296 F. 899 | 8th Cir. | 1924
Lead Opinion
The plaintiff brought suit against the defendant, the city of' St. Louis, Mo., to recover the amount of a tax that the defendant had levied against it, and which the plaintiff alleged was illegal and was'paid by it under legal compulsion. A demurrer was sustained to the petition, and, as the plaintiff declined to amend its petition, its suit was dismissed, and it prosecutes a writ of error.
The question which has been presented is whether the tax as described in the petition, substantially burdens and regulates commerce
We are precluded from determining the real nature of the tax as expressed by the ordinances of St. Louis, because we are confined, by reason of the case having been determined on the averments of the plaintiff’s petition, to the nature of the tax, as that petition describes it. The petition alleges this percentage tax to have been levied on the amount of all sales made by plaintiff within the year, and that, by the ordinances, it was assessed directly upon plaintiff’s gross receipts or sales, specifically as such. The commerce clause of the United States Constitution forbids a state, or a municipal corporation therein, from levying a tax on the business of selling goods in interstate or foreign commerce, measured by a percentage of the gross transactions in such commerce, because such a tax is a direct burden on and regulation of such commerce, as it withholds from every transaction, for the use of the state, of a part of every dollar received. Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 295, 296, 38 Sup. Ct. 126;
The defendant does not question the invalidity of such a tax, but contends that this is an occupational tax, levied against the defendant
The defendant cites other cases, such as Oliver Iron Co. v. Lord, 262 U. S. 172, 43 Sup. Ct. 526, 67 L. Ed. 929, to demonstrate that a state may impose an occupation tax on the business of mining or manufacturing in the state, and Pullman Co. v. Richardson, 261 U. S. 330, 43 Sup. Ct. 366, 67 L. Ed. 682, to the effect that the state may impose a fair tax on property in the state, and in so doing may use the gross receipts from both intrastate and interstate commerce as a measure of value, but they have no application to the facts in this case.
The conclusion is that the tax described in the plaintiff’s petition was not a property tax, nor an occupation tax for the privilege of conducting a manufacturing business in St. Louis, but was, as to some of the sales made by the plaintiff, a direct burden upon interstate commerce, beyond the power of the city to impose. The demurrer of the defendant to the petition should have been overruled, and the judgment is reversed, and the case remanded.
62 L. Ed. 295.
Concurrence Opinion
I concur in the result, upon the sole ground that the cause was determined on a demurrer to the complaint, and the complaint fails to show that the payments, sought to be recovered by this action, were authorized to be collected by the city as a license or occupation tax of a manufacturer.
In its answer the city may show the object of the tax in issue, and also set out, and at the trial introduce in evidence the ordinance of the city, under authority of which the taxes sought to be recovered by this suit were collected. When the issues are thus made up, the questions of law involved can be properly determined.