508 Chestnut, Inc. v. City of St. Louis, No. 50920

• Court: United States State Supreme Court of Missouri
• Writing for the Court: PER CURIAM
• Citation: 389 S.W.2d 823
• Docket Number: No. 50920,No. 1
• Decision Date: 12 April 1965
• Parties: 508 CHESTNUT, INC., a Corporation, Respondent, v. The CITY OF ST. LOUIS et al., Appellants

Page 823

389 S.W.2d 823 508 CHESTNUT, INC., a Corporation, Respondent,
v.
The CITY OF ST. LOUIS et al., Appellants. No. 50920. Supreme Court of Missouri, Division No. 1. April 12, 1965.
Motion for Rehearing or to Transfer to Court En Banc Denied
May 10, 1965.

Page 826

Morris A. Shenker, Emanuel Shapiro, St. Louis, for plaintiff-respondent.

Thos. J. Neenan, City Counselor, Thomas F. McGuire, Daniel T. Tillman, Assoc. City Counselors, St. Louis, for appellants.

HOUSER, Commissioner.

508 Chestnut, Inc., a corporation engaged in the operation of a hotel business, brought suit against City of St. Louis and its license collector and comptroller, praying for a judgment declaring Ordinance No. 52030 void, and to enjoin defendants from enforcing same and collecting license taxes thereunder. City of St. Louis filed its answer and a cross-claim praying judgment for the amount of money due under the ordinance. Certain admissions of fact were demanded and made under Civil Rule 59. ¹ Plaintiff filed a motion for summary judgment on petition and cross-claim on the ground that the pleadings and admissions showed that there was no genuine issue as to any material fact and that plaintiff as a matter of law was entitled to judgment for the relief prayed for in its petition. The motion for summary judgment was tried before a judge of the circuit court upon the pleadings, agreed statement of facts and certain documentary evidence introduced at the hearing.

On April 24, 1964 the court made and entered its findings of fact and conclusions of law; determined that the ordinance was void, that defendants were not entitled to enforce collection of taxes thereunder, and entered judgment for plaintiff and against defendants onboth petition and cross-claim.

On May 6, 1964 defendants filed a motion for a new trial, which was argued, submitted to the court, and denied on June 12, 1964. On June 15, 1964 defendants filed a notice of appeal from the judgment entered on April 24, 1964.

In their jurisdictional statement defendants raise the question whether the appeal is timely. Plaintiff urges that this is a case tried to the court without a jury; that under the provisions of Civil Rule 73.01(c) as written on May 6, 1964 ² a motion for a new trial in that kind of case had to be made within 10 days after the entry of judgment; that defendants' motion for a new trial was made 12 days thereafter--too late to extend the time for the filing of the notice of appeal--and therefore the notice of appeal, filed 52 days after entry of judgment, was filed too late to vest jurisdiction in this Court. Plaintiff points out that the Court recently (on November 16, 1964) promulgated an amendment to Civil Rule 73.01(c) to increase the time limit from 10 to 15 days, and recalls the notation made by the Court on that occasion: 'The change in Rule 73.01 is made so that the time for after-trial motions in nonjury cases will conform to the time now permitted for motions for new trial in jury cases.' ³

Page 827

In Crooms v. Ketchum, Mo.Sup., 379 S.W.2d 580, 585 we held in a courttried case that the filing of a motion for new trial 12 days after the entry of judgment was timely; that such a case is governed by Civil Rule 78.02, which provides, among other things, that a motion for new trial shall be filed not later than 15 days after the entry of the judgment. Under the ruling in that case the finality of the judgment in this case was suspended until the motion was overruled within 90 days. Civil Rules 78.02 and 78.04. Notice of appeal was timely filed three days after the motion for a new trial was denied. The amendment of Civil Rule 73.01(c) on November 16, 1964 and the notation on the order of amendment was intended to eliminate the confusion arising out of the difference between the 15 days provided for in Civil Rule 78.02 and the 10 days provided for the filing of motions to amend the judgment and opinion in court-tried cases. The amendment and notation are not to be interpreted as a construction that at that time Civil Rule 73.01(c) provided a 10-day time limit for filing motions for new trial in court-tried cases.

The facts are undisputed. Plaintiff corporation operates the LaSalle Hotel in the City of St. Louis. It is subject to Sec. 402-170, Revised Code, City of St. Louis, which levies on hotels a license fee of 50cents annually for each sleeping room to be used for paying guests. Prior to the enactment of the ordinance in question Ordinance No. 48433, levying on each hotel a license tax of 2% of the daily rental of each room occupied by a transient guest in addition to the tax levied on rooming houses in general, was declared void by the Circuit Court of the City of St. Louis. City did not appeal.

Ordinance No. 52030, Sec. 29-108 of which is now under attack, was approved June 1, 1963. Its 1400-word title, irrelevant matter omitted, follows: 'An Ordinance licensing and regulating the following business avocations, permits, professions, trades, calling[s?] as follows: [here 217 businesses are listed, including 'Hotels and Motels'].

'Establishing a procedure for the issuing of licenses, requiring all delinquent taxes, licenses, permits due or past due to be paid as a condition precedent to the issuance of such licenses; requiring the license collector to administer such ordinance; establishing the Board of Tax Appeals; providing and prescribing the procedure and powers of the Board of Tax Appeals; requiring bonds for certain specified licenses, and repealing [certain numbered and entitled chapters of the Revised Code] and containing a penalty clause and a severability clause.'

Section 29 provides that 'Every corporation * * * engaged in any business, * * * or in the keeping or maintaining of any * * * establishment, * * * [referred to?] in this ordinance, shall procure and pay for a license therefor from the city, and such license fees shall be in the respective amounts set out in this ordinance (except as otherwise provided in this ordinance).'

Each separate business, avocation, calling, etc., is dealt with in a separately numbered subsection. Some license fees are imposed in fixed amounts. For instance, express companies are required to pay a flat annual license fee of $100. Others are based on annual gross receipts, with a minimum annual fee. Provision is made for a rate of $1.75 per $1,000 where the fee is based upon annual gross receipts of other gross annual fees, charges or compensation, 'except as otherwise specifically provided in this ordinance.'

Subsection 29-108, 'Hotels and Motels,' provides as follows:

'There is hereby levied a tax of two (2) per cent of the gross daily rental receipts due from or paid by transient guests, in addition to the tax levied on hotels and motels by Section 402.170 Revised Code of the City of St. Louis [50cents per room per annum, see supra.]

Page 828

'Definitions for purposes of this section as follows:

'Transient guest shall be a person who occupies a room in a hotel or motel for 31 days or less.

'Hotel or Motel shall mean any structure or building which contains rooms furnished for the accommodations or lodging of guests, with or without meals being so provided, and kept, used, maintained, advertised, or held out to the public as a place where sleeping accommodations are furnished for pay or compensation to transient guests or permanent guests.

'It is hereby made the duty of every person, firm or corporation engaged in the business of operating a hotel or motel to file with the Comptroller of the City of St. Louis, on or before the fifteenth day of October, 1963, a sworn statement of the gross daily receipts received from or due from transient guests from the operation of such hotel or motel from the effective date of this ordinance to September 30, 1963, and to file on or before the fifteenth day of April and the fifteenth day of October of each year a sworn statement of gross daily receipts for such business for the six calendar months preceding the filing of such statement. At the time of filing such statement the Comptroller shall examine the accuracy of such statement and shall certify to the license collector of the City of St. Louis the amount of tax due by such person, firm, or corporation engaged in the business herein described. The license collector shall...