City of Lebanon v. Zanditon

The opinion of the court was delivered by Greene, J.: The appellants were convicted of violating an ordinance of the city of Lebanon, a city of the third class, which provided for the levying and collecting of a license tax from persons doing business within the city. Among other things it provided that no transient merchant should be permitted to sell or offer to.sell at retail any articles of merchandise usually kept for sale by any merchant or manufacturer of the city within the limits of the city without first paying a license tax of ten dollars per day. The penalty imposed for a violation of this ordinance was a fine of not less than five dollars nor more than twenty-five dollars for each offense, and it was provided that each day’s violation should be considered a separate offense. The appellants introduced evidence tending to prove [274] that the city of Lebanon had a population of about 700; that the annual revenue of the city for the two precedingyears, which was sufficient to pay the expenses of the municipality, did not exceed $1000 per annum; that the resident merchants whose annual sales ranged from $7000 to $16,000, did not derive a net profit exceeding $1250 per annum; and that the appellants carried a stock averaging $5000. Based upon these facts, they contend that a license tax of ten dollars per day would amount to an annual tax of more than $3000 and is therefore unjust and unreasonable. The authority to impose and collect a license tax on merchants is plainly granted to cities of the third class by section 1127 of the General Statutes of 1901, and the only statutory restriction placed upon the council as'to the amount of such tax is that it shall be just and reasonable. (Gen. Stat. 1901, § 1128.) That this authority is to be used as a means of collecting revenue, as well as regulation, has been placed beyond dispute by the former decisions of this court. (Fretwell v. City of Troy, 18 Kan. 271; City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486.) If, therefore, the ordinance does not violate the restriction that it must be just and reasonable it should be upheld. In Fretwell v. City of Troy, supra, in construing a similar ordinance, it was said: “Regarded as a tax, therefore, it comes within the general proposition concerning taxation, that it knows no limit other than the necessities of the public treasury and the discretion of the taxing power.” (Page 274.) The expenses of the city for previous years, as shown by the evidence, while an item properly to be considered in determining the question of the reasonableness of the ordinance, is not conclusive. The expenses of municipalities are not fixed by any law, and are regulated only by the wants of its citizens and their ability to provide the means to satisfy them. It was said in [275] City of Lyons v. Cooper, 39 Kan. 324, 18 Pac. 296: “It must be a flagrant case of excessive and oppressive levy of a license tax before a court will interfere.” (Page 328.) This statement is well sustained by the authorities in this state. The reasoning of appellants, founded upon the facts in evidence, and following the reasoning of the Illinois courts in the cases of City of Peoria v. Gugenheim, 61 Ill. App. 374, and City of Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837, 31 L. R. A. 522 — that an annual license tax at the rate of ten dollars per day upon resident and transient merchants would be prohibitive, is fallacious. The appellants, being transient merchants, were not required to pay an annual license .tax at the rate of ten dollars per day throughout the year, but were only required to pay at that rate for the days they remained in business in the city. Such persons only remain in a town long enough to supply it with the kind of articles they sell, and they then move to another place. The appellants therefore failed to establish facts from which a court can say, within the rule stated in City of Lyons v. Cooper, supra, that the ordinance was unjust or unreasonable. It is also contended that the court erred in refusing to submit to the jury for their consideration the evidence offered by the appellants tending to show that the ordinance was unjust and unreasonable. We cannot agree with the' appellants in this contention. ’ The facts being undisputed, the question whether an ordinance is void for any reason is a question of law and must be' determined by the court. (1 Dillon’s Mun. Corp. § 327, and cases there cited.) Two other contentions are urged: (1) That the city has no power to punish by fine and imprisonment a violation of this ordinance; and (2) that all licenses issued by a city of the third class must be issued for a period of one year, and therefore the city had no authority to pass an ordinance levying a daily occupation [276] tax. Both of these questions were involved in Fretwell v. City of Troy, 18 Kan. 271. The first, while not discussed, was necessarily sustained by affirming' the judgment of fine and imprisonment. . This decision was made more than twenty years ago, and has never been questioned. The legislature has been in session many times since and no attempt has been made to change the statute. We must therefore conclude that it was intended to grant such authority. Upon the second proposition the court in that case said: “Nor does the provision that license taxes ‘shall be at such rate per year as shall be just and reasonable’ prevent a charge of so much per day. The purpose of that section was to prescribe the method of computing the amount of taxes, and that was by the time and not by the amount of business. It did not compel the council to exact a year's license in every case, or prevent them from graduating the amount of the license by the actual time employed in the business licensed.” (Page 276.) Other objections are urged to the validity of the ordinance, and also to some alleged errors at the trial, but they do not require special attention. The judgment is affirmed. Johnston, C. J., Burch, Mason, Smith, Graves, JJ., concurring.