In re The Application of H. G. Chipchase for A Writ of Habeas Corpus

• Decision Date: 11 January 1896
• Docket Number: 10419
• Parties: In the matter of the Application of H. G. CHIPCHASE for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

43 P. 264

56 Kan. 357

In the matter of the Application of H. G. CHIPCHASE for a Writ of Habeas Corpus

No. 10419

Supreme Court of Kansas

January 11, 1896

Decided January, 1896.

Original Proceeding in Habeas Corpus.

THE opinion herein, filed January 11, 1896, contains a sufficient statement of the case.

Remanded.

Bentley & Ferguson, and Gleed, Ware & Gleed, for petitioner.

Geo. W Adams, city attorney, and John W. Adams, for respondent.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On September 13, 1895, H. G. Chipchase, the manager of the Missouri and Kansas Telephone Company at Wichita, was arrested for the violation of an ordinance of the city of Wichita imposing a license tax on telephones, and prescribing penalties for using them without complying with its requirements. The first section of the ordinance provides that any company, corporation or person engaged in the telephone business in the city of Wichita shall pay a license tax of $ 12 per annum upon each business 'phone, and a tax of $ 10 per annum for each residence 'phone, used in carrying on such business, and making it unlawful to carry on the business without having obtained from the city clerk a license therefor. The second section provides that if any company, corporation or person carries on the business without procuring a license they will forfeit the sum of $ 25 for each day that each 'phone is used or operated. The third section makes it an offense to carry on the business without paying the tax and procuring a license, and provides that any manager, agent, servant or employee of a company, corporation or person who shall violate the ordinance shall upon conviction be fined in any sum not exceeding $ 100. The telephone company of which Chipchase was the manager was engaged in the telephone business in Wichita, and it is alleged that the company had about 290 telephones in use within the corporate limits of the city. The company refused to pay the license tax or otherwise comply with the provisions of the ordinance, and, upon a complaint made, Chipchase was arrested under a warrant issued by the police judge of the city of Wichita. Upon the application of Chipchase the writ of habeas corpus was issued. In the return of the city marshal he sets forth the fact that Chipchase is in his custody by virtue of a warrant duly issued as aforesaid, and also setting out a copy of the city ordinance under which the petitioner was prosecuted. Chipchase excepts to the sufficiency of the return and asks to be discharged from custody. It is insisted by the petitioner that the ordinance is void, first, because the license tax is unreasonable and excessive; second, because it obstructs and places a burden upon interstate commerce; third, because the instruments upon which the license taxes are assessed are covered by letters patent.

In the application for the writ are found allegations to the effect that the license tax imposed is grossly excessive, and that as the business of the company extends beyond the limits of the state, the license tax amounts to a tax on interstate commerce. These and other averments of the application, however, are not admitted in the return to the writ, and they were denied by counsel for respondent at the hearing. The questions so well argued by counsel are therefore not ripe for decision, nor do any of the objections made afford grounds for the discharge of the petitioner. No issue was joined nor proof offered in the case. The averments of the application are not to be taken as true because they are not denied in the return. The return is not treated as an...