American Union Express Co. v. City of St. Joseph

Decision Date31 October 1877
PartiesAMERICAN UNION EXPRESS CO., Appellant v. CITY OF ST. JOSEPH.
CourtMissouri Supreme Court

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

Allen H. Vories for appellant.

1. The defendant, under its charter and ordinances, had no constitutional power under the same ordinance to provide one mode of taxation for merchants and an entirely different one for express companies, when the power to ““license, tax, &c.,” is contained in the same section.

2. Defendant had no power to license plaintiff's business and tax it for revenue purposes, especially in the same ordinance. The power to license, regulate and tax, as contained in defendant's charter, cannot be construed into a power to issue license to plaintiff for permission to carry on its business, and also to tax it for revenue purposes, as was done by defendant, using both means. 1 Dillon on Mun. Corp. §§ 291, 292, 293; 2 Ib. §§ 606 to 610; Cooley on Taxation, 408 to 413.

3. The tax, as assessed, was illegal, as but fifteen per cent. of the amount received, was received by plaintiff as a compensation in said city for the transaction of such express business, and the remainder passed through plaintiff's hands, in the way of paying back charges to other express companies, and advancing money to pay on freight carried by other companies outside of the State.

4. It is admitted that defendant could have passed an ordinance taxing the avocation of plaintiff as an express company; but it is denied that it had the power to impose a license, and then, by way of taxing its business, raise a revenue of two per cent. on $11,548.70, when, if plaintiff's $1,200 worth of property had been taxed, it would have received as revenue from plaintiff, twenty-four dollars instead of $230. The merchant pays taxes upon his property on hand once a year, but plaintiff pays upon the amount of money coming into its hands during the entire year. Hence the ordinance operates as a prohibition, is unjust and unequal.

5. The plaintiff is a foreign corporation, its stock owned in New York, engaged in transporting freight across the State of Missouri from California to New York. Now, if the defendant, or the State of Missouri, attempt to impose and collect a tax upon the gross amount of freight receipts received by plaintiff in St. Joseph for freight so transported across our state, the plaintiff being merely one of the connecting lines, it would clearly be unconstitutional and void. State Freight Tax Case, 15 Wallace 232.

Benjamin R. Vineyard for respondent.

1. The charter of defendant gave the mayor and city council power to license, tax and regulate express companies or their agencies, and in pursuance of that power and authority the ordinance complained of was passed; and the objections, on the ground of unconstitutionality are not well taken. Washington v. State, 13 Ark. 752; Zanesville v. Richards, 5 Ohio (N. S.) 589, 593; Baker v. Cincinnati, 11 Ohio (N. S.) 534, 541; 2 Dillon Mun. Corp. (2 Ed.) p. 692, § 593; Fire Depart. Milwaukee v. Helfenstein, 16 Wis. 136; U. S. Ex. Co. v. Ellyson, 28 Iowa 370; Simmons v. State, 12 Mo. 268; St. Louis v. Laughlin, 49 Mo. 562; Glasgow v. Rowse, 43 Mo. 489; Erie R. R. Co. v. Pennsylvania, 15 Wallace 284.

NORTON, J.

This suit was instituted in the circuit court of Buchanan county to recover back a part of the taxes paid by plaintiff for the years 1872 and 1873. It is alleged that the taxes were paid by plaintiff under protest, and because defendant, through its collector, threatened to seize and sell the property of the plaintiff to pay the same. The petition alleges that, during the years 1872 and 1873, the plaintiff only had at any one time $2,500 worth of property, and yet plaintiff's taxes for the year 1872, as assessed, amounted to $180.97, and for the year 1873, to $206.75, although the tax levy was only two per cent. It is alleged that this tax was illegally assessed, under an ordinance of said city requiring express companies to pay an ad valorem tax equal to that which is levied upon real estate within the limits of said city, for general and special purposes, upon the gross amount of all moneys which, during the year ending on the first day of January, shall have been received by such company, as a compensation for the transaction of such express business; that under said ordinance plaintiff was required, on the first day of January of each year, to take out a license, and to pay therefor, the amount assessed under said ordinance as an ad valorem tax; that, in consequence thereof, plaintiff has been forced to pay more than its due share of the municipal taxes for the years 1872 and 1873, and asks judgment for the recovery of the taxes so paid. The answer contained a denial of each and every allegation of the petition. Upon the trial, after the introduction of plaintiff's evidence, the court instructed the jury that on the evidence plaintiff was not entitled to recover. Whereupon a non-suit was taken, with leave, and a motion to set the same aside, and for new trial being overruled, the plaintiff brings the case here by appeal. On the trial plaintiff offered in evidence, a provision from defendant's charter, empowering it “to license, tax and regulate wholesale merchants, agents, express companies or their agencies, insurance companies or their agencies, telegraph companies or their agencies, land agents and real estate brokers,” also, an ordinance entiled “merchants,” to the effect that merchants shall, on the first day of January of each year, take out a license and pay an ad valorem tax, equal to that which is annually levied upon real estate within the limits of the city, on the actual cash value of all goods, wares and merchandize which they may have in their possession or under their control, whether owned or consigned to them for sale, on the first day of January in each year; also, another ordinance, entiled “express companies,” to the effect “that every express company or agency thereof, doing an express business in the city, shall pay an ad valorem tax equal to that which is levied upon real estate within the limits of the city, for general and special purposes, upon the gross amount of all moneys which, during the year ending on the first day of January, shall have been received by such company or agency in said city, as a compensation for the transaction of such express business.” Other evidence was introduced, showing that the city...

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