City of Odessa v. Borgic
| Decision Date | 01 June 1970 |
| Docket Number | Nos. 25249--25253,s. 25249--25253 |
| Citation | 456 S.W.2d 611 |
| Court | Missouri Court of Appeals |
| Parties | CITY OF ODESSA, Missouri, Plaintiff-Appellant, v. Wilfred BORGIC, Defendant-Respondent. CITY OF ODESSA, Missouri, Plaintiff-Appellant, v. Mrs. Bertha EVANS, Defendant-Respondent. CITY OF ODESSA, Missouri, Plaintiff-Appellant, v. Robert FILLER, Defendant-Respondent. CITY OF ODESSA, Missouri, Plaintiff-Appellant, v. Mr. Joe HALSEY, d/b/a J & J Trailer Court, Defendant-Respondent. CITY OF ODESSA, Missouri, Plaintiff-Appellant, v. John ZULLIG, Defendant-Respondent. |
N. R. Bradley, Lexington, for appellant.
William Aull, III, D. W. Sherman, Jr., Lexington, for respondents.
This appeal of five consolidated cases challenges the authority of Odessa, Missouri, a city of the fourth class, to enact an ordinance requiring payment of an occupation license fee of not less than fifty dollars as prerequisite to the lawful operation of a trailer coach park within the corporate limits.
Each of the five cases originated in the police court of plaintiff city upon complaint that the defendant on a certain day named 'did then and there unlawfully and willfully operate a trailer coach park without a license in violation of ordinance No. 954 of said city.' In each case the defendant was adjudged guilty as charged and his punishment was assessed at a fine of $10.00, together with costs.
All five defendants appealed to the circuit court, where they filed identical motions to dismiss the pending actions. Upon stipulation by the parties and pursuant to order of the court, the five cases were consolidated for trial. Thereafter the circuit court heard evidence on defendants' motions to dismiss, sustained them, and entered orders of dismissal as to each of the five cases. Plaintiff city has appealed.
The parties are in agreement as to controlling facts. At the hearing on the motions to dismiss, Ordinance No. 954 was admitted in evidence by stipulation of the parties. It is preliminarily declared by Section 1 of the ordinance:
'That it is necessary and proper for the city of Odessa, Missouri, to license and regulate trailer camps and mobile home parks, under the powers conferred by the statutes of the State of Missouri for the maintaining of the peace and good government and welfare of the city.'
The first positive mandate of the ordinance is Section 3, quoted as follows:
Section 5 sets the scale of annual charges for the required licenses as follows:
Other sections of the ordinance prescribe extensive regulatory measures and requirements as to: preliminary submission of plans by applicant; character of applicants and employees; location and dimensions of parking spaces; paving of drives; visitors' parking facilities; water supply and metering; sanitary facilities, sewers and sewerage treatment, garbage and trash disposal; provisions for lighting. Section 15 of the ordinance provides penalties for violation of any provision thereof by fine of 'not less than five dollars and not more than two hundred dollars for each offense.'
The parties additionally stipulated, as matters of fact, that each of the defendants was in the business of operating a trailer park or mobile home within the city of Odessa, and was so engaged on the date of the offense charged; that Ordinance No. 954 had previously been adopted by the city; that defendants had made no application for license or paid a fee therefor; and, that Odessa is a city of the fourth class.
The issue for this court's decision is sharply drawn. It is contended by plaintiff city that the ordinance is not a 'licensing or taxing' ordinance, as such, enacted under its delegated authority to tax occupations or businesses. Plaintiff insists that the measure is a valid 'regulatory' ordinance enacted under authority of the city's police powers delegated by V.A.M.S. Section 79.470 () and that the license fee imposed is merely 'incidental' to the expense of regulation of the trailer parks. Section 79.470 reads in essential part as follows:
'79.470. FURTHER POWERS OF BOARD
For any purpose or purposes mentioned in this chapter, the board of aldermen shall have power to enact and make all necessary ordinances, rules and regulations; and they shall also have power to enact and make all such ordinances and rules, not inconsistent with the laws of the state, as may be expedient for maintaining the peace and good government and welfare of the city and its trade and commerce; * * *.'
On the other hand it is submitted by defendants that the ordinance is an attempted license tax measure, enacted contrary to the positive strictures of Section 71.610, quoted as follows:
'71.610. IMPOSITION OF TAX ON BUSINESS, When
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.'
In connection with the restriction imposed by Section 71.610 upon the power of a city to exact occupation license taxes, it is appropriate to examine the source and extent of plaintiff's authority in that respect. Being a city of the fourth class, the City of Odessa has only those powers that are delegated to it by the statutes which constitute its charter. The sole grant of such authority to plaintiff derives from Section 94.270, as revised and amended in 1963, referable to cities of the fourth class, entitled 'Power to License, Tax and Regulate Certain Businesses and Occupations'. It is therein provided:
'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 * * * (110 specifically named businesses and occupations) * * *.'
For the purpose of this appeal it is significant that 'trailer camps', 'mobile home parks', 'trailer coach parks' or 'trailer parks' are not included in the list of businesses specifically named in Section 94.270 and are not susceptible of inclusion therein by implication.
We do not gainsay that plaintiff may have police powers, by reason of Section 79.470, to enact expedient legislation in the interest of the city's general welfare, necessarily referable and restricted to such specific grants of power as are otherwise contained in the body of statutory law which constitutes the city's charter. See Krug v. Village of Mary Ridge, Mo.App., 271 S.W.2d 867; State ex rel. Magidson v. Henze, Mo.App., 342 S.w.2d 261. It is conceivable that plaintiff may be clothed with requisite police authority to regulate and provide for 'orderliness, sanitation, health and safety' (as it claims to have) in the operation of trailer parks, by reason of Section 79.380, which empowers the city to enact ordinances 'for the prevention of the introduction of contagious diseases in the city.' The opinion in Krug v. Village of Mary Ridge, supra, would so indicate. However, those questions are not at issue here as necessary for decision. Nor, assuming that the city has such authority, is it necessary that we determine whether the attempted regulatory provisions of the ordinance are within the scope of its delegated powers, as lawful and appropriate police measures. The narrow issue presented is whether requiring payment of the sum of $50.00 (or more) in order to obtain a license amounts to a 'license tax', within the meaning of those words as intended by the legislature when it enacted Section 71.610, and as that term has been construed by Missouri courts under comparable fact situations involving ordinances attempting to impose 'license fees' on business occupations, without specific charter authority, as plaintiff has undertaken in this case.
Reverting to Section 71.610, we take note of its historical background. Enacted initially in 1889, (as Section 1900), its passage was intended to curb attempts by certain municipal authorities to appropriate and exercise power to license and tax 'all other business, trades, avocations or professions whatever' in addition to those specifically named in the city charter--all contrary to what had previously been the long established and well recognized legal policy of the state. See City of St. Louis v. Laughlin, 49 Mo. 559 decided in 1872, wherein Judge Wagner wrote that 'the state might delegate the authority, (to impose occupation license taxes) but it should be done in clear and unambiguous terms' and that 'to give the words In Siemens v....
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