Kansas City v. Graybar Elec. Co., 54712

• Decision Date: 11 May 1970
• Docket Number: No. 2,No. 54712,54712,2
• Citation: 454 S.W.2d 23
• Parties: City of KANSAS CITY, Missouri, a Municipal Corporation, Appellant, v. GRAYBAR ELECTRIC CO., Inc., Respondent
• Court: Missouri Supreme Court

Page 23

454 S.W.2d 23

City of KANSAS CITY, Missouri, a Municipal Corporation, Appellant, v. GRAYBAR ELECTRIC CO., Inc., Respondent.

No. 54712.

Supreme Court of Missouri, Division No. 2.

May 11, 1970.

Herbert C. Hoffman, City Counselor, George L. DeBitetto, Associate City Counselor, Kansas City, for appellant.

Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for appellee.

PRITCHARD, Commissioner.

The City of Kansas City seeks to collect from Graybar Electric Company alleged past due and delinquent Occupational License taxes for calendar years 1962 through 1966, inclusive. The Occupational License taxes claimed to be due are based upon ordinances of the City and the total amount prayed for in five counts is $10,051.08, penalties for nonpayment having been waived in the trial court. The dispute between the parties arises over the City's claim that annual gross receipts from sales of merchandise outside the limits of Kansas City are includable for the license tax purposes.

The City asserts as the basis for jurisdiction in this court three grounds: 'I. This suit involves a construction of the Constitution of the United States, Article I, Section 8, pertaining to Interstate Commerce. II. This suit involves a construction of the Constitution of the State of Missouri, 1945, in particular Article III, Section 40, pertaining to Local and Special Laws. III. This suit involves a construction of the Revenue Laws of the State of Missouri, in particular Section 92.040, pertaining to the licensing of Merchants and Manufacturers.'

The trial court concluded that Article I (57) of the City's Charter is a valid and sufficient basis for enactment of the occupational tax ordinances (§§ 30.260 and 30.1740) imposing such tax on Graybar as a retail or wholesale merchant; the failure to define 'merchant' in the Charter or any ordinance does not affect its validity and Graybar tacitly acknowledged (by past conduct) itself to be within the purview of the ordinance term 'merchant, wholesale-retail'; the ordinances under consideration are revenue laws which will be construed with reasonable strictness and (importantly) the court stated its conclusion No. 5: 'A reasonable construction of the Charter provision and ordinances under consideration is that they were intended to cover sales consummated within the territorial limits of Kansas City and shipments made therefrom. In computing the occupational license tax upon gross receipts, therefore, sales outside the territorial limits of Kansas City must be excluded, since there is no expressed intention to the contrary which intention, in any event, could only be based upon a legitimate exercise by the city of its taxing power in that area, none of which has been manifested.' The trial court further concluded that the pleaded defenses of the City's claim being barred by the statute of limitations, res judicata, collateral estoppel and stare decisis had not been proved by Graybar.

Graybar submits that none of the City's above-asserted grounds place jurisdiction in this court, and directs attention to this statement in the findings of fact of the trial court:

'The only issue in dispute is whether the third category, direct shipment (or drop shipment) sales are properly includable and taxable under the ordinance as gross receipts as the basis for plaintiff's computation of its occupational license tax.'

The City, in effect, insists that since Graybar pleaded one constitutional defense and injected others into the case by requesting findings and conclusions of law thereon, they are in the case by reason of this final judgment entered by the trial court:

'* * * (T)he Court now finds all issues in favor of the defendant Graybar Electric Company, Inc. and against the plaintiff Kansas City, Missouri, on Count I, Count II, Count III, Count IV and Count V of plaintiff's petition for the reasons hereinbefore stated in its Findings of Fact and Conclusions of Law * * *.'

Before the trial court entered its findings of fact it made this initial entry: '* * * and the Court having taken said cause under advisement, now once again takes up and considers said cause and makes and enters its findings of fact and conclusions of law, all proposed findings and conclusions of the respective parties which conflict with the Court's findings and conclusions are hereby deemed refused.'

Enlarging in argument, the City says that since Graybar pleaded the defense of any ordinances purporting to give the City authority to tax on interstate shipments were contrary to federal and state constitutions and were void; that it pursued that defense through trial; and that the City requested findings of fact and conclusions of law on the interstate issue (which issue was further involved in a defense of res adjudicata and collateral estoppel based upon a previous adverse ruling to the City in a case involving claims for taxes for different years) 'the constitutional defense once raised and pursued cannot be waived.' It is further said by the City that Graybar asked the court for a favorable ruling that Merchants' Tax ordinance, § 30.1740, is unconstitutional as being special legislation contrary to Mo.Const.1945, Art. III, § 40. The argument is that this unpleaded defense, being interjected and pursued at trial, is a direct attack on the constitutionality of § 30.1740. As to its assertion that this case involves a construction of (revenue law) § 92.040, RSMo 1959, V.A.M.S., by reason of the trial court's conclusion No. 5, above, the City claims the issue was preserved as a point of error in its motion for new trial.

In order for this court to have...