Park City v. Daniels

• Decision Date: 04 August 1915
• Docket Number: 2753
• Court: Utah Supreme Court
• Parties: PARK CITY v. DANIELS

149 P. 1094

46 Utah 554

PARK CITY v. DANIELS

No. 2753

Supreme Court of Utah

August 4, 1915

Appeal from District Court, Third District; Hon. F. C. Loofbourow Judge.

Clifford Daniels was convicted in the Justice's Court of peddling without a license, contrary to ordinance.

Judgment of conviction entered on appeal to the District Court. Defendant appeals.

REVERSED and REMANDED, with directions.

Stockman and Horace H. Smith, for appellant.

APPELLANT'S POINTS.

An ordinance passed under the police power is not subject to the same test of equality or uniformity that is required of a revenue measure. The ordinance in question cannot be justified as a police regulation and as it makes an arbitrary and illegal distinction between the persons and things to which it relates, it cannot be sustained as a revenue measure. (State v. Bayer, 34 Utah 257, 97 P. 129, 19 L. R. A. N. S. 297; State ex rel. Mudeking v. Parr., 123 N.W. 408, 109 Minn. 147; Jewel Tea Co. v. Lee's Summit, 189 F. 280; State ex rel. Wyatt v Ashbrook, 154 Mo. 351, 48 L. R. A. 270; State v Wright, 53 Ore. 344, 100 P. 296, 21 L. R. A. N. S. 349; Gray, Limitations on Taxing Power, 1408, 1438.) Classification for license tax purposes must be based upon some reasonable ground of difference, and the license imposed must operate uniformly upon all who are "engaged in the same business in the same territory and under the same conditions." No reasonable ground of difference exists for imposing a license tax of $ 100 a year, payable in advance, upon a person selling teas, coffees, spices and extracts, and the imposing of a lesser amount upon other occupations, without reference to any difference in the nature of the business or the character or amount of goods sold. (Salt Lake City v. Utah Light & Ry. Co., 45 Utah 50, 142 P. 1067; State v. Wright, 53 Ore. 344, 100 P. 296, 21 L. R. A. (N. S.) 349; Siciliano v. Neptune Township, 83 A. 865, 83 N. J. Law 158; State ex rel. Mudeking v. Parr, supra.) A license cannot be required to permit a person to carry on a lawful and harmless calling which he has the natural and inalienable right to pursue. (Mathews v. Jensen, 21 Utah 207, 61 P. 303.) A municipality cannot discriminate in favor of local merchants by singling out and arbitrarily taxing the sale of certain articles in a certain manner. (State v. Bayer, supra; Allport v. Murphy, 116 N.W. 1070, 153 Mich. 486; Hewson v. Englewood, 55 N. J. Law 522, 27 A. 904, 21 L. R. A. 736; State v. Wells, 69 N.H. 424, 48 L. R. A. 99, 45 A. 143; Iowa City v. Glassman, 136 N.W. 901, 155 Iowa 671; State ex rel. Mudeking v. Parr, supra.) The tax imposed is an interference with and a burden upon interstate commerce. The act of soliciting orders for a nonresident principal is not subject to tax as a local privilege. (Robbins v. Shelby Co. Taxing Dist., 120 U.S. 489, 30 L.Ed. 694; Asher v. Texas, 128 U.S. 129, 32 L.Ed. 368; McCall v. California, 136 U.S. 104, 38 L.Ed. 391; Brennan v. Titusville, 153 U.S. 289, 38 L.Ed. 719; Caldwell v. North Carolina, 187 U.S. 622, 47 L.Ed. 336; Rearick v. Pennsylvania, 203 U.S. 507, 51 L.Ed. 295; Dozier v. Alabama, 218 U.S. 124, 54 L.Ed. 965; Crenshaw v. Arkansas, 227 U.S. 389, 57 L.Ed. 565; Stewart v. Michigan, 232 U.S. 665, 58 L.Ed. 786; Jewel Tea Co. v. Lee's Summit, 189 F. 280; Grand Union Tea Co. v. Evans, et al., 216 F. 791.)

Evans, Evans and Folland for respondent.

RESPONDENT'S POINTS.

In reviewing questions involving the reasonableness of the rate imposed upon a certain occupation or business, the court ought not, merely by making comparisons between the rate charged in the particular case and those fixed for other lines of business, presume that the particular rate is excessive, merely by reason of such comparisons; but the presumption should be, and under the authorities it undoubtedly is, that a license is presumed to be reasonable unless the contrary appears on the face of the ordinance itself, or is established by proper evidence. (Van Ballen v. People, 40 Mich. 258; Ogden City v. Crossman, 17 Utah 66; Southern Car, etc., Co. v. State, 133 Ala. 624; 32 So. 235; John Rap & Son v. Kiel (Cal.), 115 P. 651; Kinsley v. Chicago, 124 Ill. 359; 16 N.E. 260; Burlington v. Putnam Ins. Co., 31 Iowa 102; In re Martin, 62 Kan. 638; 64 P. 43; Mason v. Lancaster, 4 Bush. (Ky.) 406; Mason v. Cumberland, 92 Md. 451; 48 A. 136, People v. Grant, 157 Mich. 24; 121 N.W. 300; St. Paul v. Colter, 12 Minn. 41; 90 Am. Dec. 278; Springfield v. Jacobs, 101 Mo.App. 339; 73 S.W. 1097.)

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The defendant Daniels, hereinafter called "appellant," in May, 1913, was charged in the justice court of Park City, Summit County, Utah, with having, within the corporate limits of said city, "willfully and unlawfully engaged in the business or occupation of selling, offering for sale, soliciting and taking orders for goods, wares and merchandise, teas, coffees, spices and extracts without first having taken out and obtained a license," contrary to the ordinances of said city. The particular sections of the ordinance relied on were pleaded. The appellant was convicted in the justice court and appealed from that judgment to the District Court of Summit County, where he was again convicted. He appeals to this court under article 8, section 9, of our Constitution, which permits an appeal to this court from judgments rendered in justice courts only when "the validity or constitutionality of a statute" is assailed. This court has held, however, that the term "statute" includes municipal ordinances. The only question we can consider, therefore, is the validity of the ordinance in question.

One ground upon which the ordinance is assailed is that it is discriminatory; that is, that it does not affect all of the same class alike. The particular part of the ordinance in question reads as follows:

"Licenses to peddle, sell, offer for sale, barter or exchange, to canvass, solicit or take orders for any goods, wares or merchandise, garden, farm or dairy products, fruit, eggs, poultry, fish or game, at retail, may be issued upon payment in advance of the following sums: (a) To peddle, sell, offer for sale, barter or exchange, to canvass or solicit, or to take orders for any fresh meat, or any goods, wares or merchandise, of a general character, or for teas, coffees, spices, extracts, clothing, dresses, knit goods or underwear, either with a team or on foot, one hundred dollars per year. (b) To peddle, sell, offer for sale, barter or exchange, or to canvass, solicit or take orders for any or all kinds of fruit, vegetables, farm or dairy products, fish or poultry, without or with a team or vehicle to deliver the same, seven dollars and fifty cents per quarter. (c) To peddle, sell, offer for sale, barter or exchange, or to canvass, solicit or take orders for any literature, music, small articles for household use or ornament, manufactured in whole or in part by the person so peddling, selling, offering for sale or soliciting or taking orders for such article, seven dollars per quarter or three dollars per month."

Appellant was convicted of having violated the provisions of the ordinance contained in the subdivision marked "a." There are also taxes imposed on other occupations and business as follows: On all stocks of merchandise of $ 20,000 or over there was a quarterly tax of thirty dollars; on all stocks of merchandise of the value of $ 5,000 and under $ 20,000, fifteen dollars; on all stocks of merchandise of the value of $ 1,000 and less than $ 5,000, seven dollars and fifty cents; and upon all stocks of merchandise of less than $ 1,000, four dollars, payable quarterly. There were also license taxes imposed on other occupations, but those are not material here.

It will be observed that subdivision "a," under which appellant was convicted, includes all who sell, offer for sale, or take orders for "fresh meat, or any goods wares or merchandise of a general character, or for teas, coffees, spices, extracts, clothing, dresses, knit goods or underwear, either with a team or on foot." These are taxed at the rate of one hundred dollars a year payable in advance. It will also be noticed that each and every one of the foregoing articles are not only perfectly harmless, but are such as are used in all households, and therefore cannot require special police protection or regulation. The same may be said with regard to the articles mentioned in subdivisions "b" and "c," with the exception, perhaps, that the articles mentioned in those two subdivisions, or at least some of them, are not in such constant demand or use as are those in subdivision "a." There is, however, no apparent reason why a person should be required to pay one hundred dollars a year in advance for the right to sell or solicit orders for "fresh meat," while he may sell all kinds of fish, poultry, and farm and dairy products for seven dollars and fifty cents a quarter payable quarterly. Again, why should one person be required to pay one hundred dollars a year in advance for selling tea and...