Cape Girardeau v. Groves Motor Co., No. 36862.

• Court: Missouri Supreme Court
• Writing for the Court: Bohling
• Citation: 142 S.W.2d 1040
• Docket Number: No. 36862.
• Decision Date: 10 September 1940
• Parties: CITY OF CAPE GIRARDEAU, a Municipal Corporation, v. FRED A. GROVES MOTOR COMPANY, a Corporation, Appellant.

142 S.W.2d 1040 CITY OF CAPE GIRARDEAU, a Municipal Corporation,
v.
FRED A. GROVES MOTOR COMPANY, a Corporation, Appellant. No. 36862. Supreme Court of Missouri. Division Two, September 10, 1940.

[142 S.W.2d 1041]

Appeal from Cape Girardeau Circuit Court. — Hon. Frank Kelly, Judge.

REVERSED.

Spradling & Strom and Finch & Finch for appellant.

(1) An ordinance violates Article 10, Section 3, of the Constitution of Missouri, and Amendment 14, Section 1, of the Constitution of the United States unless it is uniform in its application to members of the same class similarly situated. Art. 10, Sec. 3, Mo. Const.; Amend. 14, Sec. 1, U.S. Const.; St. Charles ex rel. Palmer v. Schulte, 264 S.W. 654, 305 Mo. 124; Village of Beverly Hills v. Schulte, 130 S.W. (2d) 532; City of Washington v. Reed, 70 S.W. (2d) 121; Asotsky v. Beach, 5 S.W. (2d) 22; City of Aurora v. McGannon, 138 Mo. 38; Nafziger Baking Co. v. Salisbury, 48 S.W. (2d) 563; State ex rel. Sampson v. Sheridan, 25 Wyo. 347, 170 Pac. 1, 1 A.L.R. 955; 37 C.J., pp. 197, 200, secs. 51, 53; 6 R.C.L., pp. 377, 380, 381, secs. 370, 372, 374; 17 R.C.L., pp. 508, 510, secs. 30, 31; 12 Amer. Juris. 157, sec. 482. (2) The ordinance in question is not uniform in that it taxes part of the same class similarly situated upon the basis of their gross receipts for the preceding calendar year, regardless of whether they operated all or only a part of the year, whereas others of the same class who were not in business the preceding calendar year are taxed upon the basis of their gross receipts for the period for which the license is actually issued. (3) It is generally accepted rule that a presumption prevails in favor of the reasonableness and validity of a municipal ordinance, unless the contrary is shown by competent evidence, or appears on the face of the ordinance. Bellerive Inv. Co. v. Kansas City, 13 S.W. (2d) 639; State ex rel. v. Remmers, 101 S.W. (2d) 73; Hislop v. Joplin, 250 Mo. 588; Central Mo. Oil Co. v. St. James, 111 S.W. (2d) 221. (4) The presumption of the validity and reasonableness of an ordinance may be overcome when the evidential facts appear. State ex rel. v. Remmers, 101 S.W. (2d) 73; Stegmann v. Weeke, 214 S.W. 140; St. Louis v. Theatre Co., 202 Mo. 699; City of Windsor v. Bast, 199 S.W. 733; St. Louis v. Inv. Co., 226 Mo. 157; City of Washington v. Reed, 70 S.W. (2d) 123; A. & P. Teleg. Co. v. Philadelphia, 190 U.S. 160, 47 L. Ed. 1000; Postal Teleg.-Cable Co. v. Newhope, 192 U.S. 56, 48 L. Ed. 341. (5) In the case under consideration here the prima facie case was rebutted and overcome by the undisputed and uncontradicted evidence offered by appellant and a case was made for the jury. 43 C.J., 312, sec. 326; St. Louis v. Theatre Co., 202 Mo. 699; Stegmann v. Weeke, 214 S.W. 140; City of Washington v. Reed, 70 S.W. (2d) 123.

R.B. Oliver III, B. Hugh Smith, and J. Grant Frye for respondent.

(1) The city of Cape Girardeau is a third class city and as such has the authority and power to levy and collect an occupation tax on persons and corporations doing business in the city of Cape Girardeau, including automobile deales. Sec. 6840, R.S. 1929; 3 McQuillin, Mun. Corp. (2 Ed.), ch. 26; Ploch v. St. Louis, 345 Mo. 1069. (2) The ordinance in question is clearly and concededly a revenue measure and must be construed and tested by principles applicable to taxation alone. (3) The ordinances in question, enacted as revenue measures under Section 6840, Revised Statutes 1929, do not violate Article X, Section 3, of the Constitution of Missouri, nor Amendment Fourteen, Section 1, of the Constitution of the United States, relative to uniformity, and said ordinances are neither excessive, confiscatory, discriminatory, prohibitory nor unreasonable. Ploch v. St. Louis, 345 Mo. 1069; Continental Oil Co. v. Walker, 285 Fed. 729; Campbell Baking Co. v. Maryville, 31 Fed. (2d) 466; Gray v. Central Florida Lbr. Co., 140 So. 321; Bently-Gray Dry Goods Co. v. Tampa, 188 So. 758; Bluefield Produce & Provision Co. v. Bluefield, 196 S.E. 568; Reif v. Barrett, 355 Ill. 104, 188 N.E. 889; Fredericksburg v. Sanitary Gro. Co., 168 Va. 57, 190 S.E. 382; Cupp Grocery Co. v. Johnstown, 288 Pa. 43, 135 Atl. 610; Harrisburg v. Harrisburg Ry. Co., 319 Pa. 140, 179 Atl. 442; City & County of San Francisco v. Market Street Railroad Co., 9 Cal. (2d) 743, 73 Pac. (2d) 234; Danville Traction & Power Co. v. Danville, 191 S.E. 592, 71 A.L.R. 261; Great Northern Ry. Co. v. State, 52 Pac. (2d) 1274; Puget Sound P. & L. Co. v. Seattle, 291 U.S. 638; San Louis Obispo County v. Greenberg, 120 Cal. 300, 52 Pac. 797; Clark v. Titusville, 184 U.S. 329; Young v. Lexington, 235 Ky. 822, 32 S.W. (2d) 410; Pacific Tel. & Tel. Co. v. Seattle, 172 Wash. 649, 21 Pac. (2d) 721; American Express Co. v. St. Joseph, 66 Mo. 675; St. Louis v. Sternberg, 69 Mo. 289; Village of Beverly Hills v. Schulter, 130 S.W. (2d) 532; St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870; Automobile Gasoline Co. v. St. Louis, 306 Mo. 435, 32 S.W. (2d) 281; St. Charles ex rel. Palmer v. Schulte, 305 Mo. 124, 264 S.W. 654; Ex parte v. Asotsky, 5 S.W. (2d) 22, 319 Mo. 810; State v. Broeker, 11 S.W. (2d) 81; City of Aurora v. McGannon, 138 Mo. 38, 39 S.W. 469; Kansas City v. J.I. Case Threshing Machine Co., 87 S.W. (2d) 195, 337 Mo. 913; Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700; State ex rel. Peoples Motor Bus Co. v. Blaine, 332 Mo 582, 58 S.W. (2d) 975; Sedalia v. Standard Oil Co., 66 Fed. (2d) 757, 81 Fed. (2d) 193, 106 A.L.R. 1327; St. Louis v. United Rys. Co., 263 Mo. 387, 174 S.W. 78; Simmons Hardware Co. v. St. Louis, 192 S.W. 394; State ex rel. International Shoe Co. v. Chapman, 311 Mo. 1, 276 S.W. 32; Id., 318 Mo. 99, 300 S.W. 1076; Kroger Grocery & Baking Co. v. St. Louis, 106 S.W. (2d) 435; City of Ozark v. Hammond, 329 Mo. 1118, 49 S.W. (2d) 129; State ex rel. v. Ashbrook, 154 Mo. 375, 55 S.W. 627; St. Louis v. Spiegel, 75 Mo. 145; American Mfg. Co. v. Alt, 270 Mo. 589, 184 S.W. 1167, Id., 238 Mo. 267, 142 S.W. 297.

BOHLING, C.

The City of Cape Girardeau, Missouri, recovered a judgment of $1,140.75 against Fred A. Groves Motor Company, a corporation, for a city license tax due July 16, 1938. Defendant appealed and presents the main contention that the ordinance provisions for measuring the tax violate the uniformity provision of Sec. 3, Art. 10, of the Missouri Constitution.

Appellant, since November, 1914, has been engaged in business as an automobile dealer and automobile parts dealer in Cape Girardeau. Cape Girardeau is a city of the third class and authorized "... to levy and collect license tax on wholesale houses, ... wholesale merchants, merchants of all kinds, ... automobile agents and dealers, automobile accessory dealers, ..." et cetera. [Laws 1931, p. 276, Sec. 6840, R.S. 1929.] Ordinance No. 752, adopted September 11, 1926, and Ordinance No. 829, substituting Section 2-A in lieu of original Section 2 of Article 2 of Ordinance No. 752, adopted July 5, 1938, are involved.

Article 1 of Ordinance No. 752 is entitled "Definitions" and, in part, reads:

"Section 1: The following words, terms and phrases, when used in this ordinance, have the meanings ascribed to them in this section except where the context clearly indicates a different meaning: ...

"`Auto Accessory Dealer' includes any person, etc., who shall buy, manufacture, or assemble and sell or offer for sale any tires or other fixtures, appliances or accessories to or for automobiles, trucks or trailers except persons, etc., who are licensed as merchants.

"`Automobile Dealer' includes any person, etc., who shall buy, for the purpose of sale or trade, or who shall sell, trade or offer to sell or trade automobiles or motor vehicles."

The definitions of many other occupations and businesses are set forth.

Other provisions, material here, are found in Article II of the ordinance and read:

"Section 1: There is hereby levied a license tax upon the privilege of engaging within the limits of this City, in any of the following named occupations or businesses, or doing or operating any of the following named things to-wit: Auto Accessory

142 S.W.2d 1042

Dealer, ... Automobile Dealer, Bakery, ... [Some forty odd occupations or businesses are specifically named.]

"Section 2-A: Said license tax shall be in an amount to be determined in each individual case as follows: Where the annual gross sales or gross receipts of such licensee or applicant for license from such business, occupation, or calling, during the preceding calendar year, have amounted to less than Five Thousand ($5000.00) Dollars, the sum of $11.25 per annum; Where the annual gross sales or gross receipts of such licensee or applicant for license from such business, occupation or calling, during the preceding calendar year, have amounted to more than Five Thousand ($5000.00) Dollars, the said license tax shall, per annum, be $11.25 for the first Five Thousand ($5000.00) Dollars and $2.25 per One Thousand ($1000.00) Dollars for each Thousand Dollars or fractional part thereof in excess of said Five Thousand ($5000.00) Dollars."

"Section 6: Upon making application for license under provisions of this Article, the applicant shall, in person or by duly authorized officer or agent, make and file with the City Clerk in a manner and form prescribed by him and upon blanks furnished by said City Clerk, a statement showing the amount of gross receipts from sales, services and transactions by such applicant during the preceding year and such statement shall be verified by the affidavit of the applicant or his duly authorized officer or agent. Provided that when any person and etc., who has not been engaged in such business during the preceding calendar year shall make application for license, the City Clerk shall estimate the...