29 Kan. 364 | Kan. | 1883
The opinion of the court was delivered by
This was an action brought in the district court of Harvey county, by J. E. McGrath and sixty-
“1. That the plaintiffs herein are improperly joined, and have no such community of interests herein as legally entitles them to join in this action.
“ 2. That the facts stated in the petition herein filed are not sufficient to constitute a cause for the injunction herein prayed for, and are not sufficient in law to justify the issuance of the same.
“ 3. That the facts stated in said petition, as the grounds asking for said injunction, are not true.”
The defendants also, at the same time, filed an affidavit of the city attorney denying the truth of all the allegations of the plaintiff's petition, except such as were consistent with the validity of the ordinance of the city levying the said taxes, and the right of the city to collect the same. On the hearing of this motion, both parties introduced evidence; and at the conclusion thereof, the court sustained the motion' and ■ dissolved the injunction. To this ruling of the court the plaintiffs excepted, and now bring the case to this court for review. Did the court below err?
“Approved June 21, 1882.— H. W. Hubbard, President of Council and acting Mayor, per E.
Attest: J. W. Edwards, City Clerk.”
This ordinance was properly published, and was afterward copied into the book of ordinances, and the copy was duly signed by Hubbard as acting mayor. During all this time ^the mayor was absent from the city. At the next regular meeting of the city council, the minutes of the special meeting at which the ordinance was passed were read, and approved by the council. .The ordinance, as adopted at said special meeting, was entitled “An ordinance to provide for a business-license tax,” and it levied a license tax upon almost every kind of business that was then or might thereafter be transacted or carried on within the city limits. The ordinance was divided into thirty-one sections, and generally a separate section was devoted to each separate class of business as classified by the city council, though sometimes two or three classes of business were provided for in the same section. Each separate class of business, as classified by the city council, generally included several kinds of business, though sometimes a separate class included only one kind of business. The ordinance levied different amounts of taxes upon different classes of business, and in some cases provided different ways for fixing and ascertaining such amounts. Thus merchants generally, whose average stock of goods did not exceed $1,000, were taxed at only $5 per annum, while druggists having the same amount of stock were taxed at $15 per
The plaintiffs claim that this ordinance is void for the following reasons: (1.) Because it was not passed at a regular meeting of the council. (2.) Because the meeting was not called by the mayor or acting mayor upon the written request of three members of the council, independent of the acting mayor. (Comp. Laws of 18^9, ch. 19, § 20.) (3.) Because the ordinance was not signed by either the mayor or acting mayor. (4.) “Because it is inequitable, oppressive, unjust, unreasonable, tyrannical, in restraint of trade, and inflicts punishment unusually cruel and unwarranted.” (5.) “ Because it imposes upon the business of the city an undue proportion of its burdens.” (6.) Because it “.discriminates against certain kinds of business by casting the whole burden of taxation upon them.” (7.) Because “the title of the ordinance is, ‘An ordinance to provide for a business-license tax/ ” which is not sufficient under § 9, ch. 19, of the Compiled Laws of 1879. (8.) Because the statute upon which the ordinance is founded, to wit, § 47, ch. 19, of the Comp. Laws of 1879, as amended by § 3, ch. 40, of the Laws of 1881, is void, being in contravention of § 4 of- art. 11, and § 5 of art. 12 of the constitution.
Now whether the ordinance is valid, or not, in all its particulars, in all its details, and in all respects, we do not think it is necessary to decide; but we do decide that it is not wholly and entirely void. Ordinances may be passed at special meetings of the city council; and special meetings may be called by the acting mayor in the absence of the mayor upon the request of three members of the council, although one of such members may at the time be the acting mayor himself. Be
We think the title to the ordinance is sufficient, and while we do not at present wish to express any opinion as to whether
The defendants, however, claim that the plaintiffs cannot maintain this action, for the reason that 'the several plaintiffs have no community of interest, and their several causes of action are improperly joined. In this action there are sixty-two different plaintiffs, and these plaintiffs represent at least twenty-one different kinds of business. They are grocers, dry-goods merchants, hardware merchants, lumber dealers, doctors, jewelers, stationers, news dealers, milliners, auctioneers, coal dealers, boot-and-shoe dealers, butchers, real-estate agents, loan agents, insurance agents, dealers in candies and fruits, keepers of restaurants, boarding-house keepers, harness dealers, furniture dealers, bankers, and bakers. Now if the representatives of these various kinds of business can maintain this single action to enjoin the various taxes levied upon them, then the representatives of all the various kinds of business taxed by the said ordinance could also maintain one single action to enjoin all the various taxes severally levied against them. Itinerant “corn doctors” could unite with merchants; circus proprietors could unite with bankers, and indeed, not only persons with no possible community of interest, but persons with adverse and conflicting interests, could unite with each other in prosecuting this kind of action. What community of interest is there between dry-goods merchants and boarding-house keepers? Or between bankers and doctors? Or between butchers and milliners? Or between coal dealers and insurance agents? In what respect would the relief of one of these classes of persons benefit the other classes? In what respect would a hardware merchant be benefited by having a confectioner relieved from paying his (the confectioner’s) taxes? Or in what respect would a jeweler be benefited by having an auctioneer relieved from
The judgment and order of the court below will be affirmed.