Moffitt v. City of Pueblo

• Decision Date: 07 July 1913
• Citation: 55 Colo. 112,133 P. 754
• Parties: MOFFITT v. CITY OF PUEBLO.
• Court: Colorado Supreme Court

133 P. 754

55 Colo. 112

MOFFITT v. CITY OF PUEBLO.

Supreme Court of Colorado, En Banc.

July 7, 1913

Error to Pueblo County Court; Frank G. Mirick, Judge.

W Spencer Moffitt was convicted of the violation of an ordinance, and he brings error. Reversed.

Willis Stidger, of Denver, for plaintiff in error.

A. W Arrington, of Pueblo, for defendant in error.

SCOTT J.

The plaintiff in error was convicted in the municipal court of the city of Pueblo for a violation of ordinance No. 847 of that city. Upon appeal to the county court of Pueblo, such conviction was sustained. The only question before us is the validity of the ordinance. This question was raised by demurrer to the complaint and by objection to the introduction of the ordinance in evidence. The grounds of such objection being that the city was without power to enact such an ordinance; that it is in violation of the state and federal Constitutions; and that it is not a valid exercise of the police power and is unreasonable, discriminatory, and void.

Section 1 of the ordinance provided: 'It shall be unlawful for any person or persons, copartnership or corporation to sell or offer to sell as incident to or as a part of their mode of carrying on business, any goods, wares and merchandise or other chattels from any car, warehouse, private house or houses, or any other place or places not kept or directly under his or their control without being duly licensed as herein provided for: Provided that this section of the ordinance shall not apply to peddlers or to licenses of others included within the provisions of ordinance No 781, passed June 7th, 1909, providing a license tax upon transient merchants.' The ordinance provided for a license fee of $200 per month or $25 per day for a period of less than a month.

Ordinance No. 781, to which section 1 of the ordinance complained of refers, in so far as it is important to consider, is as follows: 'That any person or persons, copartnership or corporation who shall keep a store, booth, stand, room or other place and shall vend, offer or expose for sale or retail any goods, wares or merchandise within the city of Pueblo, without being first duly authorized by a license from the city of Pueblo, as hereinafter provided, shall be fined upon conviction in any sum not less than ten dollars, nor more than three hundred dollars, for each offense: Provided, that this ordinance shall not be construed to apply to the sale of goods, wares and merchandise by merchants who pay an annual city tax upon such goods, wares and merchandise assessed according to the revenue laws of this state, nor to the traveling agents who sell samples to regular merchants doing business in the said city of Pueblo, nor to the sale of goods for charitable and nonprofitable purposes.'

The testimony going to the violation of the ordinance is that the plaintiff sells or takes orders for pianos; that he acts in this capacity as the agent of the Robert D. Sharp Music Company; that he sold one piano to one Cantrell in the city of Pueblo in October, 1911, and exchanged this for another in December of the same year. The first piano was examined in a private house. Nothing is said in this respect as to the other one. Moffitt also sold a piano to Mrs. Herman Schluse. He told her this one was in a rooming house. Moffitt's testimony, which is not in conflict with that of other witnesses, is as follows: 'As sales manager I had and have in the city of Pueblo taken orders for pianos to be shipped and that have been shipped directly from the factories to the homes where the pianos have been sold prior to their shipment. At times some of these pianos are left in the cars for a day or so before delivery to the purchaser. They have been kept in warehouses or private houses before being delivered. Sometimes before and sometimes after the contract was signed with the purchaser.' Then what the plaintiff did in alleged violation of the ordinance was to solicit and make sales of pianos as the agent of the Sharp Company of Denver. Neither the agent nor the company kept or maintained a place of business in Pueblo.

The authority of the city in the matter of license or occupation tax is found in section 6550, Rev. Stat. 1908: 'Third. To license, regulate and tax, subject to any law of the state now in force or hereafter to be enacted, any or all lawful occupations, business places, amusements or places of amusements.' This is a general grant of authority, and it is not contended that the ordinance is authorized by any specific or definite legislative authority.

In Phillips v. City of Denver, 19 Colo. 179, 34 P. 902, 41 Am.St.Rep. 203, Mr. Justice Elliott stated the rule in such case to be: 'In determining whether a municipal ordinance is valid, the following distinction is to be observed: An ordinance expressly authorized by specific and definite legislative authority will be upheld unless it conflicts with the Constitution of the state or nation, while an ordinance which the municipality assumes to pass by virtue of its incidental powers, or under a general grant of authority, will be declared invalid, unless it be reasonable fair, and impartial, and not arbitrary or oppressive.' In that case the charter provision considered, in so far as it may affect the case at bar, is very similar to the general statute, and it was contended there as here that the power of the council was absolute, even to the extent of the prohibition of the particular business, but upon that point the court said: 'In our opinion the charter provisions, above quoted, will not bear the construction contended for. The power conferred is not sufficiently specific or definite to warrant such unrestrained municipal legislation affecting private property. ...