Viquesney v. City of Kansas

ON MOTION FOR REHEARING. The appellant in his motion for rehearing calls attention again to the language of Clause 4, Section 1, Article 3, of the charter, which provides for the licensing and regulating of merchants and various callings, and claims that this court overlooked the significance of that clause of the charter. Appellant argues that while he is a merchant he is not specifically mentioned as taxable in the charter of Kansas City; that is, a gasoline merchant is not enumerated among the numerous dealers of various kinds specifically set forth in that class, and that, therefore, being merely classed as a merchant without other specific designation, "the only way that Kansas City could exact a license tax from him would be to place him in a class comprehending all the other merchants not specifically mentioned as taxable in classes by themselves in said charter."

The effect of this argument is that the city could not tax him as a gasoline dealer as distinct from merchants dealing in other commodities.

The clause of the charter mentioned concludes with this provision:

"And in the exercise of the foregoing powers, to divide thevarious occupations, professions, trades, pursuits, corporations and other institutions and establishments, articles, utilities and commodities into different classes."

This provision, by punctuation and context, is connected with all the other provisions in Clause 4. "The foreging powers" refers to the powers, already mentioned at the beginning of the section, to tax and regulate. The "various occupations" mentioned is not limited and refers to all that are enumerated, including merchants. It could mean nothing else and have any significance. The various occupations mentioned in this concluding provision cover everything conceivable that would be subject to taxation.

It is not contended that that provision of the charter is unconstitutional, or that it is in conflict with Section 8702, Revised Statutes 1919, which provides that municipal corporations shall have no power to impose a license tax upon any avocation, etc., unless the same is specifically named as taxable in the charter. Therefore Kansas City had the power to divide merchants into different classes for the purpose of taxation, and did so in the ordinance complained of and others mentioned in the opinion.

Therefore we conclude that the motion for rehearing is without merit, and it is accordingly overruled.