The Wichita Produce Company v. The City of Wichita

• Decision Date: 07 October 1922
• Docket Number: 23,900
• Citation: 209 P. 667,112 Kan. 28
• Parties: THE WICHITA PRODUCE COMPANY et al., Appellees, v. THE CITY OF WICHITA et al., Appellants
• Court: Kansas Supreme Court

209 P. 667

112 Kan. 28

THE WICHITA PRODUCE COMPANY et al., Appellees, v. THE CITY OF WICHITA et al., Appellants

No. 23,900

Supreme Court of Kansas

October 7, 1922

Decided July, 1922.

Appeal from Sedgwick district court, division No. 3; JESSE D. WALL judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. OCCUPATION TAX--Use of Delivery Wagons and Trucks--Valid City Ordinance. An ordinance of a city of the first class, levying a license tax on all trades, businesses and occupations in the city, in which or incident to which delivery wagons or trucks are employed, is not necessarily void for arbitrariness of classification or unlawful discrimination.

2. SAME. The tax may be graded according to the number of vehicles employed, without becoming a vehicle tax.

3. SAME. An ordinance of the city of Wichita, of the character described, upheld.

Robert C. Foulston, and George Siefkin, both of Wichita, for the appellants.

Earl Blake, W. A. Blake, Harold L. Blake, and J. E. Alexander, all of Wichita, for the appellees.

OPINION

BURCH, J.:

The action was instituted by a number of Wichita merchants, to enjoin enforcement of an occupation-tax ordinance. The injunction was granted, and the city appeals.

The ordinance reads in part as follows:

"SECTION 1. That there be and hereby is levied and assessed upon each, every and all trades, businesses and occupations carried on, conducted or maintained in the city of Wichita, Kansas, in which, or incident to which, there is used and operated, used or maintained, any delivery wagon or wagons, truck or trucks, an occupation tax equal to the following amounts:

"(a) For each such business, trade or occupation in which a delivery wagon or wagons, or truck or trucks of one-half ton or less is used, the annual fee of $ 5.00 per year."

Then follows a graduated schedule, concluding with a tax of $ 11 on those businesses in which trucks are used of a capacity of four tons or more, and a provision for a cumulative tax according to schedule, for total rated tonnage.

The evidence was that the plaintiffs deal in fruits, produce, hardware, groceries, and other articles of merchandise, and make deliveries of commodities by trucks. There are, however, merchants in the city engaged in the same kinds of business who make deliveries by other means than wagon or truck, and some who do not deliver goods to customers otherwise than at their stores. The ordinance was attacked as violative of the federal and state constitutions, because discriminatory, and as an attempt to impose a license fee on motor vehicles contrary to the provisions of chapter 69 of the Laws of 1921. Section 10 of that act exempts from municipal license fees all motor vehicles whose owners have complied with the state registration and licensing law.

The state law is limited to the subject expressed in its title--the registration of automobiles and other motor vehicles. For such registration a state license fee is imposed. The subject was one which demanded regulation of uniform operation throughout the state, and the statute is necessarily exclusive within its field. It does not, however, embrace the subject of city license taxes on business or occupation, and the question is whether the tax levied by the ordinance falls within that class.

In determining the amount of a business or occupation tax, the city may use property as a measure, without imposing a tax on the property itself. (City of Newton v. Atchison, 31 Kan. 151, 1 P. 288.) Thus a tax on the business of selling may be measured by the gross amount of sales, and not be a tax on...