The City of Topeka v. Jones
| Decision Date | 07 July 1906 |
| Docket Number | 14,739 |
| Citation | 74 Kan. 164,86 P. 162 |
| Parties | THE CITY OF TOPEKA v. GEORGE H. JONES |
| Court | Kansas Supreme Court |
Decided June 9, 1906,
January 1906.
Appeal from Shawnee district court; ALSTON W. DANA, judge. First opinion filed June 9, 1906. Affirmed. Rehearing allowed July 7, 1906. Second opinion filed November 10, 1906. Reaffirmed.
Judgment reversed.
SYLLABUS BY THE COURT.
1. EXPRESS COMPANIES--License Tax--City Ordinance Valid. Under the provisions of section 134 of chapter 122, Laws of 1903, section 54 of ordinance No. 2384 of the city of Topeka is valid, and the license tax imposed by such ordinance upon express companies and agencies conducted, carried on or operated within the limits of the city may be collected from the owner or managing agent of such express company who conducts such business within the limits of the city.
2. EXPRESS COMPANIES--Consignment to be Delivered within the City Not Essential. The fact that an express company or agency does not receive packages from consignors within the city to be delivered for hire to consignees within the city does not relieve it from the payment of such license tax.
3. EXPRESS COMPANIES--What Constitutes Business Conducted within the City. The receiving of packages within the limits of the city from consignors, to be delivered by express to consignees without the city but within the state of Kansas, and collecting the charges therefor, or the receiving and delivering of packages sent by express through other express agencies in the state but out of the city, and delivering the same to consignees within the city and collecting the charges therefor, is conducting and carrying on an express agency within the limits of the city.
4. CRIMINAL LAW--Failure to Pay License Tax--Penalty. The owner or managing agent of such express agency who shall fail or refuse to pay such license tax on demand when due may be arrested and fined as provided by the ordinance of the city.
Frank G. Drenning, city attorney, and W. C. Ralston, assistant city attorney, for appellee.
Eugene S. Quinton, for appellant; John T. O'Keefe, and A. B. Quinton, of counsel.
The appellant was arrested, tried and convicted in the police court of the city of Topeka for a violation of section 54 of ordinance No. 2384 of that city. He appealed to the district court of Shawnee county, where he was again convicted and fined. He now appeals to this court.
The authority of the city to levy and collect license taxes is found in section 134 of chapter 122, Laws of 1903, and the portion thereof applicable to this case reads as follows:
"The mayor and council may levy and collect a license tax upon and regulate any and all callings, trades, professions and occupations conducted, pursued, carried on or operated within the limits of such city, including . . . express companies and agencies."
Section 54 of ordinance No. 2384 of the city of Topeka is as follows:
"The sum of $ 100 per year on the business and occupation of express companies, corporations or agencies, in receiving packages in this city from persons in the city and transmitting the same by express from this city within this state to persons and places within this state, and receiving in this city packages by express transmitted within this state from persons and places in this state to persons within this city and delivering the same to persons in this city, excepting the receipt, transmission and delivery of any such packages to and from any department, agency or agent of the United States, and excepting the receipt, transmission and delivery of any such packages which are interstate commerce; the business and occupation of receiving, transmitting and delivering of the packages herein excepted is not taxed hereby."
The agreed statement of facts and the uncontroverted evidence show that the United States Express Company at the time charged had and maintained two offices in the city of Topeka; that Jones was the managing agent of the company in the city; that in the conduct of the express business of the company Jones received packages in the city of Topeka to be forwarded to other express offices in other cities and towns of the state of Kansas, as well as to other such offices without the state; that he received packages sent by express from other towns and cities within the state and delivered the same to the consignee within the city of Topeka; and that he collected and received within the city the express charges for such business, but he neither received nor delivered any packages consigned within the city to consignees within the city. Also, that he had neglected and refused to pay the license tax required of express companies and agencies under section 54 of such ordinance.
Several assignments of error are made, but only one question is presented for our consideration, viz., Is the receiving and delivering of packages and the collection of express charges, as carried on by appellant, a "business," "calling" or "occupation" conducted, pursued, carried on or operated within the limits of the city of Topeka? It certainly cannot be regarded as a "profession" within the meaning of the statute. It probably would not be regarded as a trade, although this word, in approved usage, has many shades of meaning; as used in the old adage--"every man to his trade"--it is synonymous with "calling" or "occupation."
If appellant had been asked, "What is your calling?" or "What is your occupation?" it seems his only answer must have been, "I conduct an express agency." The statute quoted itself seems to define express companies and agencies as callings or occupations by including them in the class as callings or occupations. Indeed, it would be a strange use, or rather misuse, of language if an act of the legislature should authorize the imposition of a tax upon all horned cattle, including horses, or upon all draft animals, including poodle dogs. As in concrete numbers only things of the same kind can be added, so like things, not unlike things, are included in a class. If this be true, the meaning of the above statute and the ordinance enacted thereunder seems apparent.
The word "business" has, as used, different meanings. Webster's International Dictionary gives seven definitions of it, only two of which are possibly applicable to the use of the word in the statute and ordinance cited. They are: (1) "Any particular occupation or employment engaged in for livelihood or gain, as agriculture, trade, art, or a profession." (2) "Financial dealings; buying and selling; traffic in general; mercantile transactions." The appellant seems to contend that the latter, and the city that the former, of these meanings should be adopted in interpreting the statute and ordinance. As before remarked, the contention of the city seems to accord with the legislative intent. In no other sense of the word could the "business" of express companies and agencies be included in a calling, trade, profession or occupation, as the language is used in the statute. "Calling," "occupation," "trade" and "profession" are given by Webster as synonyms of "business." The words "business" in the ordinance and "businesses" in the statute are used with this meaning. The plural form of the word also supports this conclusion. Common usage also accords with it. Such taxes are usually called occupation taxes.
On the other hand it would be anomalous in both our state and national polity to tax "business" in the other sense contended for. Business in that sense is not regarded as requiring a license or as subject to taxation, unless it be a business of immoral or dangerous tendencies, which kind is licensed and taxed as a matter of police regulation.
Many authorities are cited, in cases relating to interstate commerce, that a state has no power to tax a business performed partly within one state and partly within another. In other words, although a state may tax intrastate business it cannot tax interstate business. The exclusive power is, by the constitution of the United States, delegated to congress to regulate interstate commerce; and the power to tax is a power to interfere with--to regulate. Hence, if any state could tax a business conducted partly within its borders and partly within the borders of another state it would interfere with and encroach upon the power delegated to congress.
Commerce is "business" under the second definition given above. It relates to the commercial transaction more than to the calling or occupation, and any burden placed upon the income of commerce between the states by local authority, or any impediment to its freedom, is an entrenchment upon the power of congress.
License taxes are occupation taxes (Fretwell v. City of Troy, 18 Kan. 271) and are imposed by municipalities by authority of the legislature for the purpose of equalizing the burden of municipal expense. Many...
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