The legislature itself has no power to adopt any such system of taxation, or to grant authority to a municipality to do so. But the provisions relating to licensing are severable from and independent of those relating to taxation, so that the invalidity of the latter does not render the former invalid. The rule in that regard as to a municipal ordinance is the same as applies to a statute enacted by the legislature. The first section prohibits any one from advertising or conducting a gift, fire, or bankrupt sale without first obtaining a license to do so. The second section provides that any person desiring to advertise or conduct any such sale shall make written application to the city council for a license stating the place where the sale is to be conducted, the kind of merchandise desired to be sold, and the length of time for which he wishes to obtain a license. The third section reads as follows: “The city council may, in its discretion, direct that license be granted and issued to such applicant upon his paying to the city treasurer the sum of $25 for each month for which he shall apply...