State v. Dix

• Decision Date: 06 November 1911
• Citation: 141 S.W. 445,159 Mo. App. 573
• Parties: STATE ex rel. GEORGE, City Collector, v. DIX.
• Court: Missouri Court of Appeals

141 S.W. 445

159 Mo. App. 573

STATE ex rel. GEORGE, City Collector, v. DIX.

Kansas City Court of Appeals. Missouri.

November 6, 1911.

Rehearing Denied December 14, 1911.

1. LICENSES (§ 32)—LICENSE TAX—ORDINANCE —COLLECTION.

Rev. St. 1909, §§ 9354, 9355, authorizing boards of aldermen of cities of the fourth class to provide by ordinance for the levy and collection of all taxes, licenses, wharfage, and other duties, and for neglect or refusal to pay the same, to fix such penalties as are or may be authorized by law or ordinance, confer authority on the board of aldermen to provide by ordinance

for the collection of the tax by action in addition to the penal remedy by fine, etc.

2. LICENSES (§ 32)—LICENSE TAX—REMEDIES.

Statutory remedies for the collection of ad valorem taxes are not applicable to license taxes, unless expressly made so in the statutes or ordinances relating to licenses, there being a distinction between an occupation or license tax and an ad valorem property tax.

3. TAXATION (§ 1)—NATURE OF "TAX."

A tax is not a debt founded on contract, but is an impost levied by the government operating in invitum.

4. LICENSES (§ 32)—BUSINESS LICENSE—COLLECTION —REMEDIES.

A general city ordinance provided that a special tax was levied on all business conducted within the city of $24 per year, to be collected and paid to the city treasurer as a part of the general revenue fund, the only remedy provided in the ordinance for enforcing the tax being a provision that any one attempting to do business without paying the tax, and upon conviction, should pay a fine of not less than $10 or more than $25 for each offense. Held, that such penal remedy was adequate and therefore exclusive, and that an action could not be maintained against a delinquent for the recovery of the tax unpaid.

Appeal from Circuit Court, Platte County; A. D. Burnes, Judge.

Action by the State, at the relation and to the use of William George, City Collector of the City of Dearborn, against M. L. Dix. Judgment for defendant, and plaintiff appeals. Affirmed.

Warren Rogers and Guy B. Park, for appellant. James H. Hull, for respondent.

JOHNSON, J.

Dearborn, a city of the fourth class, brought this action in a justice court to recover judgment in the amount of an occupation tax which defendant, the proprietor of a general store in that city refused to pay. A general ordinance of the city provided that "a special license or tax is hereby levied upon all business conducted within the city of Dearborn" of $12 for each six months or $24 per year and imposed on the city collector the duty of collecting such taxes in advance on the 1st days of January and July of each year and of paying over the proceeds to the city treasurer "as a part of the general revenue fund." The only remedy provided in the ordinance for enforcing the payment of the tax appears in the following section: "Any one attempting to do business without paying the above tax shall be arrested and upon conviction shall pay a fine of not less than $10.00, nor more than $25.00 for each offense." The present suit is not for the enforcement of such penalty, but is in the nature of an action in assumpsit to obtain a personal judgment for the delinquent tax.

The point at issue is whether the remedy provided in the ordinance is exclusive or merely cumulative. If exclusive, an action for a money judgment for the delinquent tax will not lie, but if cumulative the present suit was properly brought, and, as the facts are undisputed, the judgment should have been for the city. The circuit court held the remedy provided in the ordinance to be exclusive and rendered judgment for defendant. Plaintiff appealed.

The statutes (Rev. St. 1909, §§ 9354, 9355) authorize the boards of aldermen of cities of the fourth class "to provide by ordinance for the levy and...