City of Aurora v. McGannon

• Decision Date: 09 March 1897
• Citation: 39 S.W. 469,138 Mo. 38
• Parties: City of Aurora, Appellant, v. McGannon
• Court: Missouri Supreme Court

39 S.W. 469

138 Mo. 38

City of Aurora, Appellant, v. McGannon

Supreme Court of Missouri, First Division

March 9, 1897

Appeal from Lawrence Circuit Court. -- Hon. W. M. Robinson, Judge.

Reversed and remanded.

H. E Ragsdale for appellant.

(1) The statute granting the right of appeal from the judgment of the police judge does not give the right of trial de novo. The circuit court should therefore have affirmed the judgment of the police judge, on the record, no error appearing therein. 1 R. S. 1889, sec. 1646, p. 457; Lewis v. Nuckolls, 26 Mo. 278; Bernard v. Callaway Co., 28 Mo. 37; Colville v. Judy, 73 Mo. 653; Lacy v Williams, 27 Mo. 280; McVey v. McVey, 51 Mo 406, loc. cit. 413. (2) The city has a right to charge a license tax. Horr & Bemis, Mun. Police Ord., secs. 257-259, p. 251; Same, sec. 287, p. 276; City of St. Louis v. Green, 7 Mo.App. 468; City of St. Louis v. Green, 70 Mo. 562; City of St. Louis v. Sternberg, 69 Mo. 289; R. S. 1889, secs. 1589, 1603, 1604, 1605, 1900; Express Co. v. City of St. Joseph, 66 Mo. 675, 680; DeArman v. Williams, 93 Mo. 158. (3) The ordinance in evidence is in perfect harmony with section 3, article 10, of the State Constitution, and not in violation of it, as claimed by respondent. State v. Addington, 77 Mo. 110; State ex rel. Harris v. Laughlin, 75 Mo. 147; Phillips v. Railroad, 86 Mo. 540; Railroad v. Evans & Howard Brick Co., 85 Mo. 307; St. Louis v. Foster, 52 Mo. 513, 515; St. Louis v. Sternberg, 69 Mo. 289; Ex. Co. v. St. Joseph, 66 Mo. 675; St. Louis v. Green, 7 Mo.App. 468, 478; Idem, 70 Mo. 562; St. Louis v. St. L. & N. O. Trans. Co., 84 Mo. 156; R. S. 1889, sec. 7217, p. 1683; Cooley on Taxation [2 Ed.], pp. 169-171. (4) The inhibition of section 4, article 10, of the Constitution, is against the taxation of property according to its value on the assessment list of the assessor, and not against a license tax. Glasgow v. Rowse, 43 Mo. 479, 480; St. Louis v. Bowler, 94 Mo. 630; St. Louis v. Consolidated Coal Co., 113 Mo. 83. (5) It is not true, that because the ad valorem tax on the license is increased by $ 2 for small merchants and $ 3 for large merchants, that the ordinance violates section 11, article 10, of the Constitution. St. Louis v. Green, 7 Mo.App. 468, 475; Same, 70 Mo. 562; DeArman v. Williams, 93 Mo. 158. The ordinance is modeled after the State laws concerning merchants. R. S. 1889, ch. 3, p. 1617. (6) The city has a right to require a bond for the payment of the ad valorem tax on the license falling due October 1 next after issuing the license. 1 R. S. 1889, sec. 1605, p. 453; Ex. Co. v. St. Joseph, 66 Mo. 675; Aurora Water Co. v. City of Aurora, 129 Mo. 540, 576; State v. Walbridge, 119 Mo. 384, and cases cited. (7) The carrying on of the business being unlawful, the respondent is liable to the penalty prescribed by the ordinance. 1 R. S. 1889, sec. 1589, p. 446, also 1 R. S. 1889, sec. 1605, p. 453; City of St. Louis v. Sternberg, 69 Mo. 289, 299; City of St. Louis v. Green, 70 Mo. 562; State v. Cox, 32 Mo. 566; State v. Willis, 37 Mo. 192; State v. Myers, 63 Mo. 324; St. Louis v. Green, above cited.

Carr McNatt, with whom is Edw. J. White, for respondent.

(1) There is nothing in appellant's first contention. When the appeal was taken from the police judge to the circuit court of Lawrence county, such court was possessed of the cause de novo, or else the appeal was fruitless. Boggs v. Brooks, 45 Mo. 232; St. Joseph v. Davenport, 55 Mo. 572; sec. 1646, R. S. 1889; sec. 1639, R. S. 1889; The Town of Carrollton v. Rhomburg, 78 Mo. 547, loc. cit. 549; 1 Dillon, Mun. Corp. [4 Ed.], sec. 440; 2 Dillon, Mun. Corp. [4 Ed.], secs. 908, 927. (2) The appellant had no right to impose a license tax upon merchants. Its charter gave it no such power, and the statute prohibits it from so doing. R. S. 1889, sec. 1900; compare subdiv. 5, sec. 1029, R. S. 1889; subdiv. 17, sec. 1255, R. S. 1889; sec. 1506, R. S. 1889; with sec. 1589, R. S. 1889. If the authority was plainly conferred upon it, appellant might "tax" the merchant upon the license issued by the State, but could not require him to take out further license, without special authority so to do, -- no such authority is given in appellant's charter, and its act in that respect is utterly void. Cooley on Taxation [2 Ed.], p. 573, et seq., note 3, and cases there cited; Cooley on Taxation [2 Ed.], p. 574; 1 Dillon, Mun. Corp., sec. 361; Cairo v. Bross, 101 Ill. 475; 2 Dillon, Mun. Corp., sec. 763; 1 Dillon, Mun. Corp., sec. 357; State v. Bean, 91 N.C. 554; 13 Am. and Eng. Ency. Law, pp. 529, 530. (3) The appellant had no power to compel respondent to give a bond for the payment of his merchant's tax, and its attempt to imprison him for failing to do so was without the semblance of authority. Such power must be plainly given or necessarily inferred. 1 Dillon, Mun. Corp. [4 Ed.], sec. 87, et seq. and notes; City of Kansas v. Swope, 79 Mo. 448; Leach v. Cargill, 60 Mo. 316; St. Louis v. Bell Tel. Co., 96 Mo. 623; State v. Bennett, 19 Neb. 191; Glasgow v. Rowse, 43 Mo. loc. cit. 489, 490; 2 Dillon, Mun. Corp. [4 Ed.], sec. 818; St. Louis v. Russell, 9 Mo. 503. (4) The ordinance under which respondent was tried is a plain violation of section 3, article 10, of the Constitution of Missouri; the tax sought to be collected was not uniform upon the same class of subjects within the territorial limits of appellant. See appellant's abstract, pp. 11 and 12; section 3, article 10, Constitution of Missouri; Cooley on Taxation [2 Ed.], p. 169; R. S. 1889, secs. 6894 and 7764; City of St. Louis v. Spiegel, 75 Mo. 145; City of St. Louis v. Spiegel, 90 Mo. 588; Hor. and Bemis, Munc. Pol. Or., sec. 287, p. 276; 2 Dillon, Mun. Corp. [4 Ed.], sec. 750; Cooley on Taxation [2 Ed.], pp. 169, 170, 171; St. Louis v. Bowler, 94 Mo. loc. cit. 634; St. Louis v. Cons. Coal Co., 113 Mo. loc. cit. 88. (5) The tax sought to be collected was "ad valorem" in its nature, but not in proportion to the value of the goods attempted to be taxed. It levied $ 2 for $ 999.99 valuation and $ 3 for only one cent more, and only $ 3 for $ 100,000 more. This is in plain violation of the Constitution of Missouri. Const., Mo., sec. 4, art. 10; R. S. 1889, sec. 6896; Welton v. State, 91 U.S. 275. "If this is not discrimination, what is it?" St. Louis v. Spiegel, 90 Mo. loc. cit. 593; Dillon, Mun. Corp. [4 Ed.], sec. 768; Cooley on Taxation [2 Ed.], 170, 171. (6) The ordinance sought to evade section 11, article 10, of the Constitution, which prohibited appellant from levying more than fifty cents on the $ 100 valuation for any purpose. It makes the value of the goods carried a basis for the amount of its levy; and at the same time tries to evade the effect of an illegal levy by calling it a "License Tax." Const., sec. 11, art. 10; State v. Welton, 91 U.S. 275.

OPINION

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 his 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 (R. S. 1889, sec. 1646) and insisted that it should have been tried only on the record of the police court. But as in his reply brief he 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, sec. 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, article 5, chapter 30, Revised Statutes, 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...