City of St. Charles v. Union Electric Co. of Missouri

• Decision Date: 06 February 1945
• Docket Number: No. 26678.,26678.
• Citation: 185 S.W.2d 297
• Parties: CITY OF ST. CHARLES v. UNION ELECTRIC CO. OF MISSOURI.
• Court: Missouri Court of Appeals

185 S.W.2d 297

CITY OF ST. CHARLES v. UNION ELECTRIC CO. OF MISSOURI.

No. 26678.

St. Louis Court of Appeals. Missouri.

February 6, 1945.

Rehearing Denied March 6, 1945.

Appeal from Circuit Court, St. Charles County; Theodore Bruere, Judge.

"Not to be reported in State Reports."

Action by City of St. Charles against Union Electric Company of Missouri to recover from defendant a fund claimed to be due city as a license tax. From a judgment of dismissal, city appeals.

Reversed and remanded.

Robert V. Niedner, of St. Charles, for appellant.

Robert J. Keefe, Roberts P. Elam, and Igoe, Carroll, Keefe & Coburn, all of St. Louis (John A. Woodbridge, of St. Louis, of counsel), for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, City of St. Charles, to recover from defendant, Union Electric Company of Missouri, the sum of $5,978.99 which is claimed to be due the city from defendant as a license tax payable on October 20, 1943.

Defendant demurred upon the ground that the petition did not state facts sufficient to constitute a cause of action, as well as upon certain alleged constitutional grounds, including the ground that the ordinance imposing the tax was "in violation of Section 3, Article X, of the Constitution of Missouri [Mo.R.S.A.], and in violation of the rights of defendant thereunder".

The court sustained the demurrer by a general order to that effect, and upon plaintiff's refusal to plead further, caused judgment to be entered dismissing the petition. Plaintiff thereupon applied for and was granted an appeal to this court.

The ordinance upon which plaintiff relies for the imposition of the tax is its Ordinance No. 1840, which provides as follows:

"Section One. That Ordinance No. 1787 of the Ordinances of the City of St. Charles, Missouri, be and the same is hereby repealed, and there is enacted in lieu thereof a new ordinance pertaining to the same subject matter which shall read as follows, to-wit:

"A. The word `person' when used in this ordinance shall include any * * * corporation * * *.

"B. Every person now or hereafter engaged in the business of supplying electricity, gas, telephone service, or water for compensation for any purpose in the City of St. Charles, and every manufacturing corporation now or hereafter engaged in the manufacture of gas for compensation for any purpose in the City of St. Charles, shall pay to the City of St. Charles, as a license tax, a sum equal to five per cent (5%) of the gross receipts from such business.

"C. It is hereby made the duty of every person engaged in any of the businesses described in the foregoing section hereof to file with the Clerk of the City of St. Charles on the fifteenth day of April, 1943, a sworn statement of the gross receipts of such person, from such business from the first day of October, 1942, to the first day of April, 1943, and to file thereafter on the fifteenth day of April, and October, of each year a sworn statement of the gross receipts from such business from the six calendar months preceding the filing of such statement. * * *.

"D. Every person now or hereafter engaged in any of the businesses described in Section Two hereof shall pay to the City Collector of the City of St. Charles on the twentieth day of April, 1943, and on the twentieth day of April, and October, of each year thereafter an amount equal to five per cent of said person's gross receipts from said business for the preceding six calendar months.

"E. The tax herein required to be paid shall be in lieu of any other occupation tax required of any person engaged in any of the businesses described in Section Two hereof * * *.

"F. Any person engaged in any of the businesses described in Section Two who shall violate any of the provisions of the foregoing ordinance, shall be deemed guilty of a misdemeanor * * *.

"G. If any section or sections, or part thereof, of this ordinance shall be held invalid for any reason, the invalidity of such section or sections, or part thereof, shall not impair the validity of the remaining section, sections or part of this ordinance * * *.

"Section Two. All ordinances or parts of ordinances in conflict with this ordinance in so far as they are in conflict with this ordinance are hereby repealed.

"Section Three. This ordinance shall take effect and be in force from and after April 1, 1943."

In arguing the matter of whether the petition states facts sufficient to constitute a cause of action, the first point in controversy between the parties is whether the ordinance, on its face, actually required the payment of a tax on October 20, 1943.

The question is one of the effect to be given to Section One (D) of the ordinance, which provides that every person subject to the tax should make payment thereof "on the twentieth day of April, 1943, and on the twentieth day of April, and October, of each year thereafter".

Defendant argues that in so far as concerns the time for payment of the tax, the language of the ordinance is clear and unambiguous; and that it plainly provides that the first payment should be made on April 20, 1943, with like payments made on April 20th and October 20th of each year thereafter, meaning April 20th and October 20th of 1944, and of each subsequent calendar year. It contends that the language of the ordinance is so definite and unmistakable in this respect as to afford no basis for judicial construction, but insists that even if the ordinance should be held to be ambiguous as to whether a payment was due on the disputed date of October 20, 1943, then in view of its character as a taxing ordinance, it should in any event be construed against the taxing authority.

Defendant of course makes no pretense at suggesting what the city council's purpose might have been in allegedly dispensing with the payment of a tax on October 20, 1943, after having put the law into effect and required a first payment on the preceding April 20th, but instead places its reliance in the rule that the legislative purpose in a given instance is to be ascertained from the act itself, and that if the language used is clear and definite, the court will be powerless to add a meaning not expressed by its terms, as by undertaking to supply some provision which the court may feel certain the lawmaking body had meant to include, but by inadvertence had omitted.

Plaintiff argues, on the other hand, that the ordinance, in its entirety, shows a manifest purpose and design to subject all persons engaged in the designated businesses to a continued liability for payment of the tax from and after the effective date of the ordinance without any thought of skipping some arbitrary period of time thereafter; and that if any doubt is cast by Section One (D), it is merely the result of an ambiguity in its language, which should be resolved in such a way as to effectuate the evident intention of the council and give the whole ordinance its plain and rational meaning. Furthermore, plaintiff insists that the rule of liberal construction is not to be rejected in the particular instance because of the character of the ordinance as a taxing ordinance, since the question in issue under Section One (D) is not whether the city has the power to impose the tax, but whether, assuming the power to tax, its intent to tax has been clearly expressed as regards the necessity of making a payment on October 20, 1943.

While defendant makes an earnest presentation of its case, we agree with plaintiff that the most that can be said in defendant's favor is that Section One (D) is ambiguous with respect to the question of whether a payment was due on October 20, 1943. This in connection with the use of the phrase "each year thereafter," which leaves room for controversy as to whether it relates to the year 1943 alone, or to the specific date of April 20, 1943. If the former, then defendant would no doubt be correct in its insistence that after the initial payment on April 20, 1943, there would have been no further payments due until the 20th days of April and October of each calendar year subsequent to 1943; while if the latter, then subsequent payments would have been due on each October and April 20th after April 20, 1943, and plaintiff's petition would be sufficient as against the contention that the ordinance discloses on its face that no tax was payable on the disputed date of October 20, 1943.

Quite aside from other compelling considerations, it would be enough to say that if the phrase "each year thereafter," as it appears in Section One (D), is merely read in its usual and ordinary sense, it should be taken as referring to "the time or period following an event or date" previously fixed in the section (Elsberry Drainage District v. Winkelmeyer, 278 Mo. 268, 275, 212 S.W. 893, 895), which, necessarily, would be the specific date of April 20, 1943. In other words, the "event" which marks the beginning of the first "year thereafter" is the initial payment made due and payable on April 20, 1943; and the next succeeding payment would have therefore been due on October 20, 1943, as the next designated date within "each year thereafter". Thus construed, the phrase "each year thereafter" would not only be given its natural meaning, but would involve no absurdity, and no contradiction between the different parts of the ordinance, as we shall presently point out. We are not unaware of the statutory declaration that in the construction of statutes, the word "year" shall be taken to mean a calendar year, unless otherwise expressed (Sec. 655, R.S.Mo.1939, Mo.R.S.A. § 655); but even this rule is made subject to the qualification that such a construction is not to be given where it would be plainly repugnant to the intent of the legislature, or to the context of the statute in which the word is used.

Moreover, as indicated above, it is highly significant that when the phrase "each year thereafter" is construed as referring to the time or period following...