City of Springfield v. Jacobs

• Decision Date: 14 April 1903
• Citation: 73 S.W. 1097,101 Mo.App. 339
• Parties: CITY OF SPRINGFIELD, Appellant, v. B. F. JACOBS, Respondent
• Court: Missouri Court of Appeals

73 S.W. 1097

101 Mo.App. 339

CITY OF SPRINGFIELD, Appellant, v. B. F. JACOBS, Respondent

Court of Appeals of Missouri, St. Louis

April 14, 1903

Appeal from Greene Criminal Court.--Hon. J. J. Gideon, Judge.

AFFIRMED.

Judgment affirmed.

W. R Self and T. J. Delaney for appellant.

(1) The council can not define the meaning of the word "traveling store" as used in the general law. The Legislature does not define the word and it is for the courts to say what falls within the legislative intent in the use of such words. Therefore, the "definition" must be rejected. Water Co. v. City of Neosho, 136 Mo. 511; City of St. Louis v. Railroad, 89 Mo. 44. (2) The question of the reasonableness of the tax is for the Legislature and council and not for the courts. The power to levy a license tax on traveling stores is expressly granted and prima facie the municipal corporation is the sole judge of the necessity for and reasonableness of the ordinance; and when the character of the occupation is considered, this ordinance is not unreasonable, and courts should not so hold even if they have the power to control the city in the exercise of an express power. A large and liberal discretion should be allowed municipalities. City of St. Louis v Knox, 6 Mo.App. 247; City of St. Louis v. Green, 7 Mo.App. 468; Hannibal v. Telephone Co., 31 Mo.App. 23; Skinker v. Heman, 148 Mo. 349.

Wright Bros. for respondent.

(1) The ordinance is unreasonable and void. It provides for $ 50 per day for a license. That fact is disclosed on its face. It is equal to $ 1,500 per month, or $ 18,250 per year. Sipe v. Murphy (Ohio), 31 N.E. 884; City of Carrollton v. Bazette, 159 Ill. 284, 42 N.E. 837. (2) Courts are authorized to intervene for unreasonableness. White v. Railroad, 44 Mo.App. 540; Corrigan v. Gage, 68 Mo. 541; State ex rel. v. Tracey, 94 Mo. 217. (3) The ordinance is void, if for revenue, because its effect is prohibitory, and the city is not authorized to prohibit the business of respondent by taxation. In Cooley on Taxation (Ed. 1879), page 408, the author says: "But the grant of authority to impose fees for the purposes of revenue, would not warrant their being made so heavy as to be prohibitory, thereby defeating the purpose." The city has no right to destroy by taxation. (4) The ordinance is void, if for purpose of regulation, because the amount is unreasonable as a fee for a license. Cooley on same page says: "The fee for license . . . should not exceed the necessary or probable expense of issuing the license, and of inspecting and regulating the business which it covers." The fee to the clerk is fifty cents and to the collector is twenty-five cents. R. S. 1899, sec. 8551; State ex rel. v. Tracey, 94 Mo. 217.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

--This is an action originating before the city recorder of the city of Springfield, upon an information charging defendant with violation of an ordinance of the city of Springfield. From a conviction before the police magistrate, the defendant appealed to the criminal court of Green county, where a motion to quash was sustained, and the city of Springfield has appealed to this court.

The terms of the sections of article 1, chapter 15, of the Revised Ordinances of Springfield, or so much as is here material, epitomized are: section 482 declares it shall be unlawful to pursue various avocations, among them, the keeping or conducting a traveling or auction store without first obtaining a license therefore from the proper officers of the city, and making payment of the license fixed by ordinance. Section 483 provides that a license tax is thereby levied and fixed upon the various objects, subjects, persons, trades and occupations, within the city of Springfield, Missouri, thereinafter mentioned, and that the same shall be licensed, taxed and regulated as thereinafter provided.

Section 528 is as follows:

"That hereafter it shall be unlawful for any person or persons, company, association or corporation to carry on or to engage in the business of conducting, in the city of Springfield, a transient or traveling clothing, dry goods, jewelry or other kind of store, without first having obtained therefor a license from said city, and the charge for such license shall be as follows: for each and every day such store or business is conducted, the sum of fifty dollars. By the word 'transient or traveling clothing, dry goods, jewelry or other kind of stores' as used in this ordinance, is meant such stores as are commonly denominated 'fire sale' and 'bankrupt sale' stores, and are of a transient and temporary character, and also such stores of a transient or temporary character conducted on the lottery plan."

Among the powers specifically delegated to a city of the third class is, authority to levy and collect a license tax on traveling and auction stores; it is worthy of remark however, that the measure of control over such callings is expressly restricted to the imposition and collection of a license tax and is not extended to the broader prerogatives of regulation and suppression conferred and possessed, respecting the numerous callings enumerated in the succeeding paragraph of the statute, by which the authority of regulation or suppression may be exercised additional to licensing and taxing. The bounds within which a municipal corporation can lawfully enforce such delegated powers, as well as the limits within which...