City of Kansas v. Johnson

• Decision Date: 31 October 1883
• Citation: 78 Mo. 661
• Parties: THE CITY OF KANSAS v. JOHNSON, Appellant.
• Court: Missouri Supreme Court

78 Mo. 661

THE CITY OF KANSAS

v.JOHNSON, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

J. B. F. Cates and Milton Campbell for appellant.

R. H. Field and D. S. Twitchell for respondent.

NORTON, J.

This suit was instituted before a justice of the peace upon the following statement, viz: “Plaintiff states that on the first day of January, 1878, and for more than three months prior thereto, the defendant, Jervis Johnson, was carrying on business as a merchant in the City of Kansas; that the said city, by its mayor and common council, duly assessed and levied on the wares and merchandise of said defendant:

A Merchant's License Tax, for the year 1878, of

$234 00

Interest and penalty on said tax

18 72

Attorney's fee for Counselor

25 27

Total

$277 99

Which said tax, interest, penalty and costs have not been paid, and for which plaintiff asks judgment.

S. P. TWISS, City Counselor,

Plaintiff's Attorney.”

On the trial before the justice plaintiff obtained judgment, from which defendant appealed to the special law and equity court, where plaintiff again obtained judgment, from which defendant has appealed to this court. The following proceedings were had at the trial, to-wit:

Plaintiff offered to read in evidence from the personal tax-book of 1878, of Kansas City, as follows:

Name, Jervis Johnson.

Location, 543 Main Street.

Business, Queensware Dealer.

Cash value of goods as returned by assessor

General tax per centum

$ 90

Per cent for payment of Bonds and Coupons

144

Total

$234

Defendant objected to the admission of this evidence on the ground that no cause of action is stated against defendant, it not appearing (a) that plaintiff has capacity to sue; (b) nor that defendant was a merchant in the fiscal year 1878; (c) nor that any right to levy a gross tax of $234 existed; (d) nor that a levy of interest, penalty or attorney's fees on license tax was legal; (e) nor that an ordinance levying such tax was pleaded, nor that a suit for a license tax is given. (2) And that said evidence is irrelevant. The court overruled these objections, and admitted said evidence, to which defendant excepted.

Plaintiff then offered in evidence an ordinance of the City of Kansas, approved April 16th, 1878, entitled, “An ordinance to levy taxes for the fiscal year, beginning on the 15th day of April, 1878.” Said ordinance levies 10 mills on the dollar as a general tax; 13 1/2 mills on the dollar for payment of bonds, etc., and 2 1/2 mills on the dollar for a sinking fund; and levies said taxes amounting to 26 mills, “on the merchants named in the list made and returned by the city assessor for the fiscal year beginning on the third Monday of April, 1878.” And said ordinance closes as follows: “License taxes shall be collected in the same manner and at the same time as taxes on the other personal property; and all laws and ordinances governing as to collection of taxes on personal property generally shall apply to the collection of taxes on merchants.”

Defendant objected to the admission of this ordinance in evidence: (1) Because it was not pleaded. (2) Because the last sentence is not included in the title. (3) Because the law does not permit such mode of collection. (4) Because said last sentence is uncertain, impossible and beyond the power of the council. The court overruled these objections and admitted said ordinance in evidence, and defendant excepted. Plaintiff offered no further evidence, but rested.

Defendant put in evidence: (1) His tax receipt and license as a merchant from plaintiff for the fiscal year 1877, ending April 15th, 1878. (2) His tax receipt and license as a merchant delivered him by plaintiff for the fiscal year 1878, ending April, 1879. (3) It was admitted on the trial by both parties: (a) That defendant was a merchant and owned the wares and merchandise covered by the first of said licenses during 1877, and up to March 1st, 1878, at which date he sold them to a party who forthwith took them from this State; that defendant did not own said goods during the year 1878 after the 1st of March, 1878. (b) That the second of the above licenses and tax receipts covered a new and different stock of goods, procured by defendant during the fiscal year 1878. (c) That the license tax here sued for was levied under the charter of Kansas City, approved March, 1875, and that said city never organized under the general laws relating to cities, approved April 21st, 1877. (4) The revised ordinance of the City of Kansas, approved October 14th, 1861, defining a merchant, prescribing a punishment for dealing as a merchant without a license, requiring a bond to pay “all taxes due on his license,” and that the city attorney shall collect the licenses unpaid by any process known to the law. This was all the evidence.

1. JUSTICES' COURTS: statements.

We are of opinion that the trial court did not err in overruling defendant's objection to the introduction in evidence either of the personal tax-book, or the ordinance entitled “An ordinance to levy taxes for the fiscal year beginning on the 15th day of April, 1878.” It will be observed that this suit was commenced before a justice of the peace, and in such cases the statement filed is sufficient if it advises the defendant of the nature of the demand against him. It is manifest from the statement, that plaintiff's demand against defendant is for unpaid taxes duly assessed, as alleged, on the wares and merchandise of said defendant, as a merchant.

2. MERCHANT'S TAX UNDER KANSAS CITY CHARTER.

We do not think it was necessary to aver in the statement that defendant was a merchant during the fiscal year of 1878. This, we think, is manifest from sections 5, 8 and 9, pages 219, 220, Acts 1875. Section 5 provides that every person owning or holding property subject to taxation for municipal purposes on the 1st day of January of any calendar year after 1875, including all property purchased on that day, shall be liable for taxes thereon for the fiscal year beginning on the third Monday of April next thereafter. Section 8 provides that the assessor shall, at least ten days before the 1st day of January in each year, give public notice * * that all merchants doing business in the city, are required (on or before the 15th day of February next) to furnish to him at his office, a true statement, verified by the oath or affidavit of such merchant or his agent, of the highest amount in value of all goods, wares and merchandise owned or kept on hand for sale by such merchant at any time within three months before such 1st day of January. Section 9 makes it the duty of the assessor between the 1st day of January and the 15th day of March of each year to return to the council a full and complete assessment of all property * * and a list of all merchants doing business in said city, with the cash value of the...