State v. Klectzen
| Decision Date | 26 April 1899 |
| Citation | 78 N.W. 984,8 N.D. 286 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Fisk, J.
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 appellant.
The police power of the state can only be exercised by legislative enactment. It rests solely in legislative discretion to determine when the public welfare or safety requires its exercise. A statute regulating trade, when questioned in a judicial tribunal, cannot be made to depend for its validity upon the motives that may be supposed to have influenced the legislature. Tiedeman's Lim. Police Power, § 2; Lakeview v. Rose Hill Cemetery Co., 70 Ill. 192; Toledo Ry. Co. v. Jacksonville, 67 Ill 37; S. C. 16 Am. Rep. 611; Munn v. Illinois, 94 U.S 113; 17 L.Ed. 385. The presumption is that the license fee prescribed by the act is a reasonable one, unless the contrary plainly appears. Cooley's Tax'n, 40 410; Dillon Mun. Corp. (3d Ed.) § 358; Ash v People, 11 Mich. 347; In re Wan Yin, 27 F. 701. The law may be upheld as a tax. State v. Wordin, 56 Conn. 226; Northwestern F. Co. v. Hyde Park, 97 U.S. 659.
Bosard & Bosard, for respondent.
The license fee charged is greatly in excess of the cost of issuing the license, and cannot be sustained as a police regulation. State v. O'Connor, 5 N.D. 629; State v. Glavin, 34 A. 708; City v Spiegel, 75 Mo. 146; Benson v. City, 33 N.J.L. 380; North Hudson Ry. Co. v. City, 41 N.J.L. 71; Muhlenbrinck v. Commissioners, 42 N.J.L. 364; Clark v. New Brunswick, 43 N.J.L. 175; Mayor v. Second Ave. Ry. Co., 32 N.Y. 261; State v. Moore, 18 S.E. 342; Chaddock v. Day, 4 L. R. A. 809; Youngblood v. Sexton, 32 Mich. 419; Chilvers v. Peo. 11 Mich. 43; Littlefield v. State, 28 L. R. A. 588; Willis v. Standard Oil Co., 52 N.W. 652; City v. Nodine, 26 Hun. 512; State v. Wagoner, 69 Minn. 206, 38 L. R. A. 677.
Templeton & Rex, for respondent.
Whatever the power of the legislature may be in regard to raising revenue it cannot under the guise of a license impose a prohibitory or unreasonable fee on the business of peddling. Chaddock v. Day, 75 Mich. 527, 42 N.W. 977; City v. New Haven Water Co., 44 Conn. 105; State v. Moore, 18 S.E. 342. Peddling is not inherently harmful, though an appropriate subject of police regulation. State v. Wagoner, 69 Minn. 206. Such regulation cannot be carried to the point of indirect prohibition. Const. N. D. Sec. 1; Butchers' Union S. H. Co. v. Crescent, etc., Co., 111 U.S. 746; Tiedeman Lim. Pol. Power, 290. The legislature cannot enact an occupation tax. Sec. 176 Const. Where the constitution specifically mentions occupations which may be taxed the right to tax others is denied. Banta v. Chicago, 50 N.E. 233-237. The matter of licensing peddlers is provided for by the constitutions of Nebraska, Virginia and Massachusetts. City v. Ins. Co., 41 N.W. 140; City v. Norfolk, 28 S.E. 959; Connecticut Mut. Ins. Co. v. Com., 133 Mass. 161. A similar constitutional limitation to our own is found in Minnesota. Const. Minn. Art. ix, § I. It has been twice construed. Willis v. Standard Oil Co., 50 Minn. 290, 52 N.W. 652; Minces v. Schoenig, 75 N.W. 711. The law violates section 175 Const. Pittsburg C. & St. L. Ry. Co. v. State, 49 Ohio St. 189, 30 N.E. 435.
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: 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.) 50 Minn. 290, 52 N.W. 652; also, from the same state, the case of Minces v. Schoenig, 72 Minn. 528, 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 state, which possesses plenary power, unless expressly restricted by organic law, both to tax and to regulate, there is no such limitation of authority. Hence it is that laws are sometimes passed to accomplish the double purpose of regulation and revenue. See Kitson v. Mayor, etc., 26 Mich. 325; Cooley, Tax'n (2d Ed.) pp. 570, 597. A license measure may include a taxing measure, or it may not. If its chief purpose is clearly to regulate, and nothing else, it then falls within the police power. In such cases the exaction must not be any greater than is necessary to effect the primary object in view, viz: regulation. Mays v. City of Cincinnati, 1 Ohio St. 268. This rule is well established; but the matter of regulation may embrace more than a mere license fee, and include expenses which are incidental and indirect as well as those...
To continue reading
Request your trial