fee “far in excess of what might be deemed reasonably necessary for purposes of regulation” is invalid
How later courts described this case
- fee “far in excess of what might be deemed reasonably necessary for purposes of regulation” is invalid
- a municipal occupation tax is an excise
Written by the judges who cited it.
The opinion
*645 LUSK, J.,
SPECIALLY CONCURRING.
I agree with the result reached in this ease solely for the reason that I am unable to reconcile the claim of the city that this is an occupation tax, with the provisions of §§ 5 and 6 of the ordinance. A sales tax statute, which imposes a direct obligation on the retailer, may be a tax upon the retailer and not the consumer, and sustainable as a tax on the privilege of doing business. Western Lithograph Co. v. State Board of Equalisation, 11 Cal2d 156, 78 P2d 731 , 117 ALR 838 . But the difficulty with the Eugene ordinance is that no personal obligation of the theater’s proprietor arises until he has violated the trust imposed on him by § 5. That section clearly would seem to mean, as the court holds, that three per cent of the moneys collected from the sale of tickets never becomes the property of the theater proprietor, who is simply made a collecting agent for the city. If that be so, then the city has attempted to impose this three per cent tax on the consuming public. This, I agree, it has no authority to do.
I do not agree, as the opinion suggests, that if § 5 were disregarded this would be an income tax, or that the municipality may not lawfully impose an occupation tax measured by a percentage of current revenues and payable at the end of each month, rather than one graduated according to income earned in a previous year, as in the case of the Portland occupation tax ordinances recently sustained by us. Barnard Motors v. City of Portland, 188 Or 340 , 215 P2d 667 ; Garbade and Boynton v. City of Portland, 188 Or 158 , 214 P2d 1000 . The courts will not interfere with the legislative determination of the method by which the amount of a license tax is arrived at so long as it is not unreasonably *646 discriminatory. 33 Am Jur, Licenses, 369, § 46; State ex rel Griffin v. Green, 104 Mont 460 , 67 P2d 995 , 111 ALR 770 . In the case just cited a legislative act imposed a license tax on operators of all moving picture theaters of one and one-fourth per cent of the gross proceeds from the sale of tickets of admission in excess of $3,000 per quarter. The fact that the tax was payable quarterly, and that it was measured by a percentage of the “actual receipts from the sales,” instead of being graduated in amount, did not prevent the court from holding that it was a license tax imposed for the privilege of doing business. The gross proceeds were said to be “simply the measuring stick by which the amount of the license tax is determined, ’ ’ and the court held that it was without authority to interfere with the legislative determination in that regard. See, also, Home Insurance Co. v. New York, 134 US 594 , 10 S Ct 593 , 33 L ed 1025.
I concur in the result.