S. S. Kresge Co. v. City of Bluefield

• Decision Date: 28 January 1936
• Docket Number: 8364.
• Citation: 183 S.E. 601,117 W.Va. 17
• Parties: S. S. KRESGE CO. et al. v. CITY OF BLUEFIELD et al.
• Court: West Virginia Supreme Court

183 S.E. 601

117 W.Va. 17

S. S. KRESGE CO. et al. v. CITY OF BLUEFIELD et al.

No. 8364.

Supreme Court of Appeals of West Virginia.

January 28, 1936

Submitted January 8, 1936.

Syllabus by the Court.

The taxing power of a municipality depends upon legislative authority expressed in unmistakable terms.

Appeal from Circuit Court, Mercer County.

Suit by the S. S. Kresge Company and others against the City of Bluefield and others for an injunction. From a ruling granting a permanent injunction, defendants appeal.

Affirmed.

Sidney J. Kwass and Richardson & Kemper, all of Bluefield, for appellants.

Sanders & Day, of Bluefield, for appellees.

LITZ Judge.

This is a suit in equity by numerous retail merchants in the city of Bluefield against the municipality and its officials to enjoin the enforcement of a city ordinance, imposing a consumer's sales tax (similar to the state consumer's sales tax, chapter 84, article 2, Acts 1935) of 1 per cent on the sale of merchandise at retail and the dispensing of certain selected services.

Section 3 of the ordinance provides: "For the privilege of engaging in the business of selling tangible personal property at retail and of dispensing certain selected services defined in Section 6 of this ordinance, a retail dealer shall collect from a purchaser a tax of one per cent of the gross proceeds of each separate transaction, and shall pay the amount collected to the treasurer in accordance with the provisions of this ordinance." The circuit court granted a permanent injunction, and the defendants appeal.

It is conceded, according to universal conception, that a municipality may levy taxes only as authorized by the Legislature. The issue, therefore, is whether the tax in question is permitted by the city charter or general statute. The validity of the ordinance depends upon sections 44 and 72 of the charter, and section 13, article 4, chapter 8, Code 1931. Section 44 of the charter reads: "The board of directors may, by ordinance, require city license for persons conducting and carrying on any business or vocation in the city for which the state may now or hereafter require license." Section 13, article 4, chapter 8 of the Code which is of similar import, follows: "Whenever anything for which a state license is required, is to be done within such town, the council may, unless prohibited by law, require a municipal license therefor, and may impose a tax thereon for the use of the town."

It is asserted that "license," as employed in the charter and the statute, comprehends all forms of tax other than direct property levies. In support of this contention counsel for defendants cite, with especial emphasis, Amos v. Gunn, 84 Fla. 285, 94 So. 615, 640, and Heriot v. City of Pensacola, 108 Fla. 480, 146 So. 654. The first case involved the constitutionality of a statute requiring gasoline dealers to pay a tax of one cent a gallon on sales of gasoline. The court held that section 5, article 9, of the Florida Constitution, providing that the "Legislature may also provide for * * * a tax on licenses," is not a limitation upon the inherent power of the Legislature to impose excise, occupational, or other taxes that are in the nature of license or privilege taxes, and that the constitutional provision is an express declaration of power already existing in the legislature. In the opinion of the court, it is said: "The objection that the tax of 1 cent per gallon is an "excise tax,' and therefore not within the two classifications [in the Constitution] of ad valorem and license taxes, is not sound, because an "excise' tax is one laid on licenses to pursue certain occupations, corporate privileges, or sales or consumption of commodities"-citing Cooley's Constitutional Limitations (7th Ed.) 680, and other authorities.

The Pensacola Case involved a city ordinance imposing a consumer's sales tax upon the purchase of gas electricity, water, and telephone service. The ordinance was enacted pursuant to provisions of the municipal charter, conferring upon the city the authority to levy, assess, and collect...