City of Ozark v. Hammond
Decision Date | 02 April 1932 |
Docket Number | No. 31458.,31458. |
Parties | CITY OF OZARK v. EVERETT HAMMOND, Appellant. |
Court | Missouri Supreme Court |
Appeal from Christian Circuit Court. — Hon. Robert L. Gideon, Judge.
REVERSED.
Allen & Allen for appellants.
(1) The court erred in refusing to sustain defendant's demurrer, offered at the close of all the evidence in the case. (a) The ordinance which is the basis of this prosecution, is void, because it is not in harmony and is broader than the general law. A city cannot widen its charter powers by ordinance and where there is a general law on the subject the ordinance must be in harmony with that law. Moberly v. Hoover, 93 Mo. App. 667; State v. Hoffman, 50 Mo. App. 585; Trenton v. Clayton, 50 Mo. App. 535; St. Louis v. Meyer, 185 Mo. 583. The ordinance in question seeks to extend the taxing power of the city of Ozark, beyond the powers given it in its charter, and by the Statutes of Missouri, and is therefore void. (b) The ordinance in question seeks to levy a license tax for revenue purposes on an occupation not specifically named in its charter, and is therefore void. Sec. 7046, R.S. 1929; Sec. 7287, R.S. 1919; Pierce City v. Hentschel, 210 S.W. 31; Seamans v. Shreve, 296 S.W. 415; Keane v. Strodtman, 18 S.W. (2d) 896. If the ordinance is an occupation tax, the city of Ozark derives its power to levy the tax under Sec. 7046, R.S. 1929. The city of Ozark is not given the power under that statute to levy such a tax on a "wholesale bakery" nor on the occupation of "selling and delivering from a motor truck." Therefore, the ordinance is void, under Sec. 7287, R.S. 1929, because these occupations are not specifically named in the charter of the city of Ozark. (c) A city cannot tax property or occupations carried on outside of the city limits. Corn v. Cameron, 19 Mo. App. 573; St. Charles v. Nolle, 51 Mo. 122; St. Claire v. George, 33 S.W. (2d) 1019. (d) The city of Ozark has no right under its charter, to levy an occupation tax on a wholesale bakery, and therefore could not levy an occupation or license tax on the defendant, who is the agent of a wholesale bakery. Independence v. Cleveland, 167 Mo. 384. A person who deals at wholesale only, and sells only to merchants for the purpose of resale, and who has a fixed place of business from which the business is conducted, is not a peddler. Hays v. Commonwealth, 55 S.W. 425; Commonwealth v. Standard Oil Co., 93 S.W. 613; Newport v. French Bros., 183 S.W. 532; Kentucky Oil Co. v. Commonwealth, 233 S.W. 892; Castles Ice Cream Co. v. Perth Amboy, 146 Atl. 38; St. Paul v. Briggs, 88 N.W. 985; Kloss v. Commonwealth, 49 S.E. 655; State v. Felterer, 32 Atl. 395; Stanford v. Fischer, 35 N.E. 500; In re Watson, 97 N.W. 466; Ex parte Hogg, 156 S.W. 932; Peterson v. Freemon, 228 N.W. 256. The defendant is the agent of a manufacturer and wholesaler and is therefore not a peddler and cannot be required by the city of Ozark to pay a license or occupation tax as such. (e) The defendant is not a merchant and therefore does not come within provisions of Sec. 7046, R.S. 1929, which allows the city of Ozark to levy an occupation or license tax on merchants. Viquesney v. Kansas City, 305 Mo. 498, 266 S.W. 700; State ex rel. International Shoe Co. v. Chapman, 276 S.W. 34; Great Atl. & Pac. Co. v. Cream of Wheat Co., 227 Fed. 47. The defendant is the agent of a manufacturer and wholesaler and cannot therefore be said to be a merchant within the meaning of that term in Sec. 7046, R.S. 1929. (f) The city of Ozark does not have the right to tax a truck of an outside resident, engaged in bringing goods into the city. St. Charles v. Nolle, 51 Mo. 122; St. Claire v. George, 33 S.W. (2d) 1019; Sec. 7780, R.S. 1929. The truck in question belonged to a resident of the city of Springfield, Missouri, and was used to distribute its products in a wholesale way, which it had a right to do under the law, without paying any additional tax for that privilege.
G. Purd Hays for respondent.
(1) The city of Ozark can pass any kind of ordinance not repugnant to the Constitution and Laws of the State of Missouri for the benefit of trade in said city. Sec. 7018, R.S. 1929. (2) The city can pass ordinances as in this case to tax and regulate business in said city. Sec. 7046, R.S. 1929; Wonner v. Carterville, 142 Mo. App. 120. The city can demand a license from party taking orders for goods and delivering later. Eldorado Springs v. Highfill, 268 Mo. 501.
Appellant was convicted in the Police Court of the City of Ozark of violating a certain ordinance of said city. On appeal and trial de novo in the Circuit Court of Christian County he was again convicted and adjudged to pay a fine of $5 and costs of suit. From such judgment he was granted an appeal to the Springfield Court of Appeals. In that court the judgment of the circuit court was affirmed, but on the dissent of one of the judges the appeal was certified here.
The ordinance provisions which appellant was charged with violating were as follows:
The cause was heard on the following agreed statement of facts: ...
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