City of St. Louis v. Boatmen's Ins. & Trust Co.

• Decision Date: 31 October 1870
• Parties: THE CITY OF ST. LOUIS, Respondent, v. BOATMEN'S INSURANCE AND TRUST COMPANY, Appellant.
• Court: Missouri Supreme Court

47 Mo. 150

THE CITY OF ST. LOUIS, Respondent,

v.BOATMEN'S INSURANCE AND TRUST COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1870.

Appeal from St. Louis Circuit Court.

Ewing & Holliday, for appellant.

I. The power to license merely does not confer the right to impose a tax for the purpose of revenue. (Essex v. Barber, 2

Halst. 64; Kip v. City of Patterson, 2 Dutch. 301; City of Cincinnati v. Bryson, 15 Ohio, 625.)

II. It is submitted that the clause of the city charter in question impairs the obligation of the contract created by the charter of defendant, and is an infringement of its vested rights. The power to alter, suspend, or repeal this charter is expressly taken away by the ninth section thereof. (R. C. 1855, art. I, § 7, p. 371; Dartmouth College v. Woodward, 4 Wheat. 518; Binghamton Bridge Co. v. State, 18 Conn. 53; Cone v. New Bedford Bridge, Gray, 339; 7 Ind. 59; Pacific R.R. v. Renshaw, 18 Mo. 214; 22 Ind. 291.)

McGinnis, and Woerner & Kehr, for respondent.

I. The power to license, when conferred by the Legislature of a State on a municipal corporation, is generally, if not universally, looked upon as a power to impose a tax on the franchise or an excise. (The City of Cincinnati v. Bryson, 15 Ohio, 625; Lucas et al. v. Lottery Commissioners, 11 Gill. & Johns. 605; Boston v. Schaefer, 9 Pick. 415; Perdue v. Ellis, 18 Ga. 586; City of Louisville v. Kean et al., 18 B. Monr. 9; Bennett v. Birmingham, 31 Penn. St. 15; Merriam v. City of New Orleans, 14 La. Ann. 318; Sacramento v. Stage Co., 12 Cal. 134; Sacramento v. Crocker, 16 Cal. 119; Chilvers v. The People, 11 Mich. 43; Burlington v. Keller, 18 Iowa, 59 et seq.) In Missouri this view is accepted by the courts without hesitation. (Simmons v. The State, 12 Mo. 268; The State v. Hereford, 13 Mo. 3; Simpson v. Savage, 1 Mo. 359; City of Independence v. Noland, 21 Mo. 395; State v. Whittaker, 33 Mo. 475; Harrison v. The State, 9 Mo. 527; Glasgow v. Rowse, 43 Mo. 490.) But there is express authority in the charter to tax the franchise of corporations or individuals, independent of the authority to license. Under the charter provision the city has power to levy not only taxes upon property made taxable by law for State purposes, but also “such other taxes as shall be provided for by law of this State”

II. Appellant's charter contains no express or implied exemption from taxation by the city, and is therefore liable under the

ordinance in question. (Portland Bank v. Apthorp, 12 Mass. 264-5; Providence v. Billings & Pittman, 4 Pet. 514; Eastern Bank v. The Commonwealth, 10 Barr, Pa., 442; Gordon v. Appeal Tax Court, 3 How. 133; Gordon's Ex'r v. Mayor, etc., of Baltimore, 5 Gill. 231; Attorney-General v. Bank of Charlotte, 4 Jones, 287; Union Bank of Tennessee v. The State, 9 Yerg. 490; State of New Jersey v. Bury, 2 Harris, 83; Johnson v. Commonwealth, 7 Dana, 342; Bank of Illinois v. The People, 4 Scam. 304.)

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding instituted in the Police Court of the city of St. Louis, against the defendant, for violation of city ordinance in refusing to take out a license as required; and judgment being given for the plaintiff, the defendant appealed to the Criminal Court, where the judgment was affirmed.

The same ordinance comes up for construction that was passed upon in the case of The City of St. Louis v. The Independent Insurance Company of Massachusetts, 47 Mo. 146, and the difference between the two cases is that that was a foreign insurance company, while the defendant here is a home company chartered by the Legislature of this State. The special provision of the statute, which we held in that case was not repealed, applied exclusively to foreign insurance companies, and therefore has no application to the present case.

The counsel for the appellant assumes two positions in this court: first, that the power given to the city in its charter to license does not authorize the imposition of a tax for revenue; and, secondly, that by the act of incorporation granted by the State, the defendant is exempt from taxation in the manner here attempted.

1. By the forty-fifth subdivision of the section, the charter merely gives the power “to license all insurance companies,” etc. The uniform course of decision is that a right to license an employment does not imply the right to charge a license fee therefor with a view to revenue, unless such seems to be the manifest purpose of the power; but the authority of the corporation will be limited to such a charge for the license as will cover the necessary expenses of issuing it, and the additional labor of offices and expenses thereby imposed. A license is issued under the police power, but the exaction of a license fee with a view to revenue would be an exercise of the power of taxation; and the charter must plainly show an intent to confer that power, or the municipal corporation can not assume it. (Cooley Const. Lim. 201; State v. Roberts, 11 Gill. & J. 506; Mays v. Cincinnati, 1 Ohio St. 268; Cincinnati v. Bryson, 15 Ohio, 625; Freeholders v. Barber, 2 Halst. 64; Kip v. Patterson, 2 Dutch. 298; Bennett v. Birmingham, 31 Penn. Stat. 15; Chilvers v. People, 11 Mich. 43; Mayor, etc., v. Yuille, 3 Ala. 144.) In the case of Freeholders v. Barber, 2 Halst. supra, it was held that an act establishing and confirming the charter of the borough of Elizabeth, which authorized the Court of General Sessions to license innkeepers, did not thereby confer the power to impose a tax on them for the license. In Cincinnati v. Bryson, supra, it was decided that the right to license and regulate conferred no taxing power, and the court in their opinion say: “In general, the authority to license carries with it the power to impose the terms and conditions upon which it shall be granted. It would seem that the right to license and regulate, and to provide by ordinance for the carrying into effect the powers expressly conferred upon them, are sufficient to justify all reasonable acts incident to the business.”

The court upheld the ordinance on the ground that the license fee was a reasonable act for regulating the business, and not an attempt to exercise the taxing power for purposes of revenue.

In the case of Boston v. Schaffer (9 Pick. 415), the suit was on a bond of $1,000, in consideration of a license for a theater. It was objected that the power to license conferred no authority to tax. The court sustained the authority upon the peculiar phraseology used and the manifest intention of the Legislature. They used this language: “It is objected that the statute of 1821, ch. 110, gives no power to the city to exact money for the license. The authority to the mayor and aldermen is to license ‘on such terms and conditions as to them may seem just and reasonable.’ Though the exacting of money is not expressly mentioned, it is not excluded by these general words, and was doubtless in the contemplation of the Legislature; for in the statutes of 1825, ch. 152, § 1, by which the selectmen of each town are empowered to license theatrical exhibitions, the same language is used, and in section 3 it is provided that all moneys which shall be received for such licenses (if any) shall be appropriated, etc. This is a legislative construction of the first statute.”

The words “to license” may imply the power to tax when such is the manifest intention; but taken disconnected and alone they will not generally confer that authority. The intention may be readily gathered by referring to the powers given the city in the section we are now considering. It is one of enumerated powers, and grants authority to the mayor and city council to legislate upon the general police of the city. In the eighteenth subdivision it confers authority “to license, tax, and regulate auctioneers, grocers,” etc. The nineteenth gives power “to license, tax, and regulate horse railroad cars, hackney carriages,” etc. The twenty-first, “to license, tax, regulate, and suppress theatrical and other exhibitions, shows, and amusements.” Twenty-second, “to license, tax, restrain, prohibit and suppress billiard tables,” etc. But in the forty-fifth the power is...