City of Cape Girardeau v. Harris Truck & Trailer Sales, Inc.

• Decision Date: 14 April 1975
• Docket Number: No. 1,No. 58685,58685,1
• Citation: 521 S.W.2d 425
• Parties: CITY OF CAPE GIRARDEAU, a Municipal Corporation, Appellant, v. HARRIS TRUCK AND TRAILER SALES, INC., and Wiethop Truck Sales, Inc., Respondents
• Court: Missouri Supreme Court

Page 425

521 S.W.2d 425

CITY OF CAPE GIRARDEAU, a Municipal Corporation, Appellant, v. HARRIS TRUCK AND TRAILER SALES, INC., and Wiethop Truck

Sales, Inc., Respondents.

No. 58685.

Supreme Court of Missouri, Division No. 1.

April 14, 1975.

Thomas M. Utterback, City Atty., Cape Girardeau, for appellant.

Joseph J. Russell, Limbaugh, Limbaugh & Russell, Cape Girardeau, Walter S. Drusch, Jr., Spradling, Drusch & Dillard, Cape Girardeau, for respondents.

LAURANCE M. HYDE, Special Commissioner.

Action by the City to collect a gross sales license tax from defendants. Motions of defendants to dismiss were sustained and the city has appealed. We have jurisdiction because construction of the revenue laws of this State is involved. See Petrolene, Inc. v. City of Arnold, 515 S.W.2d 551 (Mo.1974). We affirm.

Section 71.610 requires power of a city to impose a license tax on any business avocation, pursuit or calling to be specifically named as taxable in its charter or conferred by statute. Section 94.110 specifies the businesses upon which a third class city may levy and collect a license tax. The issue in this case is whether the city may levy and collect a license tax on defendants on the sale of 'Trucks, Tractors, Tractor Trailers and accessories for these types of vehicles and other Merchandise,' which is the description of defendants' business stated in the city's petition.

Section 94.110 provides: 'authority to levy and collect a license tax on * * * automobile agents and dealers, automobile accessory dealers.' The city ordinance involved, using substantially these statutory terms, levied a license tax on 'auto accessories dealer, automobile agency, automobile dealer.' Plaintiff states each of the defendants are 'in the business of selling trucks, tractor trailers and accessories for these types of vehicles and other merchandise at retail.'

Section 94.110 (§ 4863, RS 1879) was originally enacted in 1877 and of course then made no reference to automobile dealers. In fact only a few of the businesses now included in § 94.110 were then specified. In 1917, a new statute, Laws 1917, p. 373, amending this statute, then § 9253, RS 1909, was enacted to authorize collection of a license tax on many more businesses and occupations and for the first time included 'automobile agents and dealers, and automobile accessory dealers.' Defendants contend this did not authorize imposing a license tax on them. They point out that neither this provision of § 94.110 nor the City ordinance mentions 'truck dealers,' 'tractor dealers,' or 'tractor trailer dealers.' Defendants also show that the statute does recognize and distinguish between trucks and automobiles because it authorizes a license tax on 'delivery trucks,' 'ice trucks' and 'transfer trucks.' In Petrolene, Inc. v. City of Arnold, 515 S.W.2d 551, 553 (Mo.1974), we held that 'licensing authority granted * * * is to be strictly construed against the city' citing Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 415 (banc 1927); City of Odessa v. Borgic, 456 S.W.2d 611 (Mo.App.1970); and 71 Am.Jur.2d, State and Local Taxation § 87, p. 410.

The City cites several cases from other states. Bonds v. State, 16 Ga.App. 401, 85 S.E. 629 (1915), cited, construed a statute regulating the running of automobiles, locomobiles and 'other vehicles and conveyances of like character, propelled by steam, gas, gasoline, electricity, or any power other than muscular power' to include motorcycles. It was held that motorcycles were vehicles of like character and were included. However, we have no such broad language in the statute herein involved. The City also cites Bethlehem Motors Corporation v. Flynt, 178 N.C. 399, 100 S.E. 693 (1919), which involved a state tax on manufacturers of automobiles brought into the state. The Court held 'motor trucks' were included. Kellaher v. City of Portland, 57 Or. 575, 112 P. 1076 (1911), cited, held void a city tax on vehicles including "automobile or other vehicle, which shall be used for the conveyance' of persons, goods or for any other business.' The court said: 'Objection is also made that the ordinance does not include auto trucks used for hire or without hire, but we think the term 'automobile' is sufficiently comprehensive to include them.' It would seem more reasonable to hold that the first above quoted language ('other vehicle' etc.) included them. In State v. Freels, 136 Tenn. 483, 190 S.W. 454 (1916), cited by the City, it was held the title to a legislative act referring only to 'automobiles' was sufficient for the constitutionality of a statute regulating 'the operation of any automobile, locomobile, motorcycle, or any other vehicle of like character.' Two Wisconsin cases, Wiese v. Polzer, 212 Wis. 337, 248 N.W. 113 (1933), and Nelson v. Ohio Casualty Ins. Co., 29 Wis.2d 315, 139 N.W.2d 33 (1966), are also cited. Wiese involved a statute prohibiting riding on a fender and Nelson involved an action on an insurance...