City of Ozark v. Hammond

• Decision Date: 02 April 1932
• Docket Number: 31458
• Parties: City of Ozark v. Everett Hammond, Appellant
• Court: Missouri Supreme Court

49 S.W.2d 129

329 Mo. 1118

City of Ozark v. Everett Hammond, Appellant

No. 31458

Supreme Court of Missouri

April 2, 1932

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 A. 38; St. Paul v. Briggs, 88 N.W. 985; Kloss v. Commonwealth, 49 S.E. 655; State v. Felterer, 32 A. 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 A. & Pac. Co. v. Cream of Wheat Co., 227 F. 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.

OPINION

Ragland, J.

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:

"Sec. 1. That all persons, firms, corporations who shall, in the City of Ozark, Missouri, sell from Wagon, Automobile trucks, Automobiles or any kind of conveyance to sell, vend and peddle or take orders then afterwards deliver the goods from a conveyance to fill said orders to any person, business man or merchants, any bread, crackers, sugar, coffee, tea, any can goods and any and all kinds of merchandise shall first take out and obtain a license from the City Clerk of Ozark, Missouri, and shall pay a license of $ 36 per annum; $ 18 for the first six months; $ 10 for three months and the sum of $ 1.50 per day."

The cause was heard on the following agreed statement of facts:

"It is further agreed that before and after the passage and approval of the ordinance in question and above set out, the defendant, Everett Hammond, was acting as the agent for and employed by the Nafziger Baking Company, a corporation; that the Nafziger Baking Company has its principal place of business in Springfield, Missouri, at 712 Boonville Avenue in said city; that the Nafziger Baking Company operates a wholesale bakery in Springfield, Missouri, manufacturing and selling its products, such as bread, cakes, pies, pastries, and other bakery products at wholesale, to merchants for resale in Springfield, Ozark, and other towns in Southwest Missouri, and that said products are sold to said merchants to be resold by them to consumers. That the Nafziger Baking company has regular customers among the merchants in Ozark, Missouri, to whom its bread, cakes, pies, pastries and other bakery products are delivered by means of an automobile truck; and that the said Everett Hammond is an employee of the Nafziger Baking Company and drives a truck to the City of Ozark, Missouri, for the purpose of transacting the business of the Nafziger Baking Company. That the Nafziger Baking Company has paid to the State of Missouri the automobile license tax covering said truck, in the sum of $ 16.50, as required by the Statutes of the State of Missouri, and has paid to the City of Springfield, Missouri, a license covering said truck; and has paid to the State of Missouri and to the City of Springfield, Missouri, a manufacturers' and wholesaler's tax, as required by the Statutes of the State of Missouri and the Ordinances of the City of Springfield, Missouri, which said tax covers its operations as a manufacturer and wholesaler of bakery products. That defendant drives the truck and acts as the agent or representative of the Nafziger Baking Company in selling and delivering its products to merchants who are regular customers of the Nafziger Baking Company at Ozark, Missouri. That there is an understanding between said merchants, the defendant, and the Nafziger Baking Company, that there shall be delivered to said merchants, each day, such bread, cakes, pies, pastries, and other bakery products, as they need for their daily sales; and that such stale bread, cakes, pies, pastries, and other bakery products that each merchant has left is taken back by the defendant and Nafziger Baking Company and the merchant given credit for the bread, cake, pies, pastries, etc., so taken back as stale. That defendant loads the said truck from the plant of the Nafziger Baking Company in the ...