In this suit Erwin, appellant, owner and operator of what is known as a “rolling store,” in the city of Omaha, was denied an injunction prohibiting the enforcement by appellees of ordinance No. 12811 enacted by the city council of such city. To reverse this judgment Erwin appeals, and contends, among other things, that the court erred in not finding the ordinance unconstitutional and void for the reason that the oсcupation tax exacted is unreasonable, arbitrary, discriminatory, prohibitory and confiscatory, and intentionally designed to entirely prohibit operation of a “rolling store” such as he desirеs to operate. It might be well to describe briefly the “rolling store” here involved; it being the first of its kind ever attempted to be operated in the city. It is a miniature store, stocked with all kinds of merchandise usuаlly carried in a grocery store, placed on an automobile truck chassis, so that the store can be moved from house to house, and the merchandise sold therefrom the same as it would bе sold from a store at a fixed location. The vehicle in question is about 16 feet long by 6 feet wide, and has an aisle down the center for the use of customers. The scheme of the business is to give purchasers cash and carry prices at their doors.
It is admitted that the ordinance was legally passed and approved; that it provides, in substance, that persons operating rolling stores in the city of Omaha are “ped
The term “peddling” is defined in section 2 of the ordinance as follows: “The going about in the сity from, house.’ to house, or from place to place, over and through the-, streets and public places of the city, and selling or offering to sell at retail, and forthwith to deliver, any goods-,, wares and merchandise of whatever kind, nature and; character, * * * either from wagons, carts or vehicles of' any character or from packs carried upon the person, or otherwise trаnsported. Any person peddling, as herein-above defined, shall be known and termed as a ‘peddler’ for the uses and purposes of this ordinance. Peddlers using or employing wagons, carts- or vehicles of any kind, and character and carrying on any such business as defined (in this section) are hereby classified as peddlers; operating a rolling store, and shall be subject to the provisions of this ordinance relating to the operation of such; store.”
The occupation tax heretofore indicated, however, is,
Section 3489, Comp. St: 1922, here involved, gives and grants unto metropolitan cities the following powers, among others: By ordinance to “levy any tax or special assessment authorized by law and to appropriate money and provide for the payment of the debts and expenses of the city. * * * To care for and control * * * streets, avenues, parks and squares within the city. * * * To regulate the transportation of articles through the streets, and to prevent injuries to the streets from overloaded vehicles.”
Section 3496 provides: “The council shall have power to tax for revenue, license and regulate * * * peddlers; * * * such tax may include both a tax for revenue and license. The city council shall have power to raise revenue by levying and collecting a tax on any occupation or business within the limits of the city and regulate the same by ordinance.”
In State v. Omaha & C. B. Street R. Co.,
Is this ordinance vulnerable to thе challenges interposed? It is not an unreasonable classification to place what is known as “rolling stores” in the category of “peddling,” for in fact operators of such stores are peddlers,
As to the extent of the fee and tax: Under the ordinance in question the privilege extends to all the streets and alleys in the city, is without restriction as to locality, time when used, size of vehicles, number of permits for which one person might aрply, or the number of persons to whom permits would be granted if application was made therefor, except as restricted by such imposed fee and tax. With such a situation confronting the offiсers of the city, they might with propriety, under a regulatory ordinance, impose a tax which of itself would serve a restrictive purpose. As well said in 37 C. J. 192, 193:
“The rule that the license fee can cover оnly the expense of issuing the license and regulating the business does not apply to those occupations or privileges which, although tolerated, are hurtful to public morals, productive of disorder, or injurious to the public. In such case fees or taxes may be imposed in such sums as to have a restraining or repressive effect, or even to prohibit the occupation or privilege.” Ftirther, “As to occupations or privileges which are in their general effect injurious or offensive to the public welfare, fees or taxes that are practically prohibitive may be imposed.”
The law as announced in the above quotations will be found sustained by the following cases: Village of Minneota v. Martin,
Thus we conclude that, while the ordinance on its face’
It yet remains to be determined whether or not, as a matter of fact under the evidence adduced, the tax imposed is unreasоnable or prohibitive. In Littlefield v. State,
Applying the rules thus announcеd to the evidence before us, and considering the case as one here for determination de novo, the finding of the trial court that “the license tax of $15 a day on plaintiffs rolling store is more than the reasonably to be expected profits per day of conducting said store and will naturally prevent the conducting of said business upon defendant city’s streets,” is not sustained. The test revealed by the evidence, to wit, oper
Thus it will be seen that, while we agree with the conclusion of the learned trial judge to the effect that the petition is without equity, we do so without approving certain of his findings.
Affirmed.