City of Sedalia v. Standard Oil Co. of Indiana

• Decision Date: 03 August 1933
• Docket Number: No. 9653,9654-9658.,9652,9653
• Citation: 66 F.2d 757
• Parties: CITY OF SEDALIA, ex rel. and to Use of BAUMAN, City Treasurer, v. STANDARD OIL CO. OF INDIANA, and six other cases.
• Court: U.S. Court of Appeals — Eighth Circuit

66 F.2d 757 (1933)

CITY OF SEDALIA, ex rel. and to Use of BAUMAN, City Treasurer, v. STANDARD OIL CO. OF INDIANA, and six other cases.

Nos. 9653, 9652, 9654-9658.^*

Circuit Court of Appeals, Eighth Circuit.

August 3, 1933.

Frank W. Hayes, of Sedalia, Mo. (E. W. Jones, W. D. O'Bannon, Fred M. Ross, and Lawrence Barnett, all of Sedalia, Mo., on the brief), for appellant.

Lee Montgomery, of Sedalia, Mo. (Buell F. Jones, of Chicago, Ill., Eben H. Jones, of Cleveland, Ohio, Cliff V. Peery and Walter E. Brown, both of Kansas City, Mo., and John T. Martin and John Z. Montgomery, both of Sedalia, Mo., on the brief), for appellee Standard Oil Co. of Indiana.

James T. Dolan, of St. Louis, Mo. (Guy A. Thompson, Samuel A. Mitchell, Frank A. Thompson, and Truman Post Young, all of St. Louis, Mo., on the brief), for appellee Shell Petroleum Co.

James P. Kem, of Kansas City, Mo. (W. H. Bohling, of Sedalia, Mo., on the brief), for appellees White Eagle Oil & Refining Co. and White Eagle Oil Corporation.

J. C. Denton, R. H. Wills, J. H. Crocker, I. L. Lockewitz, and J. P. Grove, all of Tulsa, Okl., for Mid-Continent Petroleum Co.

Before STONE and WOODROUGH, Circuit Judges, and MUNGER, District Judge.

MUNGER, District Judge.

In this suit, the city of Sedalia, Mo., as plaintiff, now appellant, sought to collect from the defendant, now appellee, upon a claim for taxes due to the city. For that purpose it filed a bill in equity, containing two causes of action. The defendant's motion to dismiss the bill was sustained, and this appeal was taken. Similar proceedings were had in similar cases where the Shell Petroleum Company, the Skelly Oil Company, the Sinclair Refining Company, the White Eagle Oil & Refining Company et al., the Mid-Continent Petroleum Company, and the National Refining Company were defendants. By stipulation of parties and an order of this court the appeals were consolidated for presentation in this court, with leave that the transcript of the record in the Standard Oil case should be printed and that the appeals in the other cases should abide by the decision of this court in this case.

In the first cause of action the plaintiff based its right to recovery upon the terms of an ordinance of the city passed in 1924 and entitled "An ordinance providing for the licensing of persons, firms or corporations engaged in the business of selling gasoline and transporting same through the streets of the City of Sedalia, Missouri, and providing a tax of one-half of one cent per gallon on all gasoline so sold and providing penalties for the violation of said ordinance."

Sections 1, 2, and 6 of the ordinance were as follows:

"Section 1. No person, firm or corporation shall engage in, carry on or conduct the business of selling gasoline and transporting the same in barrels, tank wagons or other containers having a capacity of more than five (5) gallons without first having obtained a license so to do from the City Clerk.

"Section 2. Every person, firm or corporation, engaged in the business defined in Section 1 hereof shall pay the City Treasurer a quarter-annual license tax of one-half of one cent per gallon on or before the 15th day of December, March, June, and September of each year for the preceding period of three months and ending as aforesaid."

"Section 6. The provisions of this Ordinance shall not apply to gasoline shipped out of this City to other cities, towns and villages by the persons subject to the payment of the license tax provided for in Section 2 hereof."

The ordinance contained provisions relating to the keeping of records of the sales of gasoline, the making of reports to the city, and imposing penalties for violation of the ordinance. The plaintiff alleged that from September 1, 1924, until March 31, 1928, the defendant was engaged in Sedalia in carrying on the business of selling gasoline and transporting it in barrels, tank wagons, and other containers having a capacity of more than five gallons, but had only paid part of the tax due to the city; that it had failed to keep an accurate record of its sales in Missouri, and had failed to file the reports required by the ordinance. The plaintiff also alleged that a trial of the issues in the case would necessitate the examination of a long and intricate account between the parties, and the examination of thousands of transactions between the defendant and its customers, and others, and prayed that the defendant should be required to account for the number of gallons of gasoline sold within the state of Missouri under the ordinance, and for judgment for the amount of taxes that should be found due.

The second cause of action sought a similar recovery of the taxes for a subsequent period under the terms of this ordinance, after it had been amended by increasing the tax imposed under section 2 from one-half cent to one cent per gallon.

The trial court was of the opinion that the ordinances were void under the terms of sections 6840 and 7287 of the Revised Statutes of Missouri 1929 (Mo. St. Ann. §§ 6840, 7287). It is conceded that the right of the city of Sedalia to impose a tax of this kind must be found in the powers conferred by the portions of section 6840 which read as follows:

"The city council shall have power and authority to levy and collect a license tax on * * * wholesale merchants, merchants of all kinds" and that this right is limited by the terms of section 7287, which is as follows:

"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."

It was the view of the trial court that the avocation named in the ordinance of those "engaged in the business of selling gasoline and transporting same through the streets of Sedalia, Missouri," was not one of those specially named as taxable under section 6840. In Campbell Baking Co. v. City of Harrisonville, Mo., 50 F.(2d) 670, 674, it was determined by this court, after a review of the decisions of the Supreme Court of Missouri, that a grant of power to impose a city license tax upon "merchants of all kinds" authorized an ordinance of a city imposing a tax upon persons, firms, or corporations, "engaged in selling or delivering any goods or merchandise of any kind" at wholesale or retail to any one in the city, notwithstanding the limitations expressed in section 7287 of the Revised Statutes Mo. St. Ann. § 7287. This court said: "Appellant urges that, if this ordinance may be regarded as taxing a calling which is included within any of the avocations enumerated in the statute, it does this by subdividing such avocation, and that such is not permissible because the classifications for license tax purposes are made by the statute itself. It cites several Missouri cases. We have examined all of these citations as well as others. There are expressions in several opinions which, taken alone, support this contention (see City of St. Louis v. Baskowitz, 273 Mo. 543, 563, 564, 201 S. W. 870; State v. Miksicek, 225 Mo. 561, 125 S. W. 507, 511, 135 Am. St. Rep. 597; Kansas City v. Grush, 151 Mo. 128, 135, 52 S. W. 286), but in all of these cases the subclassification was in itself regarded as arbitrary. Unless these decisions be held to mean that no subclassification is allowable where such is arbitrary, it is difficult to reconcile them with Eldorado Springs v. Highfill, 268 Mo. 501, 188 S. W. 68, which is later than the Grush and Miksicek Cases, only slightly older than the Baskowitz Case and decided by the same court. Attempting to reconcile the Highfill Case with the other cases, we think the rule to be deduced is that there may not be subclassifications of an avocation enumerated in the statute unless such subclassification be reasonable and natural; that is, not arbitrary."

Nothing is found in the cases of City of Ozark v. Hammond, 329 Mo. 1118, 49 S. W. (2d) 129, or City of Lebanon v. Joslyn (Mo. Sup.) 58 S.W.(2d) 289, decided since the opinion was written in the Campbell Baking Company Case, which requires a different conclusion as to the right of a city to subdivide a class named as "merchants of all kinds." Applying the rule adopted by this court in the case mentioned, the classification in this case of those "engaged in the business of selling gasoline and transporting same through the streets" of the city must be upheld, unless the selection of the class is arbitrary or unreasonable.

The appellee claims that the ordinance is unreasonable because it discriminates between those who may sell gasoline and haul it in containers such as are described in the ordinance and others who haul it in containers of less size, and discriminates between those who may both sell and transport gasoline as described in the ordinance within the city and others who may sell it within the city, but transport it into, out of, or through the city, and between those whose whole business is the sale and transportation of gasoline, and others who sell other articles than gasoline.

As the case is presented on this appeal, we are advised only by the bill and the motion to dismiss. The bill alleges that the defendant was engaged in the city of Sedalia in the business of selling gasoline and transporting it in barrels, tank wagons, and other containers having a capacity of more than five gallons, but it does not appear that there were any other vendors of gasoline who transported it in any manner. The presumption of the validity of an ordinance, as in case of other laws, may not be overthrown by the suggestion of discriminations that may never be proved. Pullman Co. v. Knott, 235 U. S. 23, 35 S. Ct. 2, 59 L. Ed. 105; Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U. S. 335, 52 S. Ct. 144, 76 L. Ed. 323; Louisville & Nashville R. Co. v. Finn, 235 U. S. 601, 35 S. Ct....