Town of St. Helena v. Butterworth

WASTE, C. J.

The plaintiff municipality brought an action against the defendant to collect a license tax, and the penalty for nonpayment thereof, imposed under the terms of a section of the general license ordinance of' the town of St. Helena. The defendant was engaged in the business of selling merchandise at wholesale to merchants of the town. He maintained no fixed place of business in St. Helena, nor was he in the employ of any person maintaining such place of business. He carried his goods into the town and to the merchants in an automobile, or automobile truck, and refused to procure a license for the conduct of his business. The trial court found in favor of the plaintiff, ■and from the judgment rendered the defendant has appealed.

It is not disputed that under the provisions of section 862, subdivision 10, of the Municipal Corporation Act (Stats. 1883, p. 270), the town of St. Helena is authorized to license, for the purpose of revenue and regulation, every kind of business authorized by law and carried on in the town. The sole question presented in the court below and argued here is whether or not section 73a of the general license ordinance of the town is constitutional. It reads as follows: “Every traveling salesman or merchant carrying his goods in a wagon, automobile, truck, or other vehicle operated over and along the streets of the Town of St. Helena, selling his goods at wholesale to the merchants of said town, and who does not maintain a fixed place of business within the said Town, distinct and separate from all other places of business or residence, regularly kept open with a salesman in exclusive attendance therein between the .hours of eight o’clock A. M. and six o’clock P. M. for at least forty-eight hours in each and every week, or who is not in the sole employ of the proprietor of such an established place of business, shall pay a license tax of $15.00 per quarter in advance.” It is provided elsewhere in the ordinance that merchants who have a fixed place of business in St. Helena shall pay a license fee which is determined by the amount of business that such merchants transact during any one quarter year. The ordinance fixes a graduated scale for these merchants, running from five dollars a

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quarter for a merchant whose sales amount to less than fifteen hundred dollars during the period, to fifteen dollars per quarter for merchants whose sales amount to six thousand dollars, and not over nine thousand dollars per quarter. No license is imposed on any merchant, or salesman, doing business with the merchants of the town at wholesale only, whose place of business is outside the limits of St. Helena, but who makes deliveries in any other manner than by personal delivery in a wagon, automobile, truck, or other vehicle.