City of Leavenworth v. Ewing
| Citation | 101 P. 664,80 Kan. 58 |
| Decision Date | 10 April 1909 |
| Docket Number | 16,127 |
| Parties | THE CITY OF LEAVENWORTH v. RALPH A. EWING |
| Court | United States State Supreme Court of Kansas |
Decided January, 1909.
Error from Leavenworth district court; JAMES H. GILLPATRICK, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. MUNICIPAL CORPORATIONS--License-tax--Domestic Business of Express Companies. The legislature has authorized the officers of a city of the first class to impose a license-tax on express companies and agencies conducting an express business within the state--that is, the business of receiving packages from persons in the city and transmitting them to persons in other places within the state, and of receiving and delivering packages transmitted from other places within the state to consignees in the city. (Topeka v Jones, 74 Kan. 164, 86 P. 162.)
2. LICENSE-TAX--Interstate Commerce. An occupation tax imposed on express companies, under an ordinance wherein it is expressly provided that it shall only apply to domestic business and never to interstate business, is not a regulation of or a burden upon interstate commerce.
3. LICENSE-TAX--Same. A tax may be imposed upon the business done within the state although the express company in carrying the packages from one point to another within the state passes for a short distance over the soil of another state.
4. LICENSE-TAX--Domestic Business of Express Companies. It is not an objection to the tax that much the larger part of the business of such company is interstate. If a small but separable and definite part of the business is domestic the express company can not escape payment of the state tax imposed on that part.
J. H. Wendorff, for the appellee.
John T. O'Keefe, for the appellant.
Ralph A. Ewing, agent of the United States Express Company at Leavenworth, was arrested for the violation of a city ordinance imposing a license-tax on express companies and agencies. He was convicted upon the charge in the city court, and upon appeal was again convicted in the district court. In this appeal he is complaining that the ordinance under which he was convicted is invalid, and that the statute providing for a license-tax on express companies and agencies is inapplicable and does not warrant the ordinance which was enacted. The statute under which the ordinance was drawn provides that the mayor and council may levy and collect a license-tax upon and regulate the callings and occupations carried on and operated within the limits of the city, "including express companies and agencies." The ordinance provides that no person, firm or corporation, through his principal or agent, shall carry on or conduct any business, occupation or calling in the city of Leavenworth without taking out a license and paying the license-tax prescribed in the ordinance. It then provides:
The violation of any of the provisions of the ordinance is declared to be a misdemeanor, for which a fine may be imposed of not less than the amount of the license required to be paid nor more than double the amount thereof.
The contention that the statute authorizing the tax on occupations conducted within the city does not include the express business of carrying packages from other cities and places of the state into Leavenworth or of collecting packages in Leavenworth and carrying them to places within the state but outside the city has been negatively answered in Topeka v. Jones, 74 Kan. 164, 86 P. 162.
It is contended, however, that the ordinance imposes a tax and burden upon interstate commerce, and is therefore invalid. It will be observed that neither the statute nor the ordinance proposes to lay a tax upon interstate business. On the other hand, it is made clear by the terms of the ordinance that interstate business, as well as that done for the United States, is expressly excepted from its operation. It is conceded that persons and corporations engaged in interstate business may be subjected to the payment of taxes properly levied by the state upon their property within its borders and also on business wholly conducted within the state; and it is likewise conceded that no state has the power to lay a direct tax or burden upon interstate commerce. The supreme court of the United States has held in a great number of cases that a tax levied directly upon interstate business alone or upon such business where it is carried on in connection with local business, and also a requirement that persons or corporations shall take out a license and pay a tax before they can conduct an interstate or local business, is a burden on commerce between the states and a regulation which belongs exclusively to congress. The following may be cited as a type of many other cases: Crutcher v. Kentucky, 141 U.S. 47, 35 L.Ed. 649, 11 S.Ct. 851; Leloup v. Port of Mobile, 127 U.S. 640, 32 L.Ed. 311, 8 S.Ct. 1380; Norfolk &c. Railroad Co. v. Penn., 136 U.S. 114, 34 L.Ed. 394, 10 S.Ct. 958. (See, also, The State v. Telegraph Co., 75 Kan. 609, 90 P. 299, and cases therein cited.) It is equally well settled that persons or companies carrying on a domestic business in connection with interstate business may be subjected to the payment of a state tax imposed on purely domestic business. In the Crutcher case, supra, after holding that a statute which made the obtaining of a license a prerequisite to the doing of interstate business was invalid, it was stated that "taxes or license-fees in good faith imposed exclusively on express business carried on wholly within the state would be open to no such objection." (Page 59.) The direct question of the right to impose a license-tax upon local business carried on by express companies doing both local and interstate business was determined in Osborne v. Florida, 164 U.S. 650, 41 L.Ed. 586, 17 S.Ct. 214. It was there held that, "so long as the regulation as to the license or taxation does not refer to and is not imposed upon the business of the company which is interstate, there is no interference with that commerce by the state statute." (Page 655.) It was also said that where the "law made the payment of the fee or the obtaining of the license a condition to the right to do any business whatever, whether interstate or purely local, it was on that account a regulation of interstate commerce, and therefore void" (p. 655), but it was held that if an express company can conduct its interstate business without paying any attention to the statute, and is not required to take out a license or pay a tax before doing that kind of business, the statute is valid. (See, also, Western Union Telegraph Co. v. James, 162 U.S. 650, 40 L.Ed. 1105, 16 S.Ct. 934; Ratterman v. Western Union Tel. Co., 127 U.S. 411, 32 L.Ed. 229, 8 S.Ct. 1127; Maine v. Grand Trunk R'y Co., 142 U.S. 217, 35 L.Ed. 994, 12 S.Ct. 121; Pacific Express Company v. Seibert, 142 U.S. 339, 35 L.Ed. 1035, 12 S.Ct. 250; Lehigh Valley Railroad v. Pennsylvania, 145 U.S. 192, 36 L.Ed. 672, 12 S.Ct. 806; Pullman Co. v. Adams, 189 U.S. 420, 47 L.Ed. 877, 23 S.Ct. 494; Allen v. Pullman...
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Ralph Ewing v. City of Leavenworth
...convicted of violating an ordinance of the city imposing a tax on the business of express companies. The conviction was affirmed in 80 Kan. 58, 101 Pac. 664, and the case is brought Under the ordinance a tax was imposed on the business and occupation of express companies as follows: 'The su......