23 Wash. 71 | Wash. | 1900
The city of New Whatcom, by the terms of the general law under which it is incorporated (Bal. Code, § 938, subd. 10) has power:
“To license, for purposes of regulation and revenue, all and every kind of business, including the sale of intoxicating liquors, authorized by law, and transacted and carried on in such city, and all shows, exhibitions and lawful games carried on therein and within one mile of the corporate limits thereof, to fix the rate of license tax upon the same, and to provide for the collection of the same by stiit or otherwise.”
Acting under the authority thus granted, the city council passed an ordinance providing for licensing auctioneers. Section 6 of the ordinance provides;
“Nó sale of goods, chattels, or personal property at auction (excepting sales made under legal process, and imported live stock, sold for breeding. purposes) within the city of New Whatcom, Washington, shall be made, excepting by an auctioneer or other persons who shall have first obtained from the city a license as hereinbefore provided.”
Section 7:
“There shall be charged for every license granted for the selling of any household goods to be sold at the house where such goods have been in use, the sum of fifteen dollars per quarter or fifty dollars per year, payable in advance; and no license shall be granted for a shorter period than one quarter.”
Section. 8:
“There shall be charged for every license granted for the selling of any stocks of merchandise, or parts thereof, wearing apparel, dress goods, millinery goods, jewelry goods, and other stocks of goods, or parts of stocks of goods, the sum of twenty-five dollars per day, payable in advance; and no such license shall be granted for a shorter period*73 than one day. Every applicant for such license having, or professing to have, a regular auction store or fixed place of business, shall state in his written application the location of such store or place of business.”
Section 10 provides penalties for violations of the ordinance and § 13 repeals all prior ordinances in conflict therewith. Prior to this time the city council had unacted an ordinance fixing the amount to be charged for auctioneer’s licenses at $25 per quarter. In December, 1898, the appellant was engaged in the retail jewelry business in the city of Hew Whatcom, and, being desirous of opening an auction store for the purpose of selling jewelry at auction, engaged the services of one Erank Triplett to act as auctioneer for him, and applied to the proper officers of the city of Hew Whatcom for an auctioneer’s license for one quarter in favor of Triplett, tendering to them the amount of the fee required by the old ordinance. The officers refused to issue the license, on the ground that the amount tendered was insufficient, by the terms of the ordinance in force, to authorize them to issue a license for the time demanded, and threatened to arrest and prosecute Triplett for violation of the ordinance in case he attempted to sell the appellant’s goods at auction without paying a license fee at the rate of twenty-five dollars per day for each day during the time the auction should continue. This action was brought to restrain the threatened arrest and prosecution. Issue was taken on the allegations of fact in the complaint, and upon a trial judgment went in favor of the respondents.
It is the contention of the appellant that the later ordinance is void because the charge exacted as a license fee is (1) unreasonable, oppressive and prohibitory, and (2) not uniform as applied to class.
“It is not to be presumed from the language of the statute that it was the design of the legislature to authorize the passage of ordinances that would be unjust, or (oppressive, or unfair and partial, or in restraint of trade, or in contravention of public policy, or containing special and unwarranted discriminations against property brought into the corporation from other parts of the same state to be sold at auction, or ordinances containing such discriminations against property brought into the corporation from another state for the same purpose, and thus in conflict with the powers of congress to regulate commerce among the several states. And while ordinances subject to such infirmities cannot be deemed to be authorized by the statute, obviously it cannot be held that the municipal body has such authority by virtue of the general incidental power of municipal corporations to enact appropriate by-laws or ordinances.”
So, in Simrall & Co. v. Covington, 90 Ky. 444 (14 S. W. 369, 9 L. R. A. 556, 29 Am. St. Rep. 398) it was said:
“Perhaps the most distinguishing feature of the common law is its regard for the protection and equality of individual right. It is a rule, therefore, that where the by-law of a municipality, enacted under a general grant of power or by virtue of its incidental authority, is unfair and partial in its operation, it will be declared void. It*75 will not be upheld if it be unreasonable and oppressive. It must not contravene common right or the general law of the state, or make unwarranted or special discriminations.”
Under the statute of Iowa authorizing cities of the first class to regulate and license sales within their corporate limits by auctioneers and transient merchants, the city of Ottumwa passed an ordinance fixing the amount of the license fee for transient merchants, whether selling at auction or at private sale, at the rate of $250 per month, or $25 per day, if a license was issued for a shorter period than one month. This ordinance was said by the supreme court of that state to be an abuse of the power conferred, and the ordinance was held invalid; the court saying:
*75 “The municipality, under the authority given it to license, had the right to impose such a charge as would cover, not only the necessary expenses of issuing it, but also the additional labor of officers, and other expenses imposed by the business, but nothing beyond this. * * * It seems to us, in view of the nature of the business licensed, the fact that it was in no manner injurious to the public health or morals, that it was confined to a particular place, and was not of such a nature as to become a nuisance; that it did not require the police supervision, and was in no manner calculated to disturb the peace and quietness of the city — that it is perfectly apparent that the fee exacted in this case was not required as a police regulation, but for the purpose of revenue to the city. It may also have been fixed at this sum to protect, in a measure, the home merchant against the passing one, who otherwise might not be called upon to pay anything to the support of the instrumentalities of government. But such protection, however desirable and just, cannot be afforded under an ordinance passed in virtue of authority given by the state to regulate and license. In passing, we may observe that a comparison of the language used in sections 462 and 468 of the Code clearly demonstrates that the legislature did not intend, by sec-
Can the ordinance be upheld as an exercise of the taxing power ? As has been shown, the statute expressly empowers municipalities of the class to which the city of Eew Whatcom belongs to license for the purpose of revenue as well as of regulation all and every kind of business,
The learned counsel for the appellant made the further contention that, even if there be no express constitutional inhibition against this mode of taxation, or the amount that may be levied thereunder, there is what may be called implied inhibitions of the constitution, which can be invoked to prevent flagrant injustice and palpable wrong, though committed under the guise of a power so wide in extent as the taxing power — such as those which guaranty the individual citizen against willful aggressions on his personal rights, and unlawful confiscations of his property. There seems to be in authority, as well as in reason, support for this contention. Judge Cooley, in his work on Constitutional Limitations, discussing the question of the power of taxation, says:
“Having thus indicated the extent of the taxing power, • it is necessary to add that certain elements are essential in all taxation, and that it will not follow as of course, because the power is so vast, that everything which may be done under pretense of its exercise will leave the citizen without redress, even though there be no conflict with express constitutional inhibitions. Everything that may be done under the name of taxation is not necessarily a tax; and it may happen that an oppressive burden imposed by the government, when it comes to be carefully scrutinized, will prove, instead of a tax, to be an unlawful confiscation of property, unwarranted by any principle of constitutional government.” Cooley, Constitutional Limitations (5th ed.), p. 603.
In his work on Taxation, while speaking more directly to the question, he says:
“If a revenue authority is what seems to be conferred, the extent of the tax, when not limited by the grant itself, must be understood to be left to the judgment and discre*79 tion of the municipal government to be determined in the usual mode in which its legislative authority is exercised; but the grant of authority .to impose fees for purposes of revenue would not warrant their being made so heavy as to be prohibitory, thereby defeating the purpose.” Cooley, Taxation (2d ed.), p. 599.
See, also, cases cited in support of the text; Fretwell v. Troy, 18 Kan. 271, 275. If, however, it be conceded that the courts have power to declare a municipal ordinance levying a license tax on businesses invalid on the ground that the tax imposed is so oppressive and unreasonable as to amount to confiscation, rather than taxation, they will not determine the question by a mere inspection of the amount of the tax imposed. All presumptions and intendments are in favor of the validity of the tax. It will be presumed, in the absence of a contrary showing, that the municipal authorities acted justly and honestly, and not in disregard of the rights of the citizens or property holders of the municipality; that a necessity for the revenue to be derived from the tax exists; that an equally high rate has been levied upon all business and on all property; and, however large the particular tax complained of may appear to be, it will be presumed to be in harmony with all other taxation, and not an unjust or unreasonable discrimination. In other words, the mere amount of the tax does not prove its invalidity. To determine the amount of revenue required by the needs of the municipality, when not limited by constitutional barriers, is within the sole discretion of the legislative authorities, and the courts have no warrant to interfere with that discretion. To quote Chief Justice Marshall., it is “unfit for the judicial department to inquire what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power.”
2. It is insisted that the ordinance is not uniform as applied to class. As has been shown, the main contention of appellant under this head — namely, that the ordinance is invalid because it imposes a burden upon a portion, and not the whole, of a class of merchants — is concluded against him by the case of Fleetwood v. Read, supra. The further objection is, that the discrimination made by the ordinance in the amount of the license fee required of auctioneers for the sale of the goods described in § I and the amount of the fee required for the sale of those described in § 8, is an unlawful discrimination. This could be so only on the theory that the business of selling property at auction is but a single “kind of business” within the meaning of these words as used in the city’s charter. But, conceding this to be correct in principle, we know of no reason why the city council may not classify single kinds of business in accordance with the different character and kind of property sold, and graduate the license tax in any manner that the exercise of a sound discretion dictates.
The judgment is affirmed.
Dunbar, C. J., and Reavis and Anders, JJ., concur.