City of Dell Rapids v. McShane

GATES, J. In November, 1914, respondent, then a resident of Clark 'county, S. D., was selling apples and pears at retail from a box car at Dell Rapids, S. D. It was conceded that the fruit was not raised in this state and that it was not raised 'by respondent. Respondenlt was arrested, tried in the police justice court of Dell Rapids, and convicted of the offense of engaging in the business of a transient merchant without having paid the tax required by an ordinance of said city. Upon appeal to' the circuit court of Minnehaha c'ounty he was again convicted, and judgment was entered sentencing him to a fine of $20 and cosits. Upon a motion for a new trial the verdict and judgment were vacated and a now trial granted. From' this order the city appeals. [1] Ordinarily the granting of a new trial should not he reversed, but, as there is no dispute as ito the facts and the question before us is simply one of law, that rule does not apply. [2] It is strongly urged that there is a variance between the provisions of chapter^ 190, Laws 1903, and the ordinance of Dell Rapids1 in question, and that therefore the ordinance is invalid. There is no1 merit in such claim. Chapiter 190, Laws 1903, purports only to relate to a county tax on peddlers. Section 5 of that act expressly provides that those affected by the county tax may also be subject to the payment of a transient merchant tax in cities or towns. ¡So we are not 'Concerned with that chapter in the determination of this case. [3] The question remaining is, therefore, whether the ordinance is invalid, as discriminatory, (because it is not as broadl as (the statute. Oonst. art. 6, § 18. The authority for the ordinance is found in subdivision 81, § 54, c. 86, Laws 1907, now subdivision 81, § 53, c. 119, Laws 1913, which reads as follows: [89] “It shall 'be the duty of 'the city council to tax, license and regulate transient merchants, auctioneers, transient bankrupt and auction store and all stores of like nature, also gift enterprises and every business or avocation of a like character. 'Provided, this shall not be construed to apply to any person retailing the productions which can be shown to be his or her manufacture or production.” Dell Rapids is a city under the commission form of government, and section 71 of chapiter 5 of its ordinances is as follows: “Sec. 71. License — Ammmt.—Auctioneers shall pay the sum of $3.00 per day or $20.00 per year; transient merchants tire sum of $3.00 per d'ay, and transient bankrupt or auction stores the sum of $3.00 per day.” 'Section 72 excepts auctions anldi auctioneers in the sale at audtion of live stock, farm prdu-octs, or of goods, wares, and merchandise under chattel mortgage, or under order of any court, or law respecting collection of taxes or sale of property of the state or the United States, or sale under assignment for benefit of creditors, or sale by or for any executor or admiinisi-■tratar. Other sections provide penalties for tire violation of the ordinance. In other words, the statute does not apply to-those retailing their own products-, while the ordinance does not except this class from its -operation. If it had been shown that this fruit was raised -by Mr. McShane he would have -been entitled to question the constitutionality of the ordinance, but as it conced-edly appears that hie was a trnsient merchant and that the fruit was not raised by him, he -is not entitled to- raise ’the question. He is not concerned with the failure of the ordinance to -except such -class from- .its operation. Red River Valley Nat. Bank v. Craig, 181 U. S. 548, 21 Sup. Ct. 703, 45 L. Ed. 994; State v. Kirby, 34 S. D. 281, 148 N. W. 533; Hendrick v. Maryland, 235 U. S. 610, 35 Sup. Ct. 140, 59 L. Ed. 385. As far as respondent is concerned- the ordinance is val-id. [4] Furthermore, a -person who retails apples of his own production is not a merchant within ¡the meaning of the ordinance under Consideration. He is no more a merchant than is the farmer who brings eggs and butter to his town customers. The fundamental -idea conveyed 'by the word “merchant” is one who buys and sells merchandise. Words and P-h-rases, First and Sec90 one! Series. 'Such is the definition of a merchant under our general tax laws, § 2078, Pol. Ode, and the same definition should be .applied under special tax laws. Under this view there is no 'inconsistency between the statute and the ordinance of Dell Rapids. r The orlder granting a new trial is vacated, and the cause remanded.