City of Aurora v. McGannon

• Decision Date: 09 March 1897
• Parties: CITY OF AURORA v. McGANNON.
• Court: Missouri Supreme Court

39 S.W. 469

138 Mo. 38

CITY OF AURORA v. McGANNON.

Supreme Court of Missouri, Division No. 1.

March 9, 1897.

MUNICIPAL CORPORATIONS — OCCUPATION TAX — AUTHORITY TO LEVY — ORDINANCE — CONSTITUTIONAL LAW.

1. By Rev. St. 1889, § 1588, a city of the fourth class is authorized, by ordinance, to levy and collect necessary taxes; by section 1589, to tax merchants and peddlers, to levy and collect taxes, and to enforce them by fine. Sections 1603 and 1604 prescribe the mode for levying the taxes provided for in section 1588; and section 1605 authorizes a provision by ordinance for the levy and collection of all other taxes. Held, that cities of the fourth class can levy an occupation tax on merchants, as well as an ad valorem tax on their stocks in trade.

2. The grant of the power to levy and collect such taxes carried with it the authority to adopt any reasonable method to make the power effectual.

3. Where a city is authorized to levy an occupation tax upon merchants, as well as an ad valorem tax on their stocks in trade, an ordinance imposing an occupation tax of $3 a year when a merchant's stock is over $1,000, and a tax of $2 when less, and an ad valorem tax on the highest amount of his stock between the first Mondays in March and June in each year, equal to that levied on real estate, is not in violation of the constitutional requirement that taxes must be uniform.

Appeal from circuit court, Lawrence county; W. M. Robinson, Judge.

Action by the city of Aurora against Pete McGannon to recover a fine for the violation of an ordinance, in refusing to take out and pay for a merchant's license. From a judgment in favor of defendant, plaintiff appeals. Reversed.

H. E. Ragsdale, for appellant. Carr McNatt and Edw. J. White, for respondent.

BRACE, J.

The plaintiff is a city of the fourth class. The defendant is a merchant, doing business in said city, with a stock of goods of the value of $5,000. By the ordinances of said city all merchants doing business in said city are required to take out a license, and it is provided that, when the stock carried by any such merchant amounts to less than $1,000, he shall pay an annual license fee of $2, and, when it amounts to more than $1,000, he shall pay an annual license fee of $3, and that he shall pay an ad valorem tax on the highest amount of his stock between the first Monday in March and the first Monday in June in each year, equal to that which is levied upon real estate; and it is further provided that, if such merchant does business without taking out such license, he shall be deemed guilty of a misdemeanor, and punished by a fine of not less than $5 nor more than $100. The defendant did business in the year 1893 without taking out a merchants' license, as required by the ordinances, and in December of that year was proceeded against in the police court of said city, where he was fined $5; and, from the judgment rendered therein against him for such fine and costs, he appealed to the circuit court, where the case was tried upon an agreed statement of the facts, and the court found and declared said ordinances unconstitutional, and rendered judgment for the defendant, from which the plaintiff appeals.

1. Appellant, in its original brief, contended that the circuit court committed error in trying the case de novo on the appeal, under the statute as it then existed (Rev. St. 1889, § 1646), and insisted that it should have been tried only on the record of the police court. But, in its reply brief, it concedes that the ordinances in question are a part of the record, and the case was tried in both courts below under an agreed statement of facts, and "the ordinance itself, which is the bone of contention here, was before the circuit court, and the question of trial `de novo' or `on the record' is only a question of practice, so far as this case is concerned." We do not deem it necessary or profitable to rule upon this question of practice, since the ground of that contention has been removed as to any future case by an amendment to that section (Sess. Acts 1895, p. 73, § 44), and shall confine our consideration to the real question in the case, which is whether the provisions of the ordinances aforesaid are obnoxious to the constitution and laws of the state.

2. By section 1588, art. 5, c. 30, Rev. St. 1889, the mayor and board of aldermen of cities of the fourth class are granted the power, "by ordinance, to levy and collect such taxes upon real and personal property within the city as shall be necessary for the purpose of the corporation"; and by section 1589, same article, they are granted the power, by ordinance, "to tax merchants, peddlers, and to regulate the sale of liquors under merchants' license or otherwise," "to levy and collect taxes," "and to enforce the same by fine" "not exceeding one hundred dollars." Sections 1603 and 1604 prescribe the mode for levying the taxes provided for in section 1588; and section 1605 authorizes the board to provide by ordinance "for the levy and collection of all other taxes, including poll taxes, licenses, wharfage and other dues, and fix the penalties for neglect or refusal to pay the same." The mode prescribed by the ordinances in question for levying and collecting the tax on merchants is like unto that provided by statute for the levying and collecting of state taxes on merchants. Rev. St. 1889, c. 111, §§ 6894-6897. It is contended by counsel for the defendant that no power is given by statute to the plaintiff to impose a license tax on merchants, and in support of that contention we are cited to section 1900, Rev. St. 1889, which reads as follows: "No municipal corporation in this state shall have the power to impose a license tax upon any business avocation, pursuit or calling, unless such business avocation, pursuit or calling is specially named as taxable in the charter of such municipal corporation, or unless such power be conferred by statute." The contention, so far as it is based on this section of the statute, is sufficiently answered by the quotation hereinbefore made from the statute governing cities of the fourth class, in which the avocation of a merchant is specially named as subject to taxation by such cities; and, being so named, this section, instead of prohibiting such a tax, implies the power to levy a license tax upon such occupation. In support of this contention, we are next cited to the fact that, in the grant of power to cities of the first, second, and third classes, the word "license" is used in immediate connection with the word "tax" (Rev. St. 1889, §§ 1029, 1255, 1506); and, from the fact that it is not so used in the grant of power to cities of the fourth class, it is argued that it was not the intention of the legislature that cities of the third class should have the power of taxing merchants by way of license. The force of this argument, if it has any, is, however, somewhat impaired by the fact that the two words are used in the same connection in the grant of power to vilages as in the grant to cities of the first, second, and third classes, and no good reason can be given why the power should be conferred on the municipalities of all other classes above and below, and be denied to cities of the fourth class. A complete answer to the argument is, however, to be found in the fact that the powers granted to each class are in our statutes made the subject of a separate and distinct article, each constituting the charter of the class to which it is made applicable; and the powers of each are to be measured by the terms thereof, and the real question is, can the disputed power be found within those terms? "It is...