City of St. Clair v. George

• Citation: 33 S.W.2d 1019,225 Mo.App. 30
• Parties: CITY OF ST. CLAIR, MISSOURI, A MUNICIPAL CORPORATION, RESPONDENT, v. CLARENCE GEORGE, APPELLANT
• Decision Date: 06 January 1931
• Court: Missouri Court of Appeals

33 S.W.2d 1019

225 Mo.App. 30

CITY OF ST. CLAIR, MISSOURI, A MUNICIPAL CORPORATION, RESPONDENT, v. CLARENCE GEORGE, APPELLANT

Court of Appeals of Missouri, St. Louis

January 6, 1931

Appeal from the Circuit Court of Franklin County.--Hon. R. A Breuer, Judge.

REVERSED AND DEFENDANT DISCHARGED.

Judgment reversed and defendant discharged.

Jones Hocker, Sullivan & Angert and Jesse M. Owen for appellant.

The city of St. Clair is without authority to require and enforce a license tax on a truck driven by the defendant and used solely to haul supplies from his employer's warehouse in the city of St. Louis, Missouri, to the employer's local store in the city of St. Clair, Missouri, and the defendant was not guilty of a violation of the ordinance under which the prosecution herein was brought. Laws Missouri 1921 (1st extra session), page 100, sec. 24c; The City of St Charles v. Fritz Nolle, 51 Mo. 122; Wells v. City of Weston, 22 Mo. 384; Town of Cameron v. Stephenson, 69 Mo. 372; Corn v. City of Cameron, 19 Mo.App. 573; Williams v. City of Albany, 216 Ala. 408, 113 So. 257.

A. A. Tibbe for respondent.

SUTTON, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

This is an action commenced in the police court of the city of St. Clair, to recover of defendant a fine, for the violation of an ordinance of said city. The complaint charges that defendant, on August 14, 1929, unlawfully operated upon the streets of said city one motor truck, for the purpose of carrying on a hauling, drayage and transfer business, for and on behalf of Schwartzmann Service, Inc., without first having obtained a license therefor. From the police court the cause went on appeal to the circuit court, where it was tried on the following agreed statement of facts:

"On August 14, 1929, plaintiff was a city of the fourth class, located in Franklin county, Missouri. Defendant was on said date employed by Schwartzmann Service, Inc., as a driver of a large truck being used by said Schwartzmann Service, Inc., in transporting merchandise of the Kroger Grocery Company from St. Louis, Missouri, to a Kroger store in St. Clair, Missouri, for hire, and on said date drove said truck into the city of St. Clair to the Kroger store in said city. On said August 14, 1929, neither Schwartzmann Service, Inc., nor defendant held a drayman's (or drayage) license from the plaintiff. At no time did Schwartzmann Service, Inc., nor defendant do any local freight hauling within the city of St. Clair, but only hauled freight under its contract with Kroger Grocery Company to and from the Kroger store in St. Clair, Missouri, making trips probably two or three times a week. Neither defendant nor his employer, Schwartzmann Service, Inc., have ever been residents of St. Clair, but at all times have resided in St. Louis, Missouri."

The act of the legislature relative to motor vehicles (Sec. 24, p. 100, Extra Session Laws, 1921) provides "that municipalities may impose occupation taxes on the business of transporting passengers, freight and merchandise for hire carried on within their limits, and may measure such taxes by the number of motor vehicles engaged in such transportation."

Upon the trial in the circuit court, without a jury, there was a judgment in favor of plaintiff and against defendant, for the recovery of a fine of $ 25, and from this judgment defendant appeals.

Defendant contends here that the city of St. Clair is without authority to require and enforce a license tax on a truck driven by defendant for his employer, Schwartzmann Service, Inc., and used solely in transporting merchandise for the Kroger Grocery Company from St. Louis to a Kroger store in St. Clair, and from said store to the city of St. Louis, both defendant and his employer, Schwartzmann Service, Inc., being non-residents of the city of St. Clair, and residents of the city of St. Louis.

In The City of St. Charles v. Nolle, 51 Mo. 122, where the defendant, who was a non-resident of the city of St. Charles, living about five miles from said city, in the neighborhood of Judges Landing, on the Mississippi River, which was located about seven miles from said city, was hauling lumber from said Judges Landing into said city, for a lumber firm, delivering the lumber to their lumber yard in said city, for hire, without having taken out a license as a drayman or wagoner, and an ordinance of the city provided that "every owner or driver of any dray, cart or wagon used or kept to carry or convey goods, wares or merchandise or any species of property or thing, for hire, from one part of the city to another part, or from places within the city to places without the city, or from places without the city to places within the city," should take out a license therefor, and the charter of the city provided that the mayor and councilmen should have power by ordinance, "to provide for licensing, taxing and regulating hacks, drays, wagons and other vehicles used within the city for pay," the court, speaking through Judge ADAMS, said:

"A city can only pass such ordinances as are warranted by its charter. There seems to be no authority, express or implied in the charter of the city of St. Charles to authorize the imposition of a tax license on wagons engaged in hauling outside of the city.

"It was not contemplated by the Legislature that the free ingress, egress and regress of outside citizens should be impeded by taxation, to be imposed by the city. It cannot be found in that part of the charter allowing tax license to be imposed on wagons, etc., used for pay in the city. The language used excludes such interpretation--'expressio unius exclusio alterius.' . . .

"Besides, if the Legislature had given the power in so many words, in my judgment, such legislation would have been void as going beyond the limitation of legislative power. . . .

"So much of the ordinance under consideration, as attempted to...