Kansas City v. Ferd Heim Brewing Company

• Decision Date: 02 March 1903
• Parties: KANSAS CITY, Appellant, v. FERD HEIM BREWING COMPANY, Respondent
• Court: Kansas Court of Appeals

73 S.W. 302

98 Mo.App. 590

KANSAS CITY, Appellant, v. FERD HEIM BREWING COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

March 2, 1903

Rehearing Denied 98 Mo.App. 590 at 595.

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

A. W Burnet for appellant.

(1) Article 5, section 13, Charter 1898, provides that all property of corporations, etc., shall be assessed as the property of individuals is assessed, etc. If this brewing company carried merchandise for sale, then it was taxable. Revised Charter of Kansas City, 1898, art. 5, sec. 8. The act of the assessor and board is judicial. Black v McGonnigell, 103 Mo. 192; Lead Co. v. Simms, 108 Mo. 222; Meyer v. Rosenblatz, 78 Mo. 495; Wyatt v. Hoyt, 123 Mo. 253; State ex rel. v. Springer, 134 Mo. 212; State ex rel. v. Vaile, 122 Mo. 33; State ex rel. v. Bank, 120 Mo. 120; State ex rel. v. Seehorn, 143 Mo. 683. (2) The only contention of appellee is, "that under the charter of Kansas City and the Statutes of the State" it is and was not a merchant the years for which said suit is brought. Revised Charter 1898, art. 5, sec. 8. To sustain our position we cite: State ex rel. v. Whitaker, 33 Mo. 457; State ex rel. v. West, 34 Mo. 424; S. C., 28 Mo. 565; S. C., 45 Mo. 575. (3) This is not a privilege or occupation tax, but an ad valorem personal property tax, ascertained on the average value of goods, wares and merchandise for the three months just prior to January 1 of each year, says the court in Kansas City v. Johnson, 72 Mo. 661; Cape Girardeau v. Riley, 72 Mo. 220, and cases cited; Kansas City v. Lorber, 64 Mo.App. 604; Kansas City v. Vinquest, 36 Mo.App. 584.

Hardin & Taylor for respondent.

(1) As the appellant asked no declarations of law, and this being an action at law tried by the court, the appellant is not in position here to have a review of the decision of the lower court. Wischmeyer v. Richardson, 153 Mo. 556; Clark v. Railroad, 127 Mo. 255; Taylor v. Cayce, 97 Mo. 242; Miller v. Breneke, 83 Mo. 163; Cunningham v. Snow, 82 Mo. 587; Wenzell v. Erath, 48 Mo.App. 476; Wheeler v. McDonald, 77 Mo.App. 213. (2) No objection was raised in appellant's motion for new trial against respondent's demurrer to the evidence, and it is not before this court for review. Planing Mill v. Allison, 71 Mo.App. 252; State v. Craig, 79 Mo.App. 412; Brown v. Mays, 80 Mo.App. 81; State ex rel. v. Bank, 144 Mo. 381; State v. Grant, 152 Mo. 57. (3) But, aside from the above, it is a matter of common knowledge, and one of which the courts take judicial cognizance, that a brewery is not a merchant, and the city can not tax it as such. Kansas City v. Butt, 88 Mo.App. 237; Kansas City v. Lorber, 64 Mo.App. 608. "A brewer is not a merchant." Josselyn v. Pierson, L. R. 7 Exch. 127; 2 Bouvier Law Dict., "Merchant;" Ex parte Conant, 77 Me. 275; Cooley on Tax, p. 583; Kansas City v. Grush, 151 Mo. Mo. 128; State v. Chadbourn, 80 N.C. 479; S. C., 30 Am. Rep. 94; Kansas City v. Lorber, 64 Mo.App. 608.

OPINION

BROADDUS, J.

--This is a suit of the plaintiff against defendant, a corporation doing business in Kansas City, for merchants' and ad valorem and personal property taxes, for the years 1898, 1899 and 1900. The defendant denied its liability for such tax, on the ground that it was not engaged in the business of a merchant, but that of a manufacturer. The trial court found for defendant and plaintiff appealed.

The case turns upon a proper definition of the term "merchant." By section 78 of article 5 of the charter of Kansas City the word "merchant" when used in such charter, "shall be held to mean and include every person or co-partnership of persons, who shall deal in the selling of goods, wares and merchandise at any store, stand or place occupied for that purpose in Kansas City." Section 8540, Revised Statutes 1899--the same as section 6894, Revised Statutes 1889--defines a merchant as follows: "Every person, corporation or co-partnership of persons who shall deal in the selling of goods, wares and merchandise, including clocks, at any store, stand or place occupied for that purpose, is declared to be a merchant." Substantially, the two definitions are the same. These definitions are somewhat different from that of the common law, and as such, of course, must govern. The question has been adjudicated in this State, the latest of which, under the Constitution, we are bound to follow. The last case that we have been able to find is that of State v. Richeson, 45 Mo. 575, in which it was held "One who manufactures and supplies goods to the previous orders of his customers alone, although he keeps on hand, but not for sale, the materials from which the manufactured articles are produced, is not a merchant within the meaning of the statute." But "In an action by the State against one engaged in the manufacture of white lead, for exercising the trade and business of a 'merchant without license,' the State would make out a prima facie case by showing that defendant, after receiving orders from his customers, filled them the same and succeeding days. The natural inference would be that he kept the articles on hand; and to rebut this inference it was not sufficient to show that he might have manufactured the lead after the orders were received, but he should have shown that he did so manufacture it."

In State v. West, 34 Mo. 424, it was held: "To be a merchant in the sense of the law, the dealer must have on hand goods, wares, and merchandise ready for sale and present delivery, and must also actually deal in the selling of the same. One who manufactures and supplies goods alone to the previous order of his customers, although he keeps on hand, but not for sale, the materials from which the manufactured articles are produced, is not a merchant within the meaning of the statute." In State v. Whittaker, 33 Mo. 457, the court held: "A merchant, under the statute, is a person who deals in the selling of goods, wares and merchandise, at any store, stand, or place occupied for that purpose. It is immaterial if the defendant, by his labor, changed the form of the goods sold; if he deal in the selling of the goods at a store, he is a merchant for the purposes of the act." And it was further held that it was "immaterial that the store, stand, or place may have been also occupied for some other purpose."

It will be seen by these decisions that a manufacturer may or may not be a merchant within the meaning of the charter and the statute of the State. If he keeps at a store, stand or other place, in stock articles manufactured by him for sale...