City of St. Charles ex rel. Palmer v. Schulte

• Citation: 264 S.W. 654,305 Mo. 124
• Decision Date: 31 July 1924
• Docket Number: 24092
• Parties: CITY OF ST. CHARLES ex rel. LYMAN L. PALMER, City Collector, v. WILLIAM SCHULTE, Appellant
• Court: Missouri Supreme Court

264 S.W. 654

305 Mo. 124

CITY OF ST. CHARLES ex rel. LYMAN L. PALMER, City Collector, v. WILLIAM SCHULTE, Appellant

No. 24092

Supreme Court of Missouri

July 31, 1924

Appeal from St. Charles Circuit Court; Hon. Edgar B Woolfolk, Judge.

Affirmed.

Emil P. Rosenberger for appellant.

The license fee in question, $ 180 per annum, to be paid by a retail dealer in near-beers in a city of the third class, is unquestionably a tax, and the ordinance is unconstitutional void and unenforcible. City of Fulton v. Craighead, 164 Mo.App. 90; City of Independence v. Cleveland, 167 Mo. 384; State ex rel. Rolston v. Railroad, 246 Mo. 512; Weisberger v. Boatmen's Bank, 280 Mo 199; City of Brookfield v. Tooey, 141 Mo. 619; Kansas City v. Grush, 151 Mo. 128.

William F. Achelpohl for respondent.

(1) The license tax imposed under the ordinance is an occupation license tax, which the city had authority to impose on the business of a soft-drink vendor. Sec. 8322, R. S. 1919. See also Section 5961 for what the Legislature understood and desired to be understood by the term "soft drinks." City of El Dorado Springs v. Highfill, 268 Mo. 501. (2) Being an occupation license tax levied by an ordinance passed by virtue of an express power conferred upon the city, said ordinance is not invalid under the provisions of Section 3, Article 10, of the Constitution, because this section of the Constitution has no applicaton to occupation license taxes. Glasgow v. Rowse, 43 Mo. 489; St. Louis v. Green, 70 Mo. 562; Richmond v. Creel, 253 Mo. 256; St. Louis v. United Rys. Co., 263 Mo. 387; St. Louis v. Baskowitz, 273 Mo. 554. (3) The municipality, in imposing the occupation license sued for, acted in a legislative capacity, under express power conferred upon it, and was required to fix the amount, the manner and mode of such tax, and determine the subjects for such taxation within the limits of such authorized subjects, as it deemed expedient and appropriate, and nothing but the most indubitable unfairness and unreasonable oppression as to leave no room for difference of opinion concerning the matter, will authorize the courts to interfere; all reasonable doubts being resolved in favor of the municipality. Wagner v. St. Louis, 284 Mo. 410; St. Louis v. United Rys. Co., 263 Mo. 387; State ex rel. v. Clifford, 228 Mo. 194.

OPINION

Ragland, J.

This is an appeal by defendant from a judgment recovered against him by the city of St. Charles for an occupation tax imposed by one of its ordinances on vendors of soft drinks. The ordinance, so far as material to the questions involved in this controversy, was as follows:

"Section 69. Soft Drink Vendors. Any person, firm or corporation engaged in the business of selling or vending soft drinks or non-intoxicating liquors such as bottled sodas of any kind, or soda pop, coca cola, ginger ale, or other drinks, or any near-beer or so called beverage made or manufactured wholly or in part from malt or malt substitutes, whether sold in or from bottles or kegs or other containers, from or at any stand, store, stall or place of business in said city, and consumed, or to be consumed, at, in or near such stand, store, stall or place of business where sold, shall pay a license tax therefor, as follows:

"A. If selling or dealing in any such soft drinks and beverages other than near-beer or beverages made or manufactured wholly or in part from malt or malt substitutes, the sum of $ 25 per year.

"B. If selling or dealing in any non-intoxicating near-beers or so-called beverages made or manufactured wholly or in part from malt or malt substitutes, the sum of $ 180 per year.

"C. If selling or dealing in sodas and other soft drinks, as well as such near-beers or non-intoxicating malt beverages as aforesaid, the sum of $ 200 per year.

"Provided, that nothing in this ordinance shall authorize any licensee or other person to sell or deal in intoxicating liquors of any kind."

Defendant was engaged in selling, in the city of St. Charles, soft drinks of all kinds, including "non-intoxicating near-beers or so-called beverages made or manufactured wholly or in part from malt or malt substitutes." He paid to the city of St. Charles the license tax of $ 25 as provided in subdivision "A" of the ordinance, but refused to pay the additional sum required for selling near-beers. Such refusal is the basis of this litigation.

The validity of the ordinance is challenged by appellant on two principal grounds: first, the city of St. Charles was without authority to impose a license tax upon a vendor of near-beers; and, second, the ordinance violates the constitutional requirement (Section 3, Article X) that taxes "shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax."

St. Charles is a city of the third class. As such it was expressly authorized by Section 8322, Revised Statutes 1919, "to levy and collect a license tax on . . . soft drinks and ice-cream stands and vendors." That "non-intoxicating near-beers or . . . beverages . . . manufactured wholly or in part from malt or malt substitutes" are included within the term soft drinks is scarcely open to question. They are so included by popular acceptation, of which we take judicial notice, and they have been expressly classified as soft drinks by the Legislature itself in a subsequent act. [Sec. 5961, R. S. 1919.]

Respondent asserts that Section 3 of Article X of the Constitution which provides that taxes shall be uniform upon the same class of subjects, does not apply to occupation license taxes. To this we are unable to give our assent. This provision first appeared in the organic law of this State upon the adoption of the present Constitution. The question whether it applied to an occupation tax as distinguished from a property tax came before this court for determination for the first time in St. Louis v. Spiegel, 75 Mo. 145. It was there held to apply to such a tax and to prevent discrimination between objects belonging to the same class of subjects within the territorial limits of the authority levying the tax. That holding has been followed in many subsequent opinions. [St. Louis v. Bowler, 94 Mo. 630; St. Louis v. Coal Co., 113 Mo. 83; Kansas City v. Grush, 151 Mo. 128; State v....