A American Union Express Co. v. City of St. Joseph. CTION to recover paid taxes. The opinion states the facts. Allen H. Vories, for appellant, cited 1 Dillon on Mun. Corp., §§ 291-293; 2 id., §§ 606-610; Cooley on Tax. 408-413; State Freight Tax Case, 15 Wall. 232. Benjamin R. Vineyard, for respondent. NORTON, J. This suit was instituted in the Circuit Court of Buchanan county to recover back a part of the taxes paid by plaintiff for the years 1872 and 1873. It is alleged that the taxes were paid by plaintiff under protest, and because defendant, through its collector, threatened to seize and sell the property of the plaintiff to pay the same. The petition alleges that, during the years 1872 and 1873, the plaintiff only had at any one time $2,500 worth of property, and yet plaintiff's taxes for the year 1872, as assessed, amounted to $180.97, and for the year 1873, to $206.75, although the tax levy was only two per cent. It is alleged that this tax was illegally assessed, under an ordinance of said city requiring express companies to pay an ad valorem tax equal to that which is levied. upon real estate within the limits of said city, for general and special purposes, upon the gross amount of all moneys which, during the year ending on the first day of January, shall have been received by such company, as a compensation for the transaction of such express business; that under said ordinance plaintiff was required, on the first day of January of each year, to take out a license, and to pay therefor, the amount assessed under said ordinance as an ad valorem tax; that, in consequence thereof, plaintiff has been forced to pay more than its due share of the municipal taxes for the years 1872 and 1873, and asks judgment for the recov ery of the taxes so paid. The answer contained a denial of each and every allegation of the petition. Upon the trial, after the introduction of plaintiff's evidence, the court instructed the jury that on the evidence plaintiff was not entitled to recover. Whereupon a nonsuit was taken, with leave, and a motion to set the same aside, and for new trial being overruled, the plaintiff brings the case here by appeal. On the trial plaintiff offered in evidence a provision from defendant's charter, empowering it "to license, tax and regulate wholesale merchants, agents, express companies or their agencies, insurance companies or their agencies, telegraph American Union Express Co. v. City of St. Joseph. companies or their agencies, land agents and real estate brokers," also, an ordinance entitled "merchants," to the effect that merchants shall, on the first day of January of each year, take out a license and pay an ad valorem tax, equal to that which is annually levied upon real estate within the limits of the city, on the actual cash value of all goods, wares and merchandise which they may have in their possession or under their control, whether owned or consigned to them for sale, on the first day of January in each. year; also, another ordinance, entitled "express companies," to the effect "that every express company or agency thereof, doing an express business in the city, shall pay an ad valorem tax equal to that which is levied upon real estate within the limits of the city, for general and special purposes, upon the gross amount of all moneys which, during the year ending on the first day of January, shall have been received by such company or agency in said city, as a compensation for the transaction of such express business." Other evidence was introduced, showing that the city collector had the authority to seize and sell property after demand and refusal to pay the tax; also, evidence tending to show that plaintiff had paid the tax in question under protest, after its payment had been demanded by the collector. It is argued by counsel for plaintiff that the court erred in giving the instruction that, under the evidence, plaintiff could not recover, because defendant, by virtue of the authority given in the charter, had no constitutional power to provide one mode of taxation for merchants and another and different mode for express companies, and because the evidence showed that the tax was involuntarily paid We entertain no doubt of the right of the legislature to delegate the power to tax. This does not seem to be disputed, but it is contended that defendant, in exercising the power, so exercised it as to conflict with the provision of the Constitution then in force, "that all property subject to taxation ought to be taxed in proportion to its value." The question here presented was considered in the case of Glasgow v. Rowse, 43 Mo. 479, which involved the constitutionality of an act of the legislature imposing a tax on incomes, and it was held that such an act was not in conflict with the above constitutional requirement; and that the mandate that taxes on all property shall be in proportion to its value, does not include every species of taxation; that while it enjoins a uniform rule in impos American Union Express Co. v. City of St. Joseph. ing taxes on property, it does not abridge the power of the legisla ture to provide revenue from other sources. It has also been held that the power of the legislature to tax all professions is unquestioned, and the State might delegate the authority, but it should be done in clear and unmistakable terms. St. Louis v. Laughlin, 49 Mo. 559; Simmons v. State, 12 id. 268. In defendant's charter the power to tax as well as to license and regulate express companies or their agencies is in plain terms conferred by the legislature. It may be conceded that if it appeared that the power conferred was simply to license and regulate the occupation or pursuit of express companies, it would not authorize the levying of a tax on the occupation unless it clearly appeared that such was the legislative intent in conferring it. 1 Dill. 292. But here the power to tax is expressly given, and hence the argument of counsel does not apply. In exercising the power thus delegated, the city council might adopt any method of taxation which the legislature might have adopted, and as it has been expressly decided that the legislature might impose a tax upon incomes, it follows that the defendant, through its council, might, as it in fact did, impose a tax on the income of defendant, the gross receipts being in effect the gross income. It is argued that the tax complained of is illegal, because under the ordinance express companies are taxed in a different manner from merchants. We do not perceive the force of the reasoning. The city council, in exercising the power to tax the various classes of pursuits mentioned in the ordinance, could not well apply the same rule to all of them, nor do we think it was the purpose of the legislature to require them to do so. If, however, the defendant, in its ordinance, had provided one mode of taxing one express company, and another and different mode for another company engaged in the same business, such ordinance would have been open to the objection urged as destroying equality and uniformity. A provision in the Constitution of Louisiana declaring that all taxation "shall be equal and uniform throughout the State," even if it extends to municipal taxation, is not violated by a legislative provision authorizing the taxation by municipalities of callings, trades and professions, exercised within their limits; and taxation of this kind is equal and uniform, if all persons engaged in the same business are taxed alike. 2 Dill. Mun. Corp., § 593. But it is said that as the business of plaintiff consisted in American Union Express Co. v. City of St. Joseph. receiving packages to be transported from St. Joseph to other points outside of the State, to which plaintiff's line did not extend, the tax upon the gross receipts of plaintiff was violative of that provision of the Constitution of the United States confiding to Congress alone the power to regulate commerce with foreign nations and among the several States. In the case of Erie Railroad Company v. Pennsylvania, 15 Wall. 284, it was expressly held that a statute of a State imposing a tax upon the gross receipts of railroad companies is not repugnant to the Constitution, though the gross receipts are made up in part from freights received for transportation from that State to another State; that such a tax is neither a regulation of inter-State commerce, nor a tax on imports nor exports, nor upon inter-State transportation. It is also argued that the tax was illegal, because the gross receipts upon which it was paid were not received by plaintiff "as a compensation for the transaction of such express business in the city of St. Joseph." This objection is based on the evidence of one Worden, who was the general agent of plaintiff, who testified that he could not certainly distinguish how much was paid to other companies, but did not believe that the net earnings of the plaintiff for the year 1872 exceeded fifteen per cent of the gross amount, and that out of this latter amount received for the year 1872, a part was paid out to other express companies, pro rata, for carrying freight, a part for the hire of hands and in other general expenses in running their business, and in feeding and taking care of its stock. This witness also testifies that he made the quarterly report for the company on the 1st of January, 1873. Now, according to this report made by the plaintiff, the gross receipts amounted to the sum of $11,548.70 for the year 1872, and the tax was collected on the data furnished by plaintiff, and it matters not that the witness testified that the net earnings amounted only to fifteen per cent of the gross earnings, the balance being consumed in expenses, etc. It was the gross earnings which was the subject of the tax, and they were received as compensation for the transaction of express business, although a considerable part thereof may have been consumed in expenses incurred in conducting it. If, even in strictness, the amounts paid to other companies pro rata, for transportation out of the State, should have been deducted from the gross receipts of plaintiff, it should have been done by the company when required under oath to make a statement on the first day of January, as to the gross receipts for the business of the previous year. State v. Davis. Under the views above expressed, it is wholly immaterial whether the payment of the tax sought to be recovered back was voluntary or involuntary. Assuming the payment to have been made involuntarily, still the plaintiff could not recover unless the tax was illegal and unauthorized, and, as we perceive no illegality in the tax, either for want of power in the city council to impose it, or in the manner in which it was imposed, the judgment will be affirmed, with the concurrence of the other judges. Judgment affirmed. STATE V. DAVIS. (66 Mo. 684.) Criminal law-defendant's waiver of full panel of jurors. On the trial of an indictment, the prosecuting attorney proposed to go to trial with less than the legal number of names of jurors in the box to be drawn from. The defendant's attorney consented. The prisoner being convicted, held, that such consent did not validate the conviction.* ̈NDICTMENT for robbery. The opinion states the facts. IN B. L. Woodson and Rucker Bros., for appellant. J. L. Smith, attorney-general, for the State, cited State v. Marshall, 36 Mo. 400; State v. Hays, 23 id. 287; State v. Holme, 54 id. 153; State v. Jackson, 12 La. Ann. 679; State v. Vester, 23 id. 620; State v. Axiom, id. 621; People v. Coffman, 24 Cal. 230; Proffatt on Jury Trials, § 198. SHERWOOD, C. J. Defendant was indicted for robbery in the first degree, convicted, and his punishment assessed at the lowest statutory limit. I. When the defendant was arraigned, there were but 24 of the regular panel of jurors in the box; seeing this, the court ordered. the marshal to summon six additional ones, whereupon the prosecuting attorney asked the attorneys of defendant to waive the bringing in and swearing of the six additional ones, which defendant's attorneys consented to do. Thereupon the prosecuting attor ney struck off three men, and the defendant's attorneys nine men, and the remaining twelve were sworn as a jury. In indictments *See Cancemi v. People, 18 N. Y. 128. |