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<br />"THE'QUESTION BEFORE US IS NOT WHETHER THE CITY OF EUGENE HAS THE POWER TO MEASURE
<br />THE AMOUNT TO BE PAID'AS A LICENSE OR OCCUPATION,TAXBY THE GROSS RECEIPTS OF THE
<br />BUSINESS, BUT RATHER IT IS WHETHER IT HAS DONE.SO UNDER THE PROVISIONS OF THIS
<br />ORDINANCE. WE ARE HERE CONCERNED WITH THIS PARTICULAR ORDINANCE AND WITH THE
<br />PARTICULAR TAX THEREIN IMPOSED. IT IS IMMATERIAL THAT THE CITY MIGHT ACCOMPLISH
<br />THE SAME END BY, A DIFFERENT METHOD OF A DIFFERENT TAX; McLEOD V. D~LWORTH COL, 2Q5
<br />ARK 780, 171 SW 20 62, 322 US327, 88 L SO 1304, 1306. 64 S CT 1923.
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<br />"THE MOST SI GNI FI CANT THI NG ABOUT THI S PROVI'SION I S THAT THE SO-CALLED 'LI tENSE
<br />TAX' IS NOT LEVIED OR IMPOSED DIRECTLY UPON THE PERSON OPERATING THE BUSINESS AS
<br />A TAX UPON HIS RIGHT TO CARRY ON HIS PURSUIT; TO THE CONTRARY, IT IS A TAX LEVIED
<br />AND IMPOSED UPON THE BUSINESS ITSELF. . . . .
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<br />"UNDER THIS SECTION THE LICENSEE IS DESIGNATED A TRUSTEE FOR THE CITY. A TRUSTEE
<br />OF WHAT? THE ORDINANCE SPEAKS FOR ITSELF. HE ISA TRUSTEE OF THE TAXES,COLLECTED
<br />BY VIRTUE OF THE PROVISIONS OF SEC. 4 (A). ONE CANNOT BE A TRUSTEE OF HIS OWN
<br />FUNDS. THE LICENSEE, THEREFORE, IS MADE A TRUSTEE Of. FUNDS BELONGING EXCLUSIVELY
<br />TO THE CITY. HE BECOMES A TRUSTEE FOR THE CITY OF 3% OF EACH ADMISSION CHARGE
<br />COLLECTED, EXCLUDING THE FEDERAL ADMISSIONS TAX ON ADMISSIONS. THE RIGHT.AND
<br />OWNERSHIP OF THE CITY ATTACHES IMMEDIATELY AS EACH ADMISSION IS PAID. THREE PER
<br />CENT THEREOF NEVER BECOMES THE.PROPERTY OF THE LICENSEE. WE CANNOT-GIVE EFFECT
<br />TO THE PROVISIONS OF SEC. 5 UNLESS THIS IS TRUE, AND WE HAVE NO RIGHT TO ELIMINATE
<br />THAT SECTION FROM 'THE ORDINANCE. IT IS WHOLLY IMMATERIAL WHETHER THE,LICENSEE ADDS
<br />THIS TAX TO THE ESTABLISHED ADMISSION PRICE OR ABSORBS THE TAX HIMSELF, EITHER OF
<br />WHI CH COURSE HE MAY PURSUE. I TIS 'A TAX ON ADMI SSI ONS IN EI THER CASE, AND HE IS
<br />SIMPLY THE COLLECTOR, CUSTODIAN, AND TRUSTEE OF THE TAX SO COLLECTED UNTIL HE
<br />ACCOUNTS TO THE .CITY THEREFOR AND PAYS THE SAME OVER. No PERSONAL LIABILITY
<br />ATTACHES 'TO HIM FOR THE AMOUNT OF TAX COLLECTED UN~ESS AND UNTIL HE FAILS 'TO
<br />PROMPTLY ACCOUNT AND REMIT TO THE CITY RECORDER THE LICENSE CHARGE HEREIN PROVIDED',
<br />AS SET FORTH IN SEC. 6 OF THE ORDINANCE. PERSONAL LIABILITY, LOSS OF LICENSE, AND
<br />PUNISHMENT BY FINE ARE BUT THE PENALTIES PROVIDED FOR A BETRAYAL BY THE LICENSEE OF
<br />THE TERMS OF HIS TRUST.
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<br />"THE PROVISIONS OF SEC. 5 SIMPLY CARRY OUT THE INTENT AND PURPOSE OF SEC. 4 (A).
<br />As WE BEFORE OBSERVED, THE LEVY UNDER SEC. 4 (A) IS DIRECTLY AGAINST THE BUSINESS
<br />ITSELF AND IS NOT A TAX IMPOSED UPON THE PERSON CONDUCTING THE BUSINESS, AS A
<br />CONDITION OF HIS RIGHT TO CARRY' ON HIS OPERATIONS. THIS TAX DOES NOT POSSESS ANY
<br />OF THE EARM~RKS OF A LICENSE OR OCCUPATION TAX. ON THE OTHER HAND, THE ORDINANCE
<br />CLEARLY DISCLOSES THAT THE TAX IMPOSED IS A PURE EXCISE IN THE NATURE' OF AN ADMISSIONS
<br />TAX. IT IS A TYPE OF SALES TAX. IN EFFECT, IT IS PRECISELY THE SAME AS THE FEDERAL
<br />ADMI SSI ONS ,TAX.
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<br />"As BEFORE OBSERVED, A 0'1 FFERENT RULE APPLI E.S IN 'TESTI NG THE EXERCI SE OF A POWER
<br />TO TAX, FROM THAT WHICH APPLIES IN DETERMINI-NG THE EXISTENCE OF SUCH POWER. IF
<br />THE POWER EXISTS, THEN THE LEGISLATIVE BODY HAS THE RIGHT TO FINALLY DETERMINE THE
<br />AMOUNT OR RATE OF A TAX, I N THE ABSENCE OF CON.STI TUTI ONAL PROHI BI TJ ONS. I T MAY LEVY
<br />A TAX OF ANY AMOUNT IT SEES FIT. THE POWER IS UNLIMITED IN ITS REACH AS TO SUBJECTS
<br />TO BE TAXEDj AND ALSO IN ITS VERY NATURE ACKNOWLEDGES NO LIMITS, AND MAY BE CARRIED
<br />TO THE EXTENT OF EXHAUSTION AND DESTRUCTION, THUS IN ITS EXERCISE BECOMING A POWER
<br />TO DESTROY. MCCULLOCH V. MARYLAND, 4 WHEAT (US) 316 4 l ~D 579.
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<br />"As STATED I N I COOLEY, TAXATION 4TH ED, 181, SEC. 72:
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<br />'IF THE TAXES ARE OPPRESSIVE OR UNJUST, THE ONLY REMEDY IS THE BAGLOT BOX AND THE
<br />ELECTION OF NEW REPRESENTATIVES. ... THE JUDICIARY CAN AFFORD NO REDRESS AGAINST
<br />OPPRESSIVE TAXATION, SO LONG AS THE LEGISLATURE, IN IMPOSING,IT, SHALL,KEEP WITHIN
<br />THE LIMI~S OF LEGISLATIVE AUTHORITY, AND VIOLATE NO EXPRESS PROVISION OF THE,
<br />CONSTITUTION....
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<br />"THE AMOUNT OF A LICENSE OF OCCUPATION TAX, WHERE IT IS A TAX AS DISTINGUISHED FROM
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<br />A FEE IMPOSED IN THE EXERCISE OF THE POLICE POWER, IS WITHIN THE DISCRETION OF THE
<br />LEGiSLATURE ANDCrnOT BE REVIEWEDBY THE COURTS. I TIS "ONLY WHEN THE LI CENSEITE
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<br />IS EXACTED SO~ELY AS A POLICE REGULATION THAT THE COURT CAN CONSIDER WHETHER IT IS
<br />SO UNREASONABLE AS TO AMOUNT TQ,APROHIBITION."...'(ITALICS OURS.)" ,
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<br />"THE STATEMENT BY COOLEY, WHICH WE HAVE EMPHASIZED, IS SUBJECT TO SOME QUALIFICATIONS.
<br />IF AN OCCUPATION TAX IS PALPABLY ARBITRARY, CAPRICIOUS, AND UNREASONABLE, 'IT IS
<br />MANIFEST THAT THE COURTS SHOULD AFFORD RELIEF THEREFROM. SOMr COURTS H~V~ DONE SO.
<br />MORTON V. CI TV OF MACON, 1.11 GA 162, 36 SE627, 50 LRA 485; CI TV OF LOUI BVI LLE V.
<br />POOLEY, 136 Ky 286, '-24 SW 31'5, .25 LRA NS 582, AND NOTE."
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<br />IN ACCORDANCE WITH THE ABOVE VECISION, IT IS APPARENT THAT, U~DERTHE CHARTER
<br />or THE CITY OF EUGENE THE COMMON COUNCIL HAS THE AUTHORITY TO LEVY AND COLLECT AN
<br />OCCUPATIONAL TAX FOR REVENUE PURPOSES. IT WAS RECOMMENDED THAT THE CITY MANAGER AND
<br />CITY ATTORNEY INVESTIGATE THIS ENTIRE SUBJECT AND REPORT BACK TO THE COUNCIL AT AN
<br />EARLY DATE WLTH R~COMMENDATIONS. IT WAS BROUGHT OUT THAT IF THIS REVENVE IS NOT
<br />COLLECTED, THAT THE PARKS AND PUBLIC SAFETY DEPARTMENTS OF THE CITY WILL BE ADVERSELY
<br />AFFECTED."
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<br />IT WAS MOVED BY CRUMBAKER, SECONDED BY ALLEN THAT THE REPORT OF THE COMMITTEE BE RECEIVED
<br />AND PLACED ON FILE. MOTION CARRIED.
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