Mercantile Incorporating Company v. Junkin

• Decision Date: 14 December 1909
• Docket Number: 16,426
• Parties: MERCANTILE INCORPORATING COMPANY ET AL., APPELLANTS, v. GEORGE C. JUNKIN, SECRETARY OF STATE, APPELLEE
• Court: Nebraska Supreme Court

123 N.W. 1055

85 Neb. 561

MERCANTILE INCORPORATING COMPANY ET AL., APPELLANTS, v. GEORGE C. JUNKIN, SECRETARY OF STATE, APPELLEE

No. 16,426

Supreme Court of Nebraska

December 14, 1909

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.

AFFIRMED.

John. W. Battin, W. W. Slabaugh and Sullivan & Rait, for appellants.

William T. Thompson, Attorney General, and Grant G. Martin, contra.

OPINION

ROOT, J.

This is an action to recover back an occupation tax paid by plaintiff under protest to defendant the secretary of state. Defendant prevailed on his general demurrer to the petition, and plaintiff appeals from a judgment dismissing his action.

In 1909 the legislature by chapter 25, laws 1909, provided "Section 1. No corporation heretofore or hereafter incorporated under the laws of this state, or of any other state, shall do or attempt to do business by virtue of its charter or certificate of incorporation, in this state without a state occupation permit therefor." The title to the act is "An act providing for an annual occupation fee upon corporations, and issuing a permit therefor, providing for the enforcement of the same, providing for settling the affairs of the corporations where said fee has not been paid, and to provide a penalty for the violation thereof." In the act corporations are divided into nine classes according to their capital stock, and required to pay from $ 5 to $ 200 per annum.

Plaintiff asserts that the act violates section 1, art. IX of the constitution. The general principles underlying the subject of taxation have been often stated and thoroughly discussed by text-writers and by courts of last resort. An extended investigation of the topic is unnecessary for an understanding of this case, and will not be attempted. It may safely be said that, in the absence of constitutional limitations, every species of property within the jurisdiction of the state, all privileges and franchises existing, and every trade or vocation exercised therein may be taxed by the legislature for the support of the state. State v. Board of Comm'rs, 4 Neb. 537; Society for Savings v. Coite, 6 Wall. (U.S.) 594, 607, 18 L.Ed. 897. Section 1, art. IX of the constitution, is as follows: "The legislature shall provide such revenue as may be needful, by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property and franchises, the value to be ascertained in such manner as the legislature shall direct, and it shall have power to tax peddlers, auctioneers, brokers, hawkers, commission merchants, showmen, jugglers, innkeepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, venders of patents, in such manner as it shall direct by general law, uniform as to the class upon which it operates." Counsel argue that the enumeration of 16 occupations upon which the legislature is authorized to impose an occupation tax, "by the universal rule of interpretation, excludes by necessary implication all occupations not enumerated; and this rule of construction has been applied by the supreme court of Illinois to this identical constitutional provision which was borrowed from the Illinois constitution of 1870." A contrary rule, supported it seems to us by reason and sound public policy, was announced in State v. Board of Comm'rs, 4 Neb. 537. Judge GANTT'S opinion is directly in point, and has been cited with approval and followed many times in this court. State v. Board of Comm'rs, 8 Neb. 124; Shaw v. State, 17 Neb. 334, 22 N.W. 772; State v. Bennett, 19 Neb. 191, 26 N.W. 714; State v. Vinsonhaler, 74 Neb. 675, 105 N.W. 472. Statements found in Banta v. City of Chicago, 172 Ill. 204, 50 N.E. 233, cited by plaintiff, apparently support its contention; but the point discussed in the quotation from that case was not decided by the Illinois court. In Price v. People, 193 Ill. 114, 61 N.E. 844, Mr. Justice Boggs, who wrote the opinion in Banta v. City of Chicago, supra, says that the canon of construction announced in his earlier opinion does not apply to the subject of taxation and was inadvertently stated by him. Plaintiff has cited no other authorities to sustain its argument upon this subject, and we are content to abide by our former decisions.

Plaintiff argues that the tax under consideration is imposed on corporate franchises, and is void because not levied upon a valuation. Franchises, if taxed under subdivision 1, sec. 1 art. IX of the constitution, must be taxed according to their value, but the legislature may, in the exercise of the taxing power, levy occupation taxes upon persons corporate or otherwise engaged in business or in the various vocations within the state, and in that event the element of value need not control. State v. Boyd, 63 Neb. 829, 89 N.W. 417; Rosenbloom v. State, 64 Neb. 342, 89 N.W. 1053; City of Newton v. Atchison, ...