Automobile Gasoline Co. v. St. Louis.

• Decision Date: 13 October 1930
• Docket Number: No. 29220.,29220.
• Citation: 32 S.W.2d 281
• Parties: AUTOMOBILE GASOLINE COMPANY, Appellant, v. CITY OF ST. LOUIS and OLIVER G. CHAPMAN as License Collector.
• Court: Missouri Supreme Court

32 S.W.2d 281

AUTOMOBILE GASOLINE COMPANY, Appellant, v. CITY OF ST. LOUIS and OLIVER G. CHAPMAN as License Collector.

No. 29220.

Supreme Court of Missouri, Division Two.

October 13, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. A.B. Frey, Judge.

AFFIRMED.

Bryan, Williams, Cave & McPheeters for appellant.

(1) The city was given the power by its charter to impose but one tax on a merchant. When it imposed a tax upon merchants it exhausted its charter powers, and the attempt to enact an ordinance imposing a second or an additional license tax upon merchants of gasoline was abortive. Sec. 1, Art. I, Charter; Sec. 2. Art. XXV. Charter. (2) The alleged ordinance which attempts to impose a license tax on merchants of gasoline is invalid for the reason that the charter, which is a grant of power, specifically enumerates what businesses may be taxed, and it does not include gasoline merchants. Furthermore, the business or occupation of merchants is named in the charter, and all divisions or subclasses thereof which the framers of the charter desired to include are specially mentioned therein. Art. XX, Charter. (3) The alleged gasoline tax ordinance and any part of the charter which attempts to authorize said city to levy a license tax on a merchant of gasoline are violative of a state statute, a paramount law to municipal ordinances and charters, which forbids a municipal corporation to impose a license tax on any business not specially named in the city's charter. Sec. 8702, R.S. 1919; Kansas City v. Grush. 151 Mo. 134; Fulton v. Craighead, 164 Mo. App. 90; Pierce City v. Hentchel, 210 S.W. 31; Pierce City v. Hentchel, 180 S.W. 1027; Siemens v. Shreeve, 296 S.W. 415. (4) The city council is prohibited by general state law from dividing merchants into classes and imposing different taxes upon the subclasses. Sec. 8702, R.S. 1919; Kansas City v. Lorber, 64 Mo. App. 604; Kansas City v. Grush, 151 Mo. 128; Ex parte Asotsky, 319 Mo. 810. (5) Clause 24 of Article I, Section 1, of the Charter, is violative of Section 8702, Revised Statutes 1919, in that it attempts to give to said city the power to tax any occupation without specially naming the occupations, whereas said statute, a superior law to the charter, forbids the taxing of an occupation by the city if the occupation is not named in the charter. Pierce City v. Hentchel, 210 S.W. 1027; Secs. 23 and 25, Art. IX, Constitution; Kansas City v. Grush, 151 Mo. 134. (6) The provision of the Charter which enumerates the occupations which may be taxed does not confer upon St. Louis the power to divide them into classes for the purpose of taxation. Article XXII, Charter. (7) The ordinance imposing a license tax on merchants of gasoline is an additional license tax to the general merchants' tax, and is an attempt to impose a double license tax on merchants of gasoline, and, therefore, violates the uniformity clause of the Constitution. State ex rel. v. Railroad, 196 Mo. 523; Viquesney v. Kansas City, 266 S.W. 700; Sec. 3, Art. X. Constitution. (8) Ordinance No. 30423, in attempting to impose a license tax upon merchants of gasoline in addition to the license tax imposed upon them by the general merchants' license ordinance, denies to merchants of gasoline due process of law, discriminates against them, and deprives them of the equal protection of the laws guaranteed to them by the Constitution of the United States. Sec. 1 of the XIV Amendment, Constitution of the United States.

Julius T. Muench, Oliver Senti and Charles L. Waugh for respondents.

(1) The city is authorized by its charter to impose a license tax on merchants. Charter. Art. XX. (a) The city is empowered to classify merchants for the purpose of taxation. Charter, Art. I, Sec. 1, par. (2). (b) Where a municipality is authorized by the State to levy a license tax on an occupation, the general grant of power from the State carries with it the power to divide the occupation into classes. St. Charles v. Schulte, 305 Mo. 124, 264 S.W. 654. (c) Article XIII of the Revised Code, imposing a license tax of one dollar per thousand on the sales of merchants, deals with merchants as a general class; while Ordinance 30423, imposing a license tax of one-half cent a gallon on the sales of gasoline, was subsequently enacted, and deals with a special class, and is therefore an exception to, if not a repeal of, the general ordinance, so far as it relates to persons selling gasoline. Gilkeson v. Railroad, 222 Mo. 205. (d) The ordinance imposing the license tax measured by the number of gallons of gasoline sold was enacted subsequent to Article XIII of the Revised Code, and, in so far as there is conflict between the two, the ordinance last enacted will be given force and effect. State ex rel. Matacia v. Buckner, 300 Mo. 359, 254 S.W. 179. (e) The city is authorized by its Charter to impose a license tax of one-half cent per gallon on persons selling and transporting gasoline, notwithstanding merchants generally are required, by an ordinance previously enacted, to pay a sales tax of one dollar per $1,000 of their sales. Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700; In re Asotsky, 319 Mo. 810, 5 S.W. (2d) 22. (f) The city, by enacting the general merchants' license tax ordinance, did not exhaust its power to legislate in reference to merchants' license taxes. The legislative power is a continuing one. Morrow v. Kansas City, 186 Mo. 685. (g) The term "merchants," as used in Article XX of the Charter, includes dealers in gasoline. Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700; St. Charles v. Schulte, 305 Mo. 124, 264 S.W. 654. (2) An ordinance imposing a license of one-half cent per gallon on sales of gasoline, enacted pursuant to power conferred upon it by the charter to impose a license tax on merchants and to classify the subjects and objects of taxation, does not violate Section 8702. Revised Statues 1919. Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700; In re Asotsky, 319 Mo. 810, 5 S.W. (2d) 22. Paragraph 2 of Section 1 of Article I of the Charter, which authorizes it to classify the objects and subjects of taxation, does not violate Section 8702. (a) Because, the statute prohibits municipalities from imposing license taxes on occupations not mentioned as taxable in their charter, but contains nothing to indicate that the Legislature, by its enactment, intended to prohibit municipalities from dividing into classes occupations which it might lawfully tax. (b) Because, when the State authorizes a municipality to tax an occupation, the general grant of power carries with it the right to divide the occupation into classes. St. Charles v. Schulte, 305 Mo. 124, 264 S.W. 654. (3) The ordinance imposing a license tax on sales of gasoline measured by the gallons sold, is not in conflict with Section 8702, or any other law of the State, and, therefore, is not violative of Sections 23 and 25 of Article IX of the Constitution, which provide that the charter of St. Louis shall be subject to and in harmony with, the Constitution and laws of the State, and that the Legislature shall have the same power over St. Louis as other cities. (4) The construction of a statute by those charged with its execution when it has long prevailed is entitled to great weight and should not be overturned, unless it is clear that such construction is erroneous. 25 R.C.L. 1043; 36 Cyc. 1140, 1141; State ex rel. White v. Fendorff, 317 Mo. 579, 296 S.W. 787; Westerman v. Supreme Lodge, 196 Mo. 670, 5 L.R.A. (N.S.) 1141. (5) Where an ordinance is susceptible of two constructions, under one of which it is valid and under the other of which it is invalid, the construction will be adopted which gives it validity. Bassen v. Monckton, 308 Mo. 641, 274 S.W. 404; State ex rel. v. Clayton, 226 Mo. 292. (6) Article XIII of the Revised Code deals with merchants as a general class. The gasoline-tax ordinance deals with a particular class of merchants, to-wit, those selling and transporting gasoline, and creates an exception to, if it does not repeal, the general ordinance, so far as the general ordinance relates to sales of gasoline. Gilkeson v. Railroad, 22 Mo. 205; 36 Cyc. 1151. (a) Where two ordinances deal with the same subject they are to be so construed that both are valid and effective, if possible. 36 Cyc. 1151; State ex rel. v. Clayton, 226 Mo. 292. (b) Where two ordinances deal with the same subject, and they are in anywise repugnant, the last act must be given effect. 43 C.J. 564, sec. 892. (c) The rules adopted by the courts for the construction of statutes are also applied in the construction of ordinances. St. Louis v. Murta, 283 Mo. 77, 222 S.W. 430; Gist v. Construction Co., 224 Mo. 369; Stack v. Baking Co., 283 Mo. 396, 223 S.W. 89.

COOLEY, C.

Plaintiff sued in the Circuit Court of the City of St. Louis to recover money paid, under protest as is alleged, to defendant collector as gasoline merchant's license taxes. Defendants demurred to the petition on the ground that no cause of action was stated, which demurrer was by the court sustained. Plaintiff declined to plead further: whereupon judgment went for defendants, and plaintiff appealed. The question presented on this appeal is whether or not the city ordinance pursuant to which the license tax was demanded and paid is valid. If it is valid the demurrer was rightly sustained. Otherwise, not.

Plaintiff's petition is in twelve counts, praying for a total recovery of $72.769.37, alleged to have been paid by plaintiff during the years 1922 to 1925 inclusive. It sets forth the various provisions of the charter of the city of St. Louis pertaining to license taxes, an ordinance levying an ad valorem tax on merchants' stocks of merchandise and levying on merchants generally a tax of one dollar on each thousand dollars of sales. It then pleads the ordinance under which the taxes in question were paid and the validity of which is assailed, being Ordinance No. 30423, which...