Hansen v. Town of Antioch

SHENK, J.

The plaintiff appealed from a judgment sustaining the defendant’s demurrer to the second amended complaint and denying leave to amend.

The complaint shows the following:

The plaintiff is a dealer in fuel oil burners and fuel oil and has his principal places of business in the cities of Livermore, Alameda County, and Martinez, Contra Costa County. He has no fixed or regular place of business in the town of Antioch, but has regular customers in that town whom he agrees to keep supplied with fuel oil. The usual method of supplying fuel to Antioch customers is to check the quantity in their reservoirs and to deliver oil to their supply tanks from the plaintiff's fuel stores maintained at Livermore or Martinez.

[112]

Under section 13 of Ordinance No. 17A of the town of Antioch, as amended, every person who sells merchandise at a fixed place of business is required to pay an annual license tax based on average monthly sales. By subsection 2 of section 14 of the ordinance, it is provided that every person who conducts the business of peddling or “who from place to place offers to or does sell, barter or exchange any goods, wares or merchandise then in his possession in said Town of Antioch” shall pay an annual license tax of $100. The section also provides that “every person who, not having within said town a fixed place of business . . . , travels from place to place and offers to sell, barter or exchange anything then in his possession in said town . . . shall be deemed a peddler within the meaning of the ordinance.” In 1936, on the demand of the municipal authorities for the payment of the license tax pursuant to said section 14, the plaintiff paid the tax under protest, claiming that he was chargeable only with the amount required by section 13 which, in his case, would be the sum of $20. By this action the plaintiff sought the return of the license taxes paid under protest and to have the defendants restrained from enforcing as to him the provisions of said section 14.

It is contended by the plaintiff that he is not a peddler within the meaning of the ordinance and that the provisions thereof make an unreasonable discrimination between him and merchants in said town of Antioch who conduct an identical business in a similar manner.