State v. Klectzen

Decision Date26 April 1899
Citation8 N.D. 286,78 N.W. 984
PartiesSTATE v. KLECTZEN.
CourtNorth Dakota Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. An act of the Sixth legislative assembly (not published officially) entitled “An act taxing the occupation of hawking and peddling, and regulating the licensing of persons engaged in such occupation,” construed, and held to be a measure intended to produce revenue by taxing the occupation of peddling; and held, further, that the same was also intended as a police measure to regulate such occupation.

2. Said statute nowhere states or indicates the objects or purposes of the tax, nor does it declare how the revenue to be derived thereunder is to be applied. Accordingly, held, that the act is repugnant to the provisions of section 175 of the state constitution, and therefore void.

3. Held, further, that it cannot be sustained as a measure of police regulation after the revenue features of the act are eliminated as unconstitutional.

Appeal from district court, Grand Forks county; C. J. Fisk, Judge.

Information against Simon Klectzen for peddling without a license. From a judgment sustaining a demurrer to the information, the state appeals. Affirmed.Ledru Guthrie, for the State. Bosard & Bosard (Templeton & Rex, of counsel), for respondent.

WALLIN, J.

Upon the record in this case, the sole question which is presented for the decision of this court is whether a certain statute is a constitutional and valid enactment. The statute in question was enacted at the late session of the legislative assembly of this state, and is entitled as follows: “An act taxing the occupation of hawking and peddling, and regulating the licensing of persons engaged in such occupation.” The statute contains seven sections, the several provisions of which may be summarized as follows: Section 1 forbids peddling in any county in this state without first obtaining a license so to do from the county auditor. Section 2 requires persons desiring a license to peddle in any county to make a written application to the auditor of such county for a license, and to state “in what manner the applicant desires to travel as a peddler, whether on foot, or with one or more horses or other beasts of burden.” Section 3 is as follows: “Each applicant, before he shall be entitled to such license, shall pay into the county treasury of the county where such application is made, the following sums respectively as and for the taxes due from him on account of the pursuit of the occupation of peddling, to-wit: If for a license to travel on foot the sum of $25; if for a license to travel and carry his goods with a single horse, or other beast carrying or drawing a burden, the sum of $100; if for a license to travel with a vehicle or carriage drawn by two or more horses, or other animals, the sum of $150. Said license shall authorize the holder thereof to pursue within said county the business of hawking and peddling in the manner set forth in said license for the period of one year from the date of its issue, and no longer.” Section 4 requires the auditor, upon filing a written application for such license, together with the treasurer's receipt for the proper fee, to grant a license to peddle in such county for the period of one year, and for no other or shorter period. Section 5 requires the auditor to make a certain record of the transaction. Section 6 imposes criminal penalties for peddling in any county without such license, and the same penalties are prescribed for the offense of refusing, upon request, to produce such license for examination. Section 7 declares that “nothing contained in this article shall be so construed as to impair, interfere with or take away any existing rights or authority of incorporated cities, towns and villages to license and regulate peddlers within their incorporated limits.”

Counsel contend that this statute is unconstitutional as a taxing measure, in this: that it violates section 176 of the state constitution, which provides that “laws shall be passed taxing by uniform rule all property according to its true value in money”; and in support of this point counsel cite the case of Willis v. Oil Co. (Minn.) 52 N. W. 652; also, from the same state, the case of Minces v. Shoenig, 75 N. W. 711. In both of these cases the court was considering a provision of the constitution of the state of Minnesota which is practically the same as section 176 of the constitution of North Dakota. The first case cited arose under a statute which authorized an inspection of illuminating oils, and required that certain inspection fees should be paid by the owner for inspecting the oil. The court upheld this statute as a police regulation, and stated that the law could not be sustained as a taxing measure, because it would run counter to the provision of the constitution of that state “requiring taxes to be as nearly equal as may be and to be levied on a cash valuation.” Const. art. 9, § 1. The fees for inspecting the oil, if regarded as a tax upon the oil, would be a tax which would not be uniform, and one also not based upon the value of the property. In the other Minnesota case (a city ordinance requiring auctioneers to pay a license fee for the privilege of selling certain classes of goods, and in addition to pay a per cent. upon the gross sales of such goods) the court said, in effect, that the requirement to pay a per cent. on the sales was a tax upon the property sold, and was void as a tax, because it was not uniform, and was not based upon any cash valuation; but the other feature of the ordinance was sustained. We regard neither of these cases as being in point, because the statute under consideration nowhere attempts to lay a tax upon property, and from this it follows that constitutional restrictions upon legislation imposing taxes upon property are inapplicable to the statute in question. In our judgment, the act under consideration, in so far as it may be called a tax law, is an occupation tax law, framed to derive revenue from the occupation of peddling, and hence the same is not restricted by the constitutional requirement of valuation and of uniformity. Cooley, Tax'n, 570; 25 Am. & Eng. Enc. Law, p. 480, and notes 2, 3. It is our opinion that this law was enacted to effect a twofold purpose: It seems to be designed both as a revenue measure, and as a means of regulating the occupation of peddling; and in this double aspect the statute is referable both to the police power inherent in the state, and the authority to impose taxes. It is true that many cases can be found holding that subordinate political bodies, which have no original and inherent power of taxation, are without authority to tax an occupation under a charter delegating the right to regulate only; but with the sovereign...

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18 cases
  • Achenbach v. Kincaid
    • United States
    • Idaho Supreme Court
    • 25 Febrero 1914
    ... ... subject of legislation, the act is not open to the objection ... of plurality of subjects." ( State v. Doherty, 3 ... Idaho 384, 29 P. 855; State v. Dolan, 13 Idaho 693, ... 92 P. 995, 14 L. R. A., N. S., 1259; Pioneer Irr. Dist ... v ... ( Divet v. Richland Co., 8 N, D. 65, 76 N.W. 993.) ... Similar titles in the following cases were held to be ... sufficient: State v. Klectzen, 8 N.D. 286, 78 N.W ... 984; Murphy v. Bondshu, 2 Cal.App. 249, 83 P. 278; ... Parks v. State, 159 Ind. 211, 64 N.E. 862, 59 L. R ... A ... ...
  • State ex rel. Linde v. Packard
    • United States
    • North Dakota Supreme Court
    • 10 Diciembre 1915
    ...the object of the same to which only it shall be applied." In State v. Klectzen, 8 N.D. 286, 78 N.W. 984, 18 Am. Crim. Rep. 324, and at page 291 of the state report, it is "All taxes, whether state, county, city or school, are paid into the county treasury; . . . but the disposition to be m......
  • Achenbach v. Kincaid
    • United States
    • Idaho Supreme Court
    • 25 Febrero 1914
  • State ex rel. City of Fargo v. Wetz
    • United States
    • North Dakota Supreme Court
    • 14 Junio 1918
    ...provisions of article 11 of the Constitution as it originally stood, was a tax derived from property uniformly assessed (State v. Klectzen, 8 N. D. 286, 78 N. W. 984), we have no doubt that it was intended that such should be at least the principal source of revenue. The constitutional prov......
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