Kansas City v. Whipple

• Decision Date: 23 December 1896
• Citation: 38 S.W. 295,136 Mo. 475
• Parties: KANSAS CITY v. WHIPPLE.
• Court: Missouri Supreme Court

38 S.W. 295

136 Mo. 475

KANSAS CITY v. WHIPPLE.

Supreme Court of Missouri.

December 23, 1896.

POLL TAX — SANITARY FUND — CONSTITUTIONAL LAW.

A city charter requiring that a poll tax of $2.50 for sanitary purposes should be levied in years of general election on every male resident of legal age, but exempting persons voting at such election, discriminates between the subjects of taxation in the same class, and is in violation of Const. art. 10, § 3, providing that taxes "shall be uniform upon the same class of subjects within the territorial limit of the authority levying the tax."

In banc. Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Kansas City against B. T. Whipple to collect a poll tax. There was a judgment for plaintiff, from which defendant appeals. Reversed.

C. O. Tichenor, A. M. Allen, and J. W. S. Peters, for appellant. H. C. McDougal, F. F. Rozzelle, and O. H. Dean, for respondent.

BRACE, C. J.

By section 39 of article 17 of the charter of Kansas City it is provided that: "Every male person over the age of twenty-one years who shall be a resident of Kansas City shall be assessed for each year in which a general election is held a poll tax of two dollars and fifty cents, which shall be collected and paid in the same manner as any other personal tax: provided, however, that if the person so assessed shall vote at the general city election held in the year for which such tax is levied, and shall receive a certificate from the recorder of voters that he has voted at such election, or shall otherwise establish in such manner as may be provided by ordinance that he has so voted, such certificate or proof shall operate to extinguish such tax for such year; but a failure to pay such tax shall not disqualify any person from voting. The first assessment of such poll tax shall be made for the year 1890. All moneys collected under this section shall be used for sanitary purposes." This is an appeal from a judgment of the circuit court of Jackson county, in favor of plaintiff against the defendant for the amount of the tax provided for in this section, and for which he is liable under its provisions, if the section is a valid law, in which case the judgment should be affirmed; and this is the only question raised upon the record herein.

1. It may be conceded, so far as legislative power is concerned, that this provision of the city charter has equal authority, within the limits of Kansas City, over its citizens, as a like enactment of the legislature would have over the citizens of the state at large, and that it ought to be upheld unless in conflict with the constitution of the United States or of this state. State v. Field, 99 Mo. 352, 12 S. W. 802. It may also be conceded that the legislative authority in this state has power to levy a capitation tax subject to the constitutional provision that the same shall be levied "for public purposes only," and "shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax." Const. art. 10, § 3; Glasgow v. Rowse, 43 Mo. 479; American Union Exp. Co. v. City of St. Joseph, 66 Mo. 675; Town of Tipton v. Norman, 72 Mo. 380. Taxes of this character in one form or another have been imposed by statute ever since the organization of the state government, as well as before. 1 Terr. Laws, p. 34, §§ 1, 9; 2 Laws Mo. 1825, p. 663, § 1; Rev. St. 1835, p. 529, §§ 1, 3; Rev. St. 1845, p. 927, §§ 1, 3; Rev. St. 1855, p. 1322, §§ 1, 5; Gen. St. 1865, p. 95, §§ 1, 7; Rev. St. 1879, §§ 6944, 6945, 6947; Rev. St. 1889, § 7809 et seq. These taxes have always been imposed on a certain class only of the citizens of the state, and it may further be conceded that the constitutional requirement of uniformity is satisfied whenever all citizens of the same class are taxed alike. City of St. Louis v. Bowler, 94 Mo. 630, 7 S. W. 434. Applying these principles to the charter provision in question, it must also be conceded that, if section 39 was stripped of its proviso, it would be a legitimate expression of the taxing power of the city, whereby an equal tax is levied upon all citizens of a certain natural and well-defined class. This uniformity is, however, at once destroyed by the proviso which, in effect, exempts from the payment of such tax every registered voter of that class who has voted at the general city election in the year in which the tax is levied, thus discriminating between the subjects of taxation in the same class in violation of the constitutional provision quoted. City of St. Louis v. Spiegel, 75 Mo. 145. In the language of Judge Cooley: "Inequality does not necessarily follow the restricting of a tax to a few subjects only, or to even a single subject. * * * But when, for any reason, it becomes discriminative between individuals of the class taxed, and selects some for an exceptional burden, the tax is deprived of the necessary element of legal equality, and becomes inadmissible. It is immaterial on what ground the selection is made, * * * for, if the principle of selection be once admitted, limits cannot be set to it, and it may be made use of for the purpose of oppression or even of punishment." Cooley, Tax'n (2d Ed.) pp. 169, 170.

2. The section in question is an apt illustration of the manner in which such a principle of selection may be used for the purpose of punishment, under the guise of a tax for "public purposes," for no one can read this charter provision as a whole without coming to the conclusion that its purpose is to impose a penalty upon the voters of Kansas City for not voting, rather than for the purpose of raising revenue to maintain a necessary function of the city government. In fact, the greater part of the argument of the learned counsel for the respondent is directed to the maintenance of the proposition that, to require a citizen to vote under penalty is a legitimate exercise of legislative authority in this state. In support of this proposition our attention has been called to the important character of the high trust committed to the voter, and the necessity of its discharge to the public welfare, and hence a duty to vote is deduced upon the part of all those on whom...