| Mo. Ct. App. | Mar 2, 1903
Lead Opinion
This is a suit of the plaintiff against defendant, a corporation doing business in Kansas City, for merchants’ and ad valorem and personal property taxes, for the years 1898,1899 and 1900. The defendant denied its liability for such tax, on the ground that it was not engaged in the business of a merchant, but that of a manufacturer. The trial court found for defendant and plaintiff appealed.
The case turns upon a proper definition of the term “merchant.” By section 78 of article 5 of the charter of Kansas City the word “merchant” when used in such charter, ‘ ‘ shall be held to mean and include every person or co-partnership of persons, who shall deal in the selling of goods, wares and merchandise at any store, stand or place occupied for that purpose in Kansas City.” Section 8540, Revised Statutes 1899— the same as section 6894, Revised Statutes-1889 — defines a merchant as follows: “Every person, corporation or co-partnership of persons who shall deal in the selling of goods, wares and merchandise, including clocks, at any store, stand or place occupied for that purpose, is declared to be -a merchant.” Substantially, the two definitions are the same. These definitions are somewhat different from that of the common law, and as such, of course, must govern. The question has been adjudicated in this State, the latest of which, under the Constitution, we are bound to follow. The last case that we have been able to find is that of State v. Rich
In State v. West, 34 Mo. 424" court="Mo." date_filed="1864-03-15" href="https://app.midpage.ai/document/state-v-west-8001484?utm_source=webapp" opinion_id="8001484">34 Mo. 424, it was held: “To be a merchant in the sense of the law, the dealer must have on hand goods, wares, and merchandise ready for sale and present delivery, and must also actually deal in the selling of the same.. One who manufactures and supplies goods alone to the previous order of his customers, .although he keeps on hand, but not for sale, the materials from which the manufactured articles are produced, is not a merchant within the meaning of the statute. ’ ’ In State v. Whittaker," 33 Mo. 457" court="Mo." date_filed="1863-03-15" href="https://app.midpage.ai/document/state-v-whittaker-8001330?utm_source=webapp" opinion_id="8001330">33 Mo. 457, the court held: “A merchant, under the statute, is a person who deals in the selling of goods, wares .and merchandise, at any store, stand, or place occupied for that purpose. It is immaterial if the defendant, by his labor, changed the form of the goods sold; if he deal in the selling of the goods at a store, he is a merchant for the purposes of the act.” And it was further held that it was “immaterial that the store, stand, or place may have been also occupied for some other purpose. ’ ’
In Kansas City v. Butt, 88 Mo. App. 237" court="Mo. Ct. App." date_filed="1901-04-01" href="https://app.midpage.ai/document/kansas-city-v-butt-6619989?utm_source=webapp" opinion_id="6619989">88 Mo. App. 237, the question before the court was different from that involved in this case. It was there held that the defendant was a manufacturer. There, the city was attempting, under its charter and ordinances then in force, to impose an occupation tax on the defendant. The facts showed that defendant was not a dealer in ice but a manufacturer, and that its products were sold before manufacture to one person, the court holding that the charter imposed no such tax upon manufacturers. There, the court was not called upon to distinguish between the common law and the statutory definition of the word “merchant.” The question was whether the defendant was a dealer, not whether he was a merchant. It does, not follow that because a merchant is a dealer, a dealer is also a. merchant. A merchant must have a store, stand, or other place where he sells his goods. A dealer need not have such store, stand, or place to keep and sell his goods. Tie may buy and sell without such aids to his business. A merchant, under the definition, is not required to be a purchaser; but the dealer, at common law, is both a buyer and seller. The plaintiff city recognized the distinction by imposing an occupation tax on ice dealers and not upon merchants.
We think the court was in error in holding that because the defendant was a manufacturer, as such he
Rehearing
OPINION ON MOTION FOB. REHEARING.
The first ground for rehearing is, that as plaintiff asked no instructions in the trial court, it therefore can not be heard on a question of law, citing Wischmeyer v. Richardson, 153 Mo. 556" court="Mo." date_filed="1900-01-23" href="https://app.midpage.ai/document/wischmeyer-v-richardson-8013422?utm_source=webapp" opinion_id="8013422">153 Mo. 556, and other like cases. These authorities have no applica-' tion to the case at bar, for the reason that the respondent offered a declaration which was given by the court that under the pleadings and proof the plaintiff was not entitled to recover. The giving of this declaration of law sufficiently indicated the theory upon which the cause was tried, and the ruling here is in harmony with the ruling in the cases cited.
The second point relied on is, that the city charter requires that the tax be imposed on goods kept on hand “during the three months next before the first day of January of such year,” whereas the petition sues for taxes on goods alleged to have been held on the first day of January. This statement is true, but the evidence shows that the assessment was duly made-. This objection was raised on the trial at the offer of the plaintiff to introduce evidence that the assessment had been made, but it was overruled and no exception was taken to the ruling of the court; and the assessment and the action of the board of appeals was received in evidence. The assessment and the action of the board of appeals in raising the assessment were judicial acts, and as such were conclusive. State ex rel. v. Hoyt, 123 Mo. 348" court="Mo." date_filed="1894-06-19" href="https://app.midpage.ai/document/state-ex-rel-wyatt-v-hoyt-8011415?utm_source=webapp" opinion_id="8011415">123 Mo. 348. At most there was only a variance by which defendant, if misled, had its remedy under the statute. Failing to avail itself of the provisions of.section 655, Revised Statutes 1899, the variance was waived.
Motion for rehearing' overruled.