The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1896-01-21

found allegations 10 the effect that the
lcense-tax imposed is grossly excess
siVe, and that as the business of the
company extends beyond the limit OF
the state the Icense-taX amounts 10
tax on interstate commerce. These
ana other aVerments OF the application,
however, are not admitted in the re-
turn 10 the writ, and they were denied
Dy council for respondent at the hear
ing. The questions 50 well argued by
counsel are therefore not ripe for deciS-
ion, nor do any OF the objections made
afford grounds for the discharge OF the
petitioner. No issue was Joined nor
proof offered n the case. The aver
ments Of the application are not to be
taken as true because they are not
denied in the re-n. The return is not
treated as an answer 10 the apDlica-
ton, but rather as a response TO the
writ. The averments in the application
are made for the purpose of obtaining
the allowance Of the writ. and il Is
not necessary that they should be ans
Wered or denied by the officer in his
return 10 the writ. The statute pre-
scribes what the returns : EiH state.
and in this instance it sets forth the
cause of restraint together with writ
len copy Of the authority under which
the petitioner is held, and appears 10
comply with the statutory requirements
(CiVll code, sec. 66S) If the petitioner
desires 10 contrOvert the return or any
part thereof, or allege any new matter
showing the restraint 10 be Illegal he
may do so after the return Is made.
(CiV1 code. sec. 669) In this way an
issue may be formed. and upon a hear
ing the disputed questions Of fact may
be settled. As the ordinance is includ-
ed IN the return, we may inquire and
determine whether upon its face IL is
valid. Express authority has been Civ
en- by the Legislature 70 levy and col
lect license taxes upon all callings.
trades, professions and occupations. in
Guiding telephone companies, within
the limits Of cities of the first class.
Gen. stats, 1889. par. $50 and S04) In
such cases ii has been held that the
municipality is not limited to the mere
expense of regulation, but that they
may be imposed for the purpose Of OBJ
timing revenue to meet the general ex-
penses Of the city. CFretwell V. the city
of Troy. Is Kan, 271: city Of Newton,
Y. AtchiSOn, 81 Kan. 151; TullOS V. city
Of Sedan. 81 Kan, 165: city OF Cherokee
Y. Fox, "a Kan, Is: city of Wyandotte
v. Corrigan. 80 Kan, q; city of Girard
Y. BisSel, 40 Kan, Co. While the tax
levied appears to be very large, we
cannot say as a matter of law that il
Is excessive, nor can We without proof
mold mat II is oppressive or prohibtive.
In FretWell V. city of Troy, supra, it
was said that 1.-THE mere amount of the
tax does not prove its invalidity' The
city cannot impose a licenSe-tax beyond
the necessities Of the city, nor can il
impose one SO excessive as to prohibit
or destroy the occupation or business.
CITY Of Lyons V. Cooper, 90 Kan. 324)
Many things, however, enter into the
determination of what constitutes a
just and asonable license-tax. but as
ITO the conditions existing in Wichita
we are not advised. There is the nature
OF the franchise or privileges enjoyed
10y the company within the city, the
prices which they charge for the ser
vice given by it to its pa irons, the
amount of property-taX. if any, paid
by the company, the current expenses
Of the municipality, and the amount or
its Indebtedness. Without information
upon these questions the court cannot
determine that a license-tax of $i2 per
annum upon a business phone and $40
upon a residence phone is prohibitive
excessive or oppressive. HabeaS
corpus may not be the most appropri-
ate proceeding in which to determine
the questions presented and discussed
by counsel. but before we can decide
them in this proceeding an issue must
be Joined and the facts must either
he established or agreed upon by the
parties.
''The petitioner will be remanded.
"Ail the justices concurring.
"A true copy, attest:
sc. J. BROWN,