City of St. Louis v. St. Louis Transit Co.

• Citation: 165 S.W. 1077,256 Mo. 476
• Parties: CITY OF ST. LOUIS v. ST. LOUIS TRANSFER COMPANY, Appellant
• Decision Date: 02 April 1914
• Court: United States State Supreme Court of Missouri

165 S.W. 1077

256 Mo. 476

CITY OF ST. LOUIS v. ST. LOUIS TRANSFER COMPANY, Appellant

Supreme Court of Missouri, First Division

April 2, 1914

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Affirmed.

Randolph Laughlin for appellant.

(1) The allegation that section 1708 of the Revised Ordinances of 1900 "was at all times mentioned herein in full force and effect" is the averment of a mere conclusion of law and therefore was not admitted, either by the demurrer, or by the admission made in open court of the truth of the averments of fact. Knapp, Stout & Co. v. St. Louis, 156 Mo. 352; State ex rel. v. Aloe, 152 Mo. 476; Bradley v. Franklin County, 65 Mo. 639. (2) Section 1708 of the Revised Ordinances of 1900 was not, at the time of its passage, or at any time thereafter, "in full force and effect," but, on the contrary, is and always was invalid. State ex rel. v. Clifford, 228 Mo. 208; St. Louis v. Cool, 228 Mo. 210.

William E. Baird and Truman P. Young for respondent.

(1) The opinion in the case of State ex rel. v. Clifford, 228 Mo. 194, decided only that the entire proviso of section 1708 of the Municipal Code of St. Louis of 1901 was void. It did not decide that the entire section 1708 was void. This is obvious from a reading of the opinion. It is also obvious from the following considerations: (a) The relator's petition for the writ of mandamus attacked only the proviso. It conceded the validity of section 1708 and asked that a license be issued under that section upon payment of the proper fees. (b) When the case reached this court there was no contention raised in the brief for the relator that section 1708 was invalid in its entirety. The only question was as to the validity of the proviso. (c) The court ruled that the proviso was invalid, but remanded the case with directions to issue a mandamus for the relief asked. This judgment recognized the validity of section 1708 and required the defendant to issue a license under that section upon payment of the proper fees. (2) If this court in the case of State ex rel. v. Clifford, 228 Mo. 194, had undertaken to declare the entire section 1708 of the Municipal Code of 1901 void, the decision would have been of no effect because the question was not raised upon the record. If a court undertakes to go beyond the issues, the decision is coram non judice. The court will not sua sponte render a decision upon a legal question, nor will it create issues not raised by the pleadings. Courts can only decide the issues raised by parties litigant. The judgment of a court, in order to be valid, must rest upon a substantial foundation, in the record. Munday v. Vail, 34 N. J L. 418; Garland v. Davis, 4 How. 131; Windsor v. McVeigh, 93 U.S. 274; Reynolds v. Stockton, 140 U.S. 254; Seamster v. Blackstock, 83 Va. 232; 1 Freeman on Judgments (4 Ed.), pp. 196, 197, sec. 120-C. (3) Section 1708 is in all respects valid except that portion included within the proviso and which attempts to regulate the width of tires. The body of section 1708, exclusive of the proviso, has been in force with little change ever since January 7, 1878, and was held valid in St. Louis v. Green, 7 Mo.App. 468, and St. Louis v. Green, 70 Mo. 562. The invalidity of the proviso does not affect the body of the section. It is an old and well recognized rule that an ordinance or a statute may be void in part and valid in part, where the invalid portion is separable so that it may be discarded and the valid portion may then be enforced. St. Louis v. Dairy Co., 190 Mo. 492; State v. Bockstruck, 136 Mo. 335; Rockville v. Merchant, 60 Mo.App. 368; Lamar v. Weidman, 57 Mo.App. 507; State ex rel. v. St. Louis, 241 Mo. 231.

OPINION

GRAVES, J.

This is an action by the city of St. Louis to recover from the defendant corporation certain license taxes, upon vehicles operated by it in the city of St. Louis, for the years 1905, 1906, 1907, 1908, 1909, and 1910. The petition contains a count for each year. The first count of the petition is thus outlined in defendant's abstract:

The first count of the petition alleges the incorporation of the parties, plaintiff and defendant; that the defendant at all times mentioned in the petition owned and used in the streets and public highways of the plaintiff the number and kinds of vehicles therein stated; that there was at all said times "in full force and effect" an ordinance of the city of St. Louis, known as section 1708 of a revised ordinance of said city, styled "The Municipal Code of St. Louis," approved April 3, 1900; that by the terms of said ordinance it was provided that there should be annually levied and collected a license tax upon all kinds of vehicles used in the streets or public ways of the city, the following sums, to-wit:

On each wagon drawn by eight or more horses

$ 30.00

On each wagon drawn by six horses

15.00

On each omnibus, drag, tallyho coach, lighted vehicle or

stage coach drawn by four horses

10.00

On each wagon drawn by three horses

7.00

On each omnibus or wagon drawn by two horses

5.00

On each wagon or cart drawn by one horse

2.00

On each hack or hackney carriage drawn by two horses

5.00

On each barouche, drag, coach, coupe, rockaway, surry,

wagon, landau, or other vehicle drawn by two horses

3.00

On each cab drawn by one horse

2.50

On each barouche drawn by one horse

2.50

On each four-passenger park wagon drawn by one horse

2.00

On each buggy

1.50

On each driving cart or sulky

1.50

On each bicycle, tricycle or velocipede

1.00

On each vehicle not specifically mentioned

1.50

That the defendant, during the year 1905, was the owner of and did use in the streets and public ways of the city the following described vehicles, to-wit:

4 wagons each drawn by one horse,

125 wagons drawn by two horses,

4 wagons each drawn by three horses,

1 wagon drawn by four horses.

That by reason of the facts aforesaid and by virtue of the terms of said ordinance it became and was the duty of the defendant to pay to the city of St. Louis license taxes as follows:

On said four one-horse wagons at the rate of $ 2 each,

making a total of

$ 8.00

On said 125 two-horse wagons at the rate of $ 5 each,

making a total of

625.00

On said four three-horse wagons, at the rate of $ 7 each,

making a total of

28.00

On said one four-horse wagon

15.00

Making an aggregate amount of

$ 676.00

Which became due and payable from the defendant to the plaintiff for the license taxes on such vehicles for the year 1905. That demand was made of the defendant by the license collector of the city of St. Louis to pay the said sum, but that no part thereof has been paid.

Wherefore plaintiff prays judgment against defendant for the sum of six hundred and seventy-six dollars, together with interest and costs.

The abstract before us alleges that the other five counts were in the same form and prayed judgment for the same sum in each, but the years mentioned were different.

To this petition a general demurrer was filed and overruled, and the defendant refusing to plead further, judgment was entered for the plaintiff for the sum of $ 4182.63, from which said judgment the defendant has appealed. The city of St. Louis being a party, the jurisdiction is lodged here, notwithstanding the amount involved.

The turning point in the case is the validity or invalidity of the ordinance pleaded. Other incidental questions are suggested, which with the vital question will be noted in the course of the opinion.

I. At some time prior to April 3, 1900 (the counsel for defendant says in 1898), the city of St. Louis passed what counsel denominates the "Wide-Tire Ordinance." Counsel for defendant further gives us the information that on April 3, 1900, the legislative branch of the city government of the city of St. Louis "passed an ordinance number 19,991, entitled 'Ordinance in Revision of the General Ordinances' which contains nearly 2500 sections, and among others, section 1708 of article 2 of chapter 23 of said ordinance. That this section 1708 embodied and was the Wide-Tire Ordinance of 1898."

In the view we take of the law of this case, we should set out said section 1708 in full. It reads:

"Sec. 1708. License tax on Regulations. There shall be annually levied and collected a license tax upon all kinds of vehicles, including bicycles tricycles, and velocipedes, used in the streets or public ways of the city for trade, traffic, pleasure or any other purpose, public or private, except vehicles for pleasure, owned and used by non-residents of the city, and bicycles, tricycles and velocipedes owned and used solely by children under twelve years of age, the following sums, to-wit: On each wagon or truck used for hauling boilers, engines, cable ropes, safes or stone, and drawn by eight or more horses, thirty dollars; on each wagon drawn by six horses, twelve dollars; on each wagon drawn by four horses, fifteen dollars; on each omnibus drawn by four horses, ten dollars; on each stage coach drawn by four horses, ten dollars; on each drag, tallyho, coach or lighted vehicle drawn by four horses, ten dollars; on each wagon drawn by three horses, seven dollars; on each omnibus drawn by two horses, five dollars; on each wagon drawn by two horses, five dollars; on each wagon or cart drawn by one horse, two dollars; on each hack or hackney carriage drawn by two horses, five dollars; on each barouche, drag, coach, coupe, rockaway, surrey, wagon, landau or other like vehicle drawn by two horses, three dollars; on each cab driven by one horse, two dollars and fifty cents; on each barouche drawn by one horse, two dollars and fifty cents; on each four-passenger surrey drawn by one horse, two dollars; on each four-passenger park wagon drawn by one horse, two dollars; on...