City of Sikeston v. Marsh, 5842.

• Decision Date: 07 December 1937
• Docket Number: No. 5842.,5842.
• Citation: 110 S.W.2d 1135
• Parties: CITY OF SIKESTON v. MARSH.
• Court: Missouri Court of Appeals

110 S.W.2d 1135

CITY OF SIKESTON v. MARSH.

No. 5842.

Springfield Court of Appeals. Missouri.

December 7, 1937.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

"Not to be published in State Reports."

Ray C. Marsh was convicted of violating an ordinance of the City of Sikeston, and he appeals from the judgment of conviction of the circuit court of Scott county, to which he appealed from the police court of such city.

Reversed, and accused discharged.

Bailey & Bailey, of Sikeston, for appellant.

Robert A. Dempster, of Sikeston, for respondent.

ALLEN, Presiding Judge.

This case originated in the police court of Sikeston, Mo. The defendant is charged with violating ordinances numbered 1323 and 1340 of said City of Sikeston. Ordinance 1323 endeavors to levy a license tax in the sum of $50 per year upon each motortruck, wagon, or automobile that operates upon the streets of said city, which is engaged in or used in the transporting or delivering into the city any dairy products or other items, including bakery products. Ordinance 1340 is identical with Ordinance 1323, except that it endeavors to levy a license tax of $50 per year on each motortruck, wagon, or automobile which operates upon the streets of the city and is engaged in or used in the transporting or delivery into or about the city any dairy products and other products, including bakery products. The only distinction between the two ordinances is that Ordinance 1323 levies a license tax for transporting products into the City of Sikeston, while Ordinance 1340 endeavors to levy a license tax on trucks delivering into or about the City of Sikeston.

Defendant was convicted in the police court, from which he appealed to the circuit court of Scott County, where trial was had before the court, and the defendant was found guilty of violating Ordinance 1340 and fined $25. Defendant filed his motion for a new trial, which was overruled, and the cause comes to this court on appeal by defendant.

The cause was tried upon an agreed statement of facts, as follows:

"It is stipulated and agreed that the above entitled cause may be submitted to this Court upon the following facts, which are the facts in this case.

"1. The City of Sikeston, Missouri is a city of the third class, organized and existing under and by virtue of the laws of the State of Missouri, and Exhibits A and B, hereto annexed, and by reference made a part hereof, are true and correct copies of ordinances of said City numbered 1323 and 1340, respectively.

"2. The Grennan Bakeries, Inc., of St. Louis, Missouri, engages in the manufacturing of cookies, pies and pastry products at St. Louis, Missouri; said company maintains a general distribution system for the distribution of its products at Sikeston, Missouri, and other towns; said products are shipped to Sikeston, Missouri, four times weekly and delivered and sold at wholesale to retail merchants at Sikeston and other towns by said company through its local representative, Ray C. Marsh, defendant herein; and that Grennan Bakeries, Inc., had paid to the State of Missouri and the City of St. Louis, Missouri, manufacturers' and wholesalers' tax as required by law or ordinance.

"3. That the defendant Ray C. Marsh, a resident of Sikeston, Missouri, was so engaged at the date he was complained against, the ____ day of July, 1936, and is charged in the complaint with having violated ordinances numbered 1323 and 1340.

"4. That the truck driven by defendant is owned by the Grennan Bakeries, Inc.

"5. That the license tax of the City of Sikeston levied upon local bakeries engaged in the business of manufacturing bread, cakes, pastry, etc., and selling the same at wholesale or retail is $15.00 per year, and that the Grennan Bakeries, Inc., has not paid this license tax.

"6. It is further agreed that either plaintiff or defendant may add to this statement of facts any city ordinance not mentioned above."

It will be observed from the agreed statement of facts that the defendant was employed by Grennan Bakeries, Inc., of St. Louis, to distribute bakery products at wholesale to the retail merchants of Sikeston, said products being first shipped from St. Louis to Sikeston. The defendant drove a truck in making said deliveries, which truck was owned by the Grennan Bakeries, Inc., who are manufacturers of bakery products and are located at St. Louis. That the Grennan Bakeries, Inc., has paid to the State of Missouri and the City of St. Louis such manufacturers' and wholesalers' taxes as the law requires, but has not paid the tax of $15 per year levied by the city of Sikeston upon local bakeries engaged in the business.

In the trial court the defendant was convicted of violating Ordinance 1340, but was not convicted of violating Ordinance 1323. Sikeston is a city of the third class, and the ordinances attached to and made a part of the agreed statement of facts are the ordinances involved. However, only Ordinance 1340 is involved here, as it is the ordinance upon which the defendant was convicted, and therefore the only ordinance involved in this appeal. Defendant was a resident of the City of Sikeston and was engaged in driving a truck belonging to the Grennan Bakeries, Inc., in delivering its bakery products to retail merchants at Sikeston and other towns, and was so engaged at the time the complaint was filed against him in the police court, at Sikeston.

We think the only proposition before this court is whether or not Ordinance 1340 of the City of Sikeston is a valid ordinance in so far as it applies to the Grennan Bakeries, Inc.

Section 1340 of the ordinances of the City of Sikeston is as follows:

"An Ordinance Providing for the Licensing of Certain Motor Trucks, Wagons or Automobiles That Operate Upon the Streets of the City of Sikeston, and are Used in the Transporting of Merchandise Into (or About) the City, and Providing a Penalty for Its Violation.

"Be it ordained by the City Council of the City of Sikeston, State of Missouri, as follows:

"Section 1. That there is hereby levied a license tax in the sum of $50.00 per year upon each motor truck, wagon or automobile that operates upon the streets of the City of Sikeston, that is engaged in, or used in, the transporting or delivering into (or about) the City, any dairy products, soda water, coal, beer, ice, bread, pies, cakes and other such bakery products, gasoline and/or oils, that is for sale at wholesale or retail.

"Section 2. Any person, firm or corporation, failing to procure a license from the City Clerk or Collector as provided by this ordinance shall be deemed guilty of a misdemeanor, and upon conviction be subject to a fine of not less than $50.00 and not more than $100.00.

"Section 3. Nothing in this ordinance shall be construed so as to repeal City ordinances numbered 1323 of the City of Sikeston, and this ordinance shall be in full force and effect from and after its passage and approval. * * *"

The Ordinance in question, 1340, is not in any sense a police regulation. It is purely a revenue measure imposing, or attempting to impose, a tax upon motortrucks, wagons, or automobiles which operate upon the streets of Sikeston and are engaged and used in transporting or delivering into (or about) the city any dairy products, soda water, coal, beer, ice, bread, pies, cakes, and other bakery products that are for sale at wholesale or retail.

There are two points at issue in this case: First, is the ordinance in question a tax on the vehicle itself or does the ordinance seek to levy an occupation tax?

The defendant, appellant, contends that, if this is a tax on vehicles, it is void because it is in violation of section 7780, R.S.Mo. 1929, as amended by the Laws of 1935, p. 294 (Mo.St.Ann. § 7780, p. 5228), and sections 7761 and 7762, R.S.Mo. 1929, as amended by the Laws of 1933-34, Extra Session, p. 98 (Mo.St.Ann. §§ 7761, 7762, and notes, pp. 5183, 5184), because of the fact that the tax levied is in excess of the amount that the above statutes allow cities to levy on motor vehicles, and because the truck in question is not owned by a resident of the City of Sikeston....