City of Cape Girardeau v. Riley

Decision Date31 October 1880
Citation72 Mo. 220
PartiesTHE CITY OF CAPE GIRARDEAU v. RILEY, Appellant.
CourtMissouri Supreme Court

Appeal from Cape Girardeau Court of Common Pleas.--HON. H. G. WILSON, Judge.

REVERSED.

Louis Houck for appellant.

Lewis Brown for respondent.

NAPTON, J.

The principal point in this case is, whether the city of Cape Girardeau had power to pass an ordinance numbered 208, by which the defendant, who was a merchant, was condemned to pay an ad valorem tax upon $6,000 of merchandise, ascertained under the general law of the State, which provides for licenses to merchants. The suit was upon a bond given by the defendant, as principal, and J. S. Riley, as security, for the payment on the 1st day of November, 1871, to the collector of the city, of all taxes then due from said defendant for the twelve months ending said 1st day of November, 1871, on his license as vendor of goods, wares and merchandise, and in default of such payment to pay all damages and costs. The petition then recites the ordinances, and among other ordinances 208, in which it was provided that merchants should pay an ad valorem tax equal to that levied upon real estate, on the highest amount of goods which they may have in their possession or under their control, whether owned or not, between the first Monday in March and first Monday in June, and asserts that Riley, the defendant, had in his possession between these dates $6,000 worth of goods, and consequently was obliged to pay $180, and refused to pay, etc. The answer denies that the city had power to pass this ordinance, and further asserts that said Riley was only the owner of $1,000 worth of personal property, and that this city had no power to make an ordinance providing for the collection of a railroad tax on personal property in possession of defendant but not owned by him. The only evidence adduced on the trial was that the goods, etc., in Riley's possession during the year of this assessment, were worth $6,000.

1. CAPEGIRARDEAU CITY CHARTER: taxation: merchant's license.

The charter of the city of Cape Girardeau, originally granted in 1863, was amended in 1869, and under the amendment the city was authorized to subscribe for “stock in any railroad where the same leads from or to said city,” and to pay said subscription, either principal or interest, was empowered to levy a tax upon all property therein made taxable by the general law of the State for State purposes. The general law in regard to such subscriptions authorized them to be made to any railroad duly organized under any law of the State, and then in order to pay said subscription the city authorities were authorized “to levy a special tax upon all property made taxable by law for county purposes, and upon the actual capital that all merchants and grocers and other business men may have invested in business in the city.” 1 Wag. Stat., p. 305, § 18. The ordinance (208) pursued the general law in regard to merchants, which enacts (§ 3, 2 Wag. Stat., p. 938), that merchants shall pay an ad valorem tax equal to that levied on real estate, upon the highest amount of goods which they may have in their possession or under their control, whether owned by them or consigned to them for sale, at any time between the first Monday of March and the first Monday in June, with certain exceptions having no bearing on this case.

The question is, whether those statutes are inconsistent, and if so, which must govern in this case. For myself, I incline to the opinion that there was nothing in the general law in regard to railroad subscriptions materially different from that in the law ascertaining the tax upon a merchant's license. The language is different, but no mode was pointed out by which the actual capital invested by the merchant could be ascertained. But waiving this, there is no question that the Cape Girardeau charter authorized an ad valorem tax, to be ascertained under the State general law. If there was a conflict between them, the charter of the city should govern,...

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    • United States
    • United States State Supreme Court of Missouri
    • December 19, 1914
    ...most indubitable case of unfairness and oppression in an ordinance will warrant a court in interfering with its enforcement. Cape Girardeau v. Riley, 72 Mo. 220, 223; Kansas City v. Trieb, 76 Mo. App. 478; City of St. Louis v. Spiegel, 8 Mo. App. 478, 482; Lamar v. Weidman, 57 Mo. App. loc.......
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