Duff v. The City of Garden City

• Decision Date: 08 January 1926
• Docket Number: 27,036
• Citation: 251 P. 1091,122 Kan. 390
• Parties: V. A. DUFF et al., Appellants, v. THE CITY OF GARDEN CITY et al., Appellees
• Court: Kansas Supreme Court

251 P. 1091

122 Kan. 390

V. A. DUFF et al., Appellants, v. THE CITY OF GARDEN CITY et al., Appellees

No. 27,036

Supreme Court of Kansas

January 8, 1926

Decided January, 1927.

Appeal from Finney district court; CHARLES E. VANCE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

MUNICIPAL CORPORATIONS--Charge for Selling Gasoline and Oil--Construction--Void as License Fee. A charge imposed by a city on the business of selling gasoline and oil is interpreted to be in substantial part a license fee rather than an occupation tax and is held to be in conflict with chapter 274 of the Laws of 1925, which provides for a state tax on the business and exempts dealers from the payment of license fees and all other charges except occupation taxes.

Earle W. Evans, George C. Spradling, both of Wichita, Edgar Foster and Horace J. Foster, both of Garden City, for the appellants.

Robert S. Field and R. W. Hoskinson, both of Garden City, for the appellees.

Johnston C. J.Hopkins, J., not sitting.

OPINION

JOHNSTON, C. J.:

This was an action by a number of individuals, firms and corporations engaged in the sale of gasoline and oil against Garden City to enjoin the enforcement of a city ordinance fixing what is termed an occupation license fee upon the business of selling gasoline. A temporary injunction was granted at the commencement of the action, but after plaintiffs had introduced their evidence at the trial, the court sustained a demurrer thereto dissolving the temporary injunction previously granted and gave judgment for the defendants. Plaintiffs appeal.

They contend that the ordinance under which fees are charged and collected is in conflict with the statute imposing a tax on the sale or use of motor-vehicle fuels, including gasoline, and providing "that the tax herein provided for shall be in lieu of all other taxes or license fees (except occupational taxes) upon the sale or use of said motor-vehicle fuels." (Laws 1925, ch. 274, § 6.) It was also insisted that the fee charged is unreasonable, oppressive and confiscatory and that the revenue requirements of the city do not warrant the imposition of such a charge. The material parts of the ordinance challenged for invalidity follow:

"ORDINANCE No. 261.

"AN ORDINANCE fixing an occupation license fee on certain trades, occupations and businesses in the city of Garden City, Kansas, and classifying the same for the purpose of regulating such trades, occupations and businesses and raising revenue for said city and providing for the time and manner of paying such license fees and fixing penalties for the nonpayment thereof.

"Be it ordained by the Mayor and Commissioners of the city of Garden City, Kan.:

"SECTION 1. That every person, firm or corporation now engaged in the business, trade or occupation of selling gasoline in said city either at wholesale or at retail, shall pay to said city an annual license fee for each place of business conducted by them as follows:

"At each place of business, or filling station where one gasoline pump is used in dispensing gasoline in said business, the sum of $ 360.

At each place of business or filling station where two gasoline pumps are used in dispensing gasoline in said business, the sum of $ 720.

"Where no gasoline pumps are used but other means are used for dispensing gasoline at wholesale or at retail, the sum of $ 360 annually for each dispensing method used.

"SEC 2. The license fee provided for in this ordinance shall be paid in twelve equal monthly installments and each person, firm or corporation required to pay a license fee under the provisions hereof shall pay one-twelfth part of said annual license fee to the city clerk in advance on the first day of each month, the first monthly installment of said fee to be paid after this ordinance takes effect shall be made on the first day of October, 1925, the city clerk shall issue the city's receipts for all fees received under this ordinance, which receipt shall recite the month or period of time for which such fee is paid and the date when paid and the amount thereof.

"SEC. 3. Every person, firm or corporation who shall fail for five days to pay any monthly installment of said license fee as herein provided for and required herein to be paid by them, after the same is due and payable shall be deemed guilty of a misdemeanor and shall be fined not less than $ 50 nor more than $ 100 and the costs of prosecution and shall be committed to the jail of...