City of Monroe v. Endelman , 150 Wis. 621 ( 1912 )

ViNjn, J.

Cb. 490, Laws of 1905 (secs. 1570 — 1584;", Stats.: Supp. 1906), is entitled “An act relating to hawkers and peddlers and various other occupations.” Among tbe occupations therein mentioned is that of transient merchants,, circuses, and exhibitions, traveling vaudeville, ferris wheel), merry-go-round, ocean wave, transient shooting gallery, tbe exhibition of trained or wild animals or other objects of curiosity,, and that of fire-sale merchants. Tbe constitutionality of the law, so far as its general scheme is concerned, was sustained in tbe case of Servonitz v. State, 133 Wis. 231, 113 N. W. 277. Judging merely from tbe title of the act, it would seem to be an exercise of tbe police power alone, but in view of the-amount of license fee required to be paid tbe state and of the-per diem fees which may be imposed by municipalities, it-seems that its purpose was a dual one, namely, to regulate tbe trades and occupations mentioned under tbe exercise of the-police power and to impose a reasonable tax upon such occupations and trades. It is evident, however, that tbe purpose of tbe legislature was to regulate and tax, not to prohibit or destroy, tbe occupations to which the law related. Hence tbe delegation of power to the municipalities of tbe state to exact per diem fees did not include tbe power to prohibit or destroy tbe callings or occupations which they were empowered to regulate and tax.

Sec. 5 of tbe act (sec. 1514, Stats.: Supp. 1906) provides, among other things, that each transient merchant “shall . . . also pay to the treasurer, of any city or village where he may be conducting his business, a sum not to exceed twenty-five dollars per day for each day that he may be engaged in carrying on his business, such amount to be determined by ordinance or resolution of such city or village.” This language must be held to be a limitation upon the maximum amount that can be demanded to be paid in any city under any circumstances, and not to be a delegation of authority to every city and village to impose tbe maximum amount, as is claimed by the plaintiff. Tbe legislature was well aware of tbe fact that the cities and villages within the state varied greatly as to population, and that the value of carrying on the business of a transient merchant in any village or city depended quite largely on tbe number of inhabitants of such village or city. It is unreasonable, therefore, to suppose that tbe legislature intended that the smallest village in tbe state could lawfully fix and demand a tax equal in amount to that which the largest city in tbe state could impose. Such a construction of tbe law would enable most cities and villages to entirely suppress and prohibit the lawful callings that were intended by the legislature to be merely regulated and taxed. Tbe naming of a maximum per diem fee did not absolve villages and cities from the duty of fixing reasonable per diem fees, taking into consideration the size of the village or city in which the business was to be conducted, and perhaps the nature and extent of tbe business of the transient merchant. Hence, the act must be construed to delegate to cities and villages tbe authority to exact reasonable per diem, fees, which fees must in. no ease exceed, the sum of $25 per day. Such a construction of the' language quoted above harmonizes it with the evident intent and purpose of the act and places the law safely within the constitutional limits of legislative power.

- The delegation of legislative power to subordinate political divisions of the state is solely for public purposes, and, when the scope and purpose of such delegated power is manifest, it must be exercised within the limits and for the purposes disclosed in the act delegating it. Le Feber v. West Allis, 119 Wis. 608, 97 N. W. 203.

This brings us to a consideration of the reasonableness of the ordinance. Unquestionably the discretion vested in the municipal authorities of fixing the per diem fee must be controlling as long as it is exercised within the delegated limits and purposes. But courts may inquire into the extent of those limits and purposes, and, if it be found that they have been manifestly exceeded by a municipal act, declare such act invalid on the ground that it is in excess of the authority granted. This leaves municipal discretion supreme within the field and for the purposes granted. Judicial control only restrains it within its legitimate boundaries. It does not supplant, limit, or modify it within such boundaries. That courts have uniformly exercised such power in this and other states may be seen by reference to the case of Le Feber v. West Allis, 119 Wis. 608, and cases cited on page 613 (97 N. W. 203).

The ordinance in question must be held to be void on the ground that it is confiscatory. It requires no argument to demonstrate that it is so. A mere statement of the material facts is sufficient. The defendant carried a stock of merchandise of a value not exceeding $3,000. He was offering this for sale at retail in a city containing 4,500 inhabitants. His daily sales averaged only $88. His gross profits were twenty per cent, of his sales, and his daily expenses about $7. Tbe $25 per diem fee would alone more than consume his gross profits. Tested in another way, it appears that if he continued in business in Monroe for a year he would pay in fees over $7,500 on a stock of merchandise the average value of which did not exceed $3,000. Obviously such a tax would confiscate defendant’s whole property long before the year expired. Similar ordinances have invariably been held to be confiscatory and therefore void. Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837; Ottumwa v. Zekind, 95 Iowa, 622, 64 N. W. 646; Chaddock v. Day, 75 Mich. 527, 42 N. W. 977; Brooks v. Mangan, 86 Mich. 576, 49 N. W. 633; Peoria v. Gugenheim, 61 Ill. App. 374; Sipe v. Murphy, 49 Ohio St. 536; Ex parte Eaglesfield, 180 Fed. 558.

It is true that cases may be found in which it has been held that a calling or business may be entirely prohibited by the imposition of such a tax or regulatory fee as is sufficient to prevent the business from being carried on with profit, but such cases relate to businesses or callings that are more or less injurious to society and which, therefore, may be entirely suppressed by means of license fees or regulations. The business of the defendant was a lawful one, not injurious but beneficial to society, and does not fall under the class just mentioned where prohibitory ordinances have been upheld.

By the Court. — Judgment affirmed.