Kansas City v. Whipple

• Decision Date: 23 December 1896
• Citation: 38 S.W. 295,136 Mo. 475
• Parties: Kansas City v. Whipple, Appellant
• Court: Missouri Supreme Court

38 S.W. 295

136 Mo. 475

Kansas City v. Whipple, Appellant

Supreme Court of Missouri

December 23, 1896

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Reversed.

A. M Allen and J. W. S. Peters for appellant.

(1) The section is unconstitutional because it is a tax which is not uniform in its operation over the same class of subjects. Constitution of Missouri, sec. 3, art. 10; Cooley on Taxation, p. 172; Cody v. Spiegel, 75 Mo. 145; Haus v. Louisville, 5 Dana, 28; Pruitt v Com'rs, 94 N.C. 709; Mayor v. Altrop, 5 Cold. (Tenn.) 555; Cooley, Const. Lim., p. 607. (2) It is unconstitutional because it is an unwarrantable discrimination; it makes an arbitrary classification with respect to the subjects over which it operates, based upon no reason suggested by a difference in the situation or circumstances disclosing the necessity or propriety of any different legislation in respect to them; it is a special law in its effect and operation. Const. Mo., sec. 53, art. 4; Cooley, Const. Lim., p. 391; State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Herrmann, 75 Mo. 345; State ex rel. v. County Court, 89 Mo. 237; State v. Sheriff, 48 Minn. 236; Smith v. McDermott, 93 Cal. 421; Brooks v. Hyde, 37 Cal. 366; Utsey v. Hyatt, 30 S.C. 360; State v. Board of License, 48 N. J. L. 438; State v. Board of Education, 55 Cal. 489; Desmond v. Dunn, 55 Cal. 242. (3) The right to refrain from voting is a part of the right of suffrage, as granted by the constitution. Sec 9, art. 2, Const. Mo.; Sec. 4, art. 8, Const. Mo. (4) It is unconstitutional because it is in effect a regulation of the elective franchise which is not uniform, nor reasonable, nor impartial, and because it is a regulation not touching the time, place or mode of exercising this franchise, but affecting the franchise itself. Cooley, Const. Lim., p. 620; Blair v. Ridgeley, 41 Mo. 7; 1 Madison's Writings, 178; 3 Hist. of Republic (Alex. Hamilton), 24; Monroe v. Collins, 17 Ohio St. 665; Capen v. Foster, 12 Pick. 485; State v. Adams, 2 Stewart, 239; Page v. Allen, 58 Pa. St. 347; Patterson v. Barlow, 60 Pa. St. 54; Davis v. School District, 44 N.H. 398; Rison v. Farr, 24 Ark. 161; Wisconsin v. Williams, 5 Wis. 308; Davies v. McKerby, 5 Neo. 169; McCafferty v. Guyer, 59 Pa. 139; Thomas v. Ewing, 1 Brewst. 103. (5) Since the statute imposes a tax upon the citizen, it should have no favors shown it and should not be sustained upon any vague or doubtful interpretation. Sutherland Stat. Const., secs. 362 and 365; Endlich, Int. Stat., sec. 352; Dean v. Charlton, 27 Wis. 522; Powers v. Barney, 5 Blatch, 202; U. S. v. Wigglesworth, 2 Story, 359; U. S. v. Watts, 1 Bend. 580; Railroad v. State, 62 Miss. 105; Mayor v. Hartridge, 8 Ga. 23; Crosby v. Brown, 60 Barb. 548; Dean v. Charlton, 27 Wis. 522; Shawnee Co. v. Carters, 2 Kan. 115; Bensley v. Water Co., 13 Cal. 306; Sewall v. Jones, 9 Pick. 412. (6) It is a peculiar piece of legislation; peculiarities in legislation require critical investigation before approval. Page v. Allen, 58 Pa. St. 353. (7) It is an insult to the patriotism of every citizen of Kansas City; it is political levity.

C. O. Tichenor also for appellant.

F. F. Rozzelle for respondent.

(1) The constitution was the only limitation upon the city in framing a charter for its government. State ex rel. v. Field, 99 Mo. 352. (2) The law should not be declared unconstitutional unless it conflicts with some specific clause of the constitution. Co. Ct. v. Griswold, 58 Mo. 175; State, etc., v. Railway, 48 Mo. 468; Hamilton v. Co. Ct., 15 Mo. 3; Kelley v. Meeks, 87 Mo. 400. (3) The charter provision is not in conflict with section 3, article 10 of the constitution. City v. Bowler, 94 Mo. 630; Glasgow v. Rowse, 43 Mo. 479; County v. Coleman, 99 Pa. St. 6; People v. Brooklyn, 4 Cow. 419; Faribault v. Misener, 20 Minn. 326. In case of poll tax, the law generally, as in case of the city charter, defines the purposes to which the fund so raised shall be applied. State ex rel. v. Cobb, 8 S.C. 123; Schaffer v. Robinson, 59 Ala. 195; Woodward v. Isham, 43 Vt. 123. (4) Nor is it in conflict with section 9 of article 2, or section 4 of article 8 of the constitution. (5) The provision here involved is consonant with public policy in that it enlarges participation in public affairs.

H. C. McDougal, city counselor, and O. H. Dean also for respondent.

OPINION

In Banc.

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 ex rel. 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, sec. 3; Glasgow v. Rowse, 43 Mo. 479; Am. Union Express Co. v. St. Joseph, 66 Mo. 675; 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, pp. 34 and 37, secs. 1 and 9; 2 Laws of Mo. 1825, p. 663, sec. 1; R. S. 1835, p. 529, secs. 1 and 3; R. S. 1845, pp. 927 and 928, secs. 1 and 3; R. S. 1855, pp. 1322 and 1324, secs. 1 and 5; G. S. 1865, pp. 95 and 96, secs. 1 and 7; R. S. 1879, secs. 6944, 6945, 6947; R. S. 1889, sec. 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. 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. 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 even to 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 can not be set to it, and it may be made use of for the purposes of oppression, or even of punishment." Cooley on Taxation [2 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 the right is conferred which it is argued ought to be enforced...