City of Carterville v. Blystone

• Decision Date: 04 December 1911
• Parties: CITY OF CARTERVILLE, Appellant, v. ROBERT BLYSTONE, Respondent
• Court: Missouri Court of Appeals

141 S.W. 701

160 Mo.App. 191

CITY OF CARTERVILLE, Appellant, v. ROBERT BLYSTONE, Respondent

Court of Appeals of Missouri, Springfield

December 4, 1911

Appeal from Jasper Circuit Court.--Hon. Joseph D. Perkins, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

A. M Baird, S.W. Bates and W. R. Robertson for appellant.

(1) The city may levy three taxes under its charter powers: first, a tax on property; second, a vehicle tax for the use of the streets; third, a tax on the business or occupation. St Louis v. Weitzel, 130 Mo. 619; Harder's Co. v Chicago, 85 N.E. 245. (2) The license sought to be imposed in this case is based solely on the principle that those who, in the course of their business, wear the streets shall contribute to their maintenance, being of the same nature as tolls charged by private corporations for the use of ther turnpikes and such charges are commendable and just. Wonner v. Carterville, 142 Mo.App. 120; Gartside v. East St. Louis, 43 Ill. 47; St. Louis v. Green, 7 Mo.App. 468, 70 Mo. 562; St. Louis v. Weitzel, 130 Mo. 619; Kansas City v. Richardson, 90 Mo.App. 450; Kansas City v. Sith, 93 Mo.App. 217; Tomlinson v. Indianapolis, 43 N.E. 9; Harders' Co. v. Chicago, 85 N.E. 255; Terre Haute v. Kersy, 64 N.E. 472; Lancaster v. Biggs, 118 Mo.App. 574; Ft. Smith v. Scruggs, 58 L. R.A. 923; Brown v. Mobile, 25 So. 225. (3) The fee required by the ordinance in this case, being based upon the principle that it is a toll for the use of the streets, is separate and distinct from the business or occupation in which the wagon may be engaged and it makes no difference that the owner of the wagon is a nonresident or the business with which it is connected, together with the wagon, may be kept and maintained outside the city limits, while not used upon the streets of said city. Wonner v. Carterville, 142 Mo.App. 120; Mason v. Cumberland, 48 A. 136; Memphis v. Battaile, 24 Am. Rep. (Tenn.) 285; Frommer v. Richmond, 31 Am. Rep. 746. (4) It is unimportant that the principle portion of the business of the company owning the wagon may be conducted outside of the city limits of Carterville, provided the wagon is used upon the streets of the city in the regular course of business of respondent, such city being within the immediate trade area and district of the respondent. Sacramento v. Stage Co., 12 Cal. 134; Deere Plow Co. v. Wyland, 76 P. 863; State v. Bank, 54 Am. St. Rep. 141.

Grover C. James for respondent.

NIXON, P. J. Cox, J., concurs. Gray, J., concurs in separate opinion.

OPINION

NIXON, P. J.--

The defendant was tried in the police court of the city of Carterville upon the following complaint: (Formal parts omitted.)

"Comes now A. M. Baird, city attorney within and for the city of Carterville, and informs the court, complains of and charges the facts to be: That one Robert Blystone, defendant, on the 5th day of October, 1910, within the corporate limits of the city of Carterville, Missouri, did then and there unlawfully use and operate upon the streets of said city a vehicle, to-wit, a two-horse wagon commonly known as a dray and transfer wagon, for the purpose of trade, traffic and commerce, to-wit, the carrying on of the dray and transfer business for and on behalf of the Joplin Transfer and Storage Company, a corporation duly organized under the laws of the State of Missouri and doing business in said Jasper county, without the said Robert Blystone or the said Joplin Transfer and Storage Company having first had and obtained a license therefor from the said city of Carterville, Missouri; against the peace and dignity of and city of Carterville, and in violation of sections 2, 4, 5, 7 and 8 of Ordinance Number 129 of said city, which said ordinances was passed and approved on the 16th day of June, 1910.

"Wherefore, plaintiff prays judgment against the said defendant in the sum of one hundred dollars and for costs of the case, and that said defendant stand committed until all fines and costs be paid."

The ordinance which defendant was charged to have violated, so far as necessary to understand the questions involved in this case, is as follows:

"Sec. 2. There is hereby levied and fixed a license tax upon the various objects, subjects, vocations, occupations and trades hereinafter in this ordinance mentioned, within the city of Carterville, Missouri, and the same shall be licensed, taxed and regulated as hereinafter provided.

"Sec. 3. It shall be unlawful for any person, firm or corporation to exercise, carry on or engage in any of the following business, trades, vocations, or occupations, in the city of Carterville, Missouri, without first having obtained a license therefor from the said city, and the charge for such license shall be as follows:

"Sec. 4. For each vehicle or wagon used or operated upon the streets of the city of Carterville, Missouri, for the purpose of trade, traffic or commerce, as follows: Each one-horse wagon, $ 7.50 per annum. Each two-horse wagon, $ 10 per annum. . . .

"Sec. 5. It shall be unlawful for any person, firm or corporation to operate or use, directly or indirectly, upon the streets of the city of Carterville, Missouri, any vehicle or wagon upon which said vehicle or wagon there is by the terms of this ordinance a license tax levied and fixed, without first having had and obtained a license therefor, and any person, firm or corporation so doing, or assisting directly or indirectly in so doing in any manner either as owner, proprietor, or as officer, manager, superintendent, agent, servant or employee, shall be guilty of a misdemeanor and of a separate and distinct offense and misdemeanor under the provisions hereof for each period of twenty-four hours in which such vehicle or wagon is so used, or operated, and shall be proceeded against as in case of other misdemeanors within the meaning of this evidence, and upon conviction thereof shall be fined for each misdemeanor or offense in any sum not less than five dollars nor more than one hundred dollars."

This case was tried upon an agreed statement of facts from which it appears that the Joplin Transfer and Storage Company was engaged in the transfer and storage business, having its office in the city of Joplin where it kept its teams, wagons, equipment and drivers; that the said city of Joplin is about seven miles distant from the city of Carterville, and that the city of Webb City is situated between the two said cities, and that all three of said cities together, with the thickly populated portions of Jasper county lying adjacent to said cities, comprise one trade area and district from which the said Joplin Transfer and Storage Company obtained its transfer and storage business; that the defendant was employed by said company as a driver of one of its dray wagons used by the company for the transfer of goods for hire; that the company held itself out to the public in the cities of Joplin, Webb City and Carterville, as conducting a transfer business, hauling and transferring property for hire from points outside of the city of Carterville to points within the city, and from points within the city to points outside of the city; that the company received orders in the course of its business for the moving of property from points within the city of Carterville to points outside, and that it did repeatedly and habitually and as a business send its two-horse wagons and vehicles into the city of Carterville upon the streets and public highways of said city for the purpose of hauling and transferring articles that persons desired to have transferred, but that said company would not accept for transportation articles to be hauled from a point within said city to any other point within said city, and all requests for the hauling of goods from a point within said city to any other point within said city were by said defendant and said company declined.

The sole question involved is as to the right of the plaintiff city to exact a license tax of defendant for the use of its streets by defendant in carrying on the transfer business in the manner indicated. Of course, this case is to be decided on its own basis of facts and does not require the consideration of cases where the ultimate facts involved were dissimilar to those presented in this record.

The questions involved in this appeal are closely analogous to those passed upon by this court in the case of Wonner et al. v. City of Carterville, 142 Mo.App. 120, 125 S.W. 861. An ordinance of the city of Carterville, very similar to the ordinance in question in the present case, was under consideration. The respondents in that case challenged the authority of the city under its charter to levy a tax on their wagons, and it was said in that opinion the statute (sec. 5979, R. S. 1909) provides that that "cities of the fourth class (of which the city of Carterville is one) shall have and exercise exclusive control over all streets, alleys, avenues and public highways within the city limits of such city," and that section 5978, Revised Statutes 1909, provides that "the mayor and board of aldermen shall have power and authority to regulate and to license, and to levy and collect a license tax on . . . merchants of all kinds, grocers, . . . butchers, . . . hackney-carriages, omnibuses, carts, drays, transfer and job wagons, ice wagons, and all other vehicles . . . and all other businesses, trades and avocations whatever."

The controversy is that case arose over bakers' wagons. The wagons sought to be charged with a license tax, as well as the horses, and entire outfit, were from Joplin and Webb City, and belonged to persons who resided outside the limits of the city of Carterville. The wagons were loaded with bakery products outside the city and...