*1 gоod appealing failing get respondents petition in court on expenses incurring the incident judgment rendered and refute, thereto, confirm rather than absent et ex- cetera —tend to diligence in circumstances, finding prose- ceptional of a want exceptional no cuting Appellant directs our attention to the action. in the instant case. circumstance Westhues, judgment Cooley CG., affirmed. concur. by Bohling, foregoing opinion C., adopted
PER CURIAM: The judges as the All concur.. court. City Richmond, Municipal Corporation;
Clarence Fettеr v. Baker, Collector; and Haynes, Mayor; Charlene Carl Armour, City Marshal, 6. Appellants. Charles Two, July Division
A. S. Penniston appellants. *2 respondent. T. and Lawson &
Frazor Edmonson Hale
433 filed Circuit Fetter this suit Respondent WESTHUES, C. and Missouri, enjoin of Richimond Ray County, a license imposеd which enforcing a ordinance license its officers year $100 per day, per month fee of violated the the ordinance asserted that petition Respondent his Constitution; seсtion of the States United fourteenth amendment Constitution. of article the State article defend prayed for. The granted relief The trial vests being involved this appealed. A constitutional ants appellate jurisdiction. court with unreasonable,
Respondent contends that discriminatory, therefore violation confiscatory prohibitive, Appellants mentioned. provisions constitutional above *3 business follows: respondent’s the as their brief described That agreed facts, and the show: “The of evidence statement selling engaged business of breаds and regularly Plaintiff was in the Missouri; Richmond; bakery products at that these other retail Baking bought by Company, the products plaintiff’s are from Manor daily; Missouri, that City, and delivered to him fresh of Kansаs are delivery receipt same, equipment and upon plaintiff of loads his goods regu- a bakery sell and over proceeds to and deliver said bread larly he route in the of Richmond which covers established day except Sunday; that every plaintiff’s of week method of each substantially doing business That he will call at is as follows to-wit: attracting group every day of same of houses the attention the the by by knock, approaches a that he the occupant whistle or when his front door he a basket or other container loaded with vаrious carries stock, he items his that and there items for sale then offers said occupant to housewife retail and if or said at the decides housewife purchase her to makе a the item is to from the basket delivered and payment given her eiedit at same That or the time. of taken some daily purchases, at places plaintiff the which calls make оthers- make only purchases. plaintiff may occasional or That add to off strike may necessary the stops some of he makes he deem it to the best stops regardless of his That made interest business. are of whether request stop there is a for the or not.
“Plaintiff’s route books introduced evidence as Defendants’ B, A, C, show, according summary exhibits the same, and to оf the by agreed council, the on of Plaintiff’s volume business the per- centage of order; his that on actual business was these route books engaged actually also indicate that Plаintiff was in the business year, a deposition more than and Plaintiff’s indicated that the business ’ ’ years. had been carried on in manner for same several im general ordinance license awаs The ordinance carried on within the occupations tax on the various posing a license following an is The a measure. be revenue city. It conceded to was comрared occupations as imposed on other of the amounts illustration $20; year agents per tea dealers peddlers: with Coffee $10; year per year $10; peddlers wholesаle, per ice bakeries, retail or $250; bread day $25, per year year $10; per hawkers merchants city of the having within place a of business wagons and not trucks the that year mayor the testified Eichmond, per The of $50. merchants. protecting local passed purpose for the of ordinance in fact not if it were itself would invalidate the That in the St. discriminatory A ordinance was before prohibitive. or similar Reed, City Washington v. of Appeals case of the Louis an ordinance invalid In that the court held 70 S. W. case held that per day a The court imposed which tax of businesses, tax on other $4, compared when with the license the tax provision of the an amount violate showed such as to the excessive uniformity. 10, in Constitution, respect to Missouri article void. prohibitive and therefore held the ordinance Airway failure In was arrested for peddler that case Cleaners obtain a The court in course of the said: license. ease, being defend- “In the instant the article that was sold according testimony, very value, and, to the ants was of substantial bought highly pleased with persons who claimed to be article workings. barely handling possible persons its It that similar might operate of such substantial value able to under the articles be day tax, extremely doubtful, clearly peddlers it licensе but undertaking value, pins, to sell smaller articles of nominal such as *4 buttons, strings, neckties, toys, ornaments, knives, shoe or pencils, handicraft, absolutely articles own by of their would be deterred high аttempting ply reason of the license fee fixed from their to business city in Washington.” the of
In us, certainly the case before a tax of a per year $100 would be heavy burden on the peddling business of bread products. and similar a population 4,000 5,000. city Eichmond has of between The Washington 6,000. of has a population ruling of about If the Appeals Washington Court of in the correct, case is then the ordinance question in here must be declared void is prohibitive. because it As by pointed Appeals, city out the of a indirectly cannot do directly. city what it cannot do a And since prohibit peddling cannot power it has a levy prohibitive no occupation. to tax on that This is supported J., numerous authorities. In 37 page 192, C. 42, the rule is thus stated: “In general accordance with prohibitory as to legis rules lation, regard licenses, in to if a high license fee or tax is so as to be virtually confiscatory prohibitive legitimate or оf a useful and occu-
435 few, aof for the benefit monopoly or to create a privilege, or pation applies where invalid; and this rule is imposing’it act or ordinance tbe Pac. Tea Atl. & Co. Great revenue.” also imposed for tax the is [See 47, 4 Atl. 122 N. L. Camden, J. City of of Board of Comrs. et al. v. 592; Supp. 611, 261 Y. 145 N. Dugan Zorn, v. Misc. 16; Bros. (2d) Baking v. Co. 36;Me. Haller Brown, 713, 135 188 Atl. v. State Borough v. 108; 501, Atl. Shannon Roсhester, Super. 118 Pa. of 1174; Ex Mihlfread (2d) parte Co., 530, 109 Hughes Ky. & Mayor, Corp. v. Linen 347; Service Or.), 83 S. W. National (Tex. City Wilber of Laundry Co. v. 837; Speier’s (Ga.), etc. 179 S. E. 269 N. W. (Neb.), 119.] mayor city of follows: The the testified as money their “Q. you local merchants have And feel like the city the buildings and that in their
invested here town and have the outsiders high enough against ought levy council to a license fee your might proteсt them local peddle, that want to out keep to right.” A. merchants? That’s business, compared plaintiff’s
The amount of the tax levied on above occupations, mayor’s with other thе evidence. The supports cases rule that such an ordinance is void.
Appellants to do cite cases other which tend some States support their contention that amount the tax not excessive. the of is beginning page These cases will be found the annotations at bearing 39 A. L. R. The a question, size of the has on the reading when kept the cases that must be mind. Thе statutes city. must granted also be consulted with power reference to the to a For example, appellants Collier, cite the case of O’Hara v. 173 Mich. day which'sustained рer year a tax city, however, The having authority regulate addition to to and tax occupation the power prohibit also city, had to peddling. A under statute, our has power to make reasonable classifications of the occupations. various There no doubt peddlers, hawkers, etc., is that may charged greater be sum than having regular merchants рlace pay who ad business an valorem tax in addition to the license tax. The city right has regulate to the business of peddling, and regulatory reasonable may imposed. conditions be The ordinance did attempt regulate the business. It purely effect, a revenue measure. apparent It is that the of the ordinance was to stifle prohibit or peddling. mayor testified that that was its purpose. When that the main purpose void, as said in the R., annotations of 39 A. L. pages 1385 and 1386 : *5 “And an impose authorization to fees purposes for the of revenue will nоt warrant prohibitory exaction of fees.” We need pass on whether the authorities properly clas- plaintiff sified peddler. affirmed. trial of the judgment stated the reason For thе CC., Bohling, concur.
Cooley C., is Westhues, foregoing opinion PER CURIAM: The judges concur. All the court. as the adopted Railway Company, Terminal v. Kansas Quinn Eubank C. 19. Appellant. Corporation, Two, July 1940.* Division Opinion September Term, 1939, May 4, filed at 1940; *NOTE: ap- pellant’s rehearing motion filed; or to transfer to Court en Banc motion May Term, 1940, July 3, overruled at