Wittenberg v. Mutton
| Citation | 280 P.2d 359,203 Or. 438 |
| Parties | Ralph S. WITTENBERG, Bessie A. Wittenberg, Marylou Wittenberg, Clayton L. Davidson, and Dorothy W. Davidson, d/b/a Grandma Cookie Co., Appellants, v. W. M. MUTTON, Mayor of the City of St. Helens, Oregon; Richard E. Singleton, Recorder of the City of St. Helens, Oregon, and Warren M. Forsyth, Marshal and Chief and Police of the City of St. Helens, Oregon, Respondents. |
| Decision Date | 23 February 1955 |
| Court | Oregon Supreme Court |
Wilber Henderson, Portland, for appellants.
Marshall C. Hjelte, St. Helens, for respondents.
Before TOOZE, Acting Chief Justice, and ROSSMAN, LUSK, BRAND, LATOURETTE and PERRY, JJ.
The city of St. Helens, pursuant to the authorization of the city charter, which provided as follows:
passed an ordinance, the portions thereof material to the issue before us being as follows:
'An ordinance providing for licenses upon trades, shops, occupations, professions, businesses and callings for the purpose of revenue and regulation; providing for the method of issuing licenses; providing penalties for violations thereof; and repealing Ordinance No. 1063 and Ordinance No. 1226.
'The City of St. Helens Does Ordain As Follows:
'* * *
'(b) As used in this ordinance, 'business' means professions, trades, occupations, shops and all and every kind of calling carried on for profit or livelihood.
'* * *
'(a) This ordinance is enacted, except as hereinafter otherwise specified, to provide revenue for municipal purposes and to provide revenue to pay for the necessary expenses required to issue the license for and regulate the business licensed.
'* * *
'* * *
'* * *
'Bakeries ..... $15.00 annually
'* * *
'(f) Producers of farm products raised in Oregon, produced by themselves or their immediate families, shall not be subject to license fees prescribed herein that may apply to the selling of such products in the City of St. Helens, Oregon by themselves or their immediate families.'
The plaintiffs, having refused to pay the required license fee as set out in the ordinance, and being threatened with arrest, brought this suit to restrain the defendants from proceeding further with their complaint or citation, and to perpetually enjoin the city from seeking to collect the license fee on the ground that the ordinance providing therefor is invalid. A demurrer to the plaintiffs' complaint having been sustained by the trial court, the plaintiffs have appealed.
The plaintiffs' complaint alleges that they are partners engaged in the business of manufacturing cookies and other bakery goods, with their principal place of business in the city of Portland, and for 'several years last past have effected periodic deliveries, usually not oftener than once a week, of its products to retail merchants of the City of St. Helens, Oregon, by a one-ton motor truck licensed to and operated by plaintiffs and their agents and employees; that said truck is propelled through the use of motor vehicle fuel, and it is operated over regular routes; that the quantity of products that plaintiffs deliver to the retail merchants as aforesaid is determined by the needs or the requirements of such merchants made known to plaintiffs' drivers or representatives at the time the deliveries are made; that in some instances the retail merchants make periodic payments to plaintiffs at their Portland office, covering the aggregate amount due for deliveries theretofore made over an indefinite period of time; that in other instances drivers of plaintiffs collect from the retail merchants the sales price at the time the deliveries are made; that all motor trucks used and operated by plaintiffs in effecting such deliveries are duly licensed and registered under the laws of the State of Oregon, and all drivers of such trucks are duly licensed and registered drivers under the laws of the State of Oregon, and plaintiffs are licensed by the State of Oregon to operate and sell their products from motor vehicle delivery trucks; that the use of said trucks is essential to, and the trucks are an indispensable part of the operation of plaintiffs in making the deliveries as aforesaid; that plaintiffs in operating said trucks, and in handling the cookies and bakery products sold and distributed by them, have and do comply with all federal and state laws and rules and regulations promulgated in respect thereof, and said plaintiffs are licensed to make distribution by motor vehicle of its products in pursuance of Title 48, Chapter 1, O.C.L.A., as Amended'.
The plaintiffs' first assignment of error is that 'The Court erred in sustaining the Demurrer to appellants' Complaint, for the reason that Ordinance No. 1241 of the City of St. Helens, insofar as it imposes a license tax on the operation of motor vehicles for delivery purposes without making provision that such revenue shall be used exclusively for the building and maintaining of roads, is unconstitutional by reason of Section 3, Article IX, of the Constitution of the State of Oregon.'
Section 3, Article IX, of the Constitution of the State of Oregon, insofar as it is material, reads as follows:
'* * * the proceeds from any tax or excise levied on the ownership, operation or use of motor vehicles shall, after providing for the cost of administration and any refunds or credits authorized by law, be used exclusively for the construction, * * * maintenance * * * and policing of public highways, roads and streets within the state of Oregon * * *.'
The plaintiffs' contention being that the ordinance places a tax upon the operation and use of a motor vehicle, which right to tax rests exclusively in the state; and further, the revenue derived therefrom is being used to carry on the general expenses of the municipal corporation, not for the 'construction, maintenance or policing' of the streets as provided by Section 3, Article IX, of the Constitution.
It must be noted that the provisions of the city's charter and of the ordinance speak clearly of licensing and taxing for regulation and revenue, businesses, professions, trades and occupations, not motor vehicles. It seems, therefore, quite clear that the expressed purpose of the charter amendment and the ordinance based thereon was the licensing and taxing of the various businesses, professions and trades carried on within the city and to include therein those who were not residents, but who came into the city via motor vehicle for the express purpose of conducting their business upon the streets of the city. The purpose of the tax as expressed is for revenue to be derived from the privilege of carrying on certain businesses, and is to cover not only those certain businesses having a fixed location within the city, but also those same businesses having a fixed location beyond the boundaries of the city who carried on their business within the city, not from a permanent location, but from a motor vehicle.
It is evident, therefore, the tax is not...
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...with respect to the operation of any motor vehicle upon any public highway in this state") (alteration omitted); Wittenberg v. Mutton , 203 Or. 438, 280 P.2d 359, 362 (1955) (provision applied to "proceeds from any tax or excise levied on the ownership, operation or use of motor vehicles").......
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