City of St. Louis v. Sternberg

• Decision Date: 13 November 1877
• Citation: 4 Mo.App. 453
• Parties: CITY OF ST. LOUIS, Respondent, v. THEODORE STERNBERG, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 453

CITY OF ST. LOUIS, Respondent,

v.THEODORE STERNBERG, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 13, 1877.

1. The Board of Freeholders, in making the provisions as to the taxing power of the city contained in the Charter of the city of St. Louis adopted in 1876, do not exceed the powers given them by the Constitution of 1875.

2. A moderate tax upon all lawyers practicing their profession in the city of St. Louis is not in violation of any provision of the Constitution of 1875.

3. A provision of a city ordinance which makes the non-payment of a tax imposed by ordinance upon a lawyer for practising his profession a criminal or quasi-criminal offence, the punishment for which is by a fine, which may be followed by imprisonment, is void.

APPEAL from St. Louis Court of Criminal Correction.

Reversed, and defendant discharged.

MCGINNIS & SEARLE, for appellant: Municipal corporations cannot impose taxes unless authorized by the Legislature.--Const. 1875, art. 10, secs. 1, 10; Dill. on Mun. Corp., secs. 605, 606; Cooley's Const. Lim. 517, 518. The power cannot be inferred.-- Ruggles v. Collier, 43 Mo. 375; City of St. Louis v. Clemens, 43 Mo. 404; Hitckcock v. City of St. Louis, 49 Mo. 488; City of St. Louis v. Laughlin, 49 Mo. 559. Equality and uniformity in taxation.-- Simmons v. The State, 12 Mo. 174; Cooley's Const. Lim. 495-499. Payment of taxes cannot be enforced by fine and imprisonment.-- Ould v. The City, 23 Gratt. 464; Butler's App. 73 Penn. 452. “The privilege of the lawyer secures to him an absolute vested right to practise law during good behavior.”--Lawyers' Tax Cases, 8 Heisk. 634; Ex parteGarland, 4 Wall. 333; 41 Mo. 338; 22 N. Y. 81.

LEVERETT BELL and SAMUEL ERSKINE, for respondent, cited: Goldthwaite v. Montgomery, 50 Ala. 486; Stewart v. Poth, 49 Miss. 749; Mayor v. Hynes, 53 Ga. 616; Ould v. Richmond, 23 Gratt. 464; Youngblood v. Sexton, 32 Mich. 406.

BAKEWELL, J., delivered the opinion of the court.

The city of St. Louis, on September 7, 1877, passed an ordinance, in the following words:

“Sec. 1. No person shall exercise, within the city of St. Louis, the business or profession of a lawyer, without a license therefor as hereinafter provided.

Sec. 2. A lawyer, within the purview of this ordinance, is a person who is put in the place, stead, or turn of another, to manage his matters of law, or whose office is to appear for parties to actions and other judicial proceedings, and to prosecute and defend them in their behalf, and whose authority is derived either from a formal warrant of attorney or a mere oral retainer.

Sec. 3. Every lawyer, before entering upon or continuing the business or practice of his profession in the city of St. Louis, shall obtain from the collector an annual license therefor, for which he shall pay to the collector, in advance, the sum of twenty-five dollars.

Sec. 4. Any person who violates any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and on conviction shall be fined not less than twenty-five nor more than fifty dollars for each offence.”

The defendant was charged with a violation of this ordinance, by practising his profession as a lawyer in the city of St. Louis without having paid his license. He was found guilty and a fine imposed, and he appeals to this court. The facts in the case are agreed upon.

It is contended by appellant that the license provided for in this ordinance is for the sole purpose of raising revenue; is, therefore, a tax; and that the ordinance is void because the city of St. Louis, under its present Charter, does not possess the taxing power.

The Constitution of 1875, by a special provision, authorized the election of a board of freeholders of the city or county of St. Louis, who were to reorganize the government of the city by framing a charter in harmony with and subject to the laws of Missouri, to contain certain specific provisions; the charter thus framed to become the organic law of the city, and to supersede the then existing charter in sixty days after its ratification by a vote of the people. The freeholders met and performed the duties imposed upon them; and the new Charter has been adopted according to law. It gives express power to the mayor and Assembly, by ordinance not inconsistent with the Constitution or any law of the State, to assess, levy, and collect all taxes for general and special purposes, on real and personal property, and licenses, and also to license, tax, and regulate lawyers.

The power to levy taxes was contained in the Charter of St. Louis abrogated by the adoption of the existing law, and has been contained in every charter ever granted to the city. The Constitution of 1875 (art. 10, sec. 10) provides that the General Assembly shall not impose any taxes upon any cities for municipal purposes, but may, by general law, vest in the corporate authorities thereof the power to do so. The Constitution also provides (art. 9, sec. 7) that the General Assembly shall provide, by general laws, for the organization of towns and their classification into four classes, the power of each to be defined by general laws, so that all of the same class shall have the same powers; and the General Assembly is to make provisions, by general law, whereby any city, town, or village existing may elect to be governed by such general laws. Section 16 of the same article provides a means by which any city of a population of 100,000 may frame a charter through a board of freeholders. Under these provisions of the Constitution, and for the purpose of carrying them into effect, an act of the General Assembly was passed at its last session (Acts 1877, p. 48) providing for incorporating cities of the first class, and which prescribes a mode in which any such city may become incorporate, and gives full corporate powers to all such cities, including the power of taxation, in terms as provided in the Charter of the city of St. Louis. No legislative provision giving any power of taxation to the city of St. Louis has been made, or, so far as we can see, can be made, under the Constitution, unless the city of St. Louis, renouncing its present Charter, should become a municipal corporation under the act just referred to, as a city of the first class. Are we, then, to suppose that St. Louis alone, of all cities and towns of Missouri, has, under the Charter granted to it by a special constitutional provision, no power of taxation, and that this was the intention of the framers of the Constitution of 1875? The proposition needs only to be stated. It refutes itself. Such a charter would not comply with the 20th and 23d sections of the 9th article, since it would not be in harmony with the laws of the State concerning the incorporation of other cities.

It is true that municipal corporations can levy no taxes, general or special, unless the power be unmistakably conferred. But this need not mean that it must be specifically granted in set terms. It is a question of intention. It is held, to be sure, in the interpretation of legislative enactments, that the power to tax cannot be inferred from general clauses in a municipal charter. But such rulings have nothing whatever to do with the case before us. The power to tax is explicitly given in the Charter of the city, adopted under the constitutional provision cited above; and in view of that provision, and the other provisions of the Constitution on the subject of municipal corporations, there can be no doubt that it was the intent and meaning of the framers of the Constitution of the State that the charter to be framed by the Board of Freeholders for the city of St. Louis should contain such provisions in regard to taxation as should be found by them expedient, and as should violate no constitutional provision. To hold otherwise is to hold that the framers of the Constitution offered to St. Louis a charter under which she could have no revenue, and consequently no police, no water-works, no street lighting or paving, no means of subsistence, and no life. In our opinion, the framers of the Constitution, by the provisions concerning the framing of a new charter for the city of St. Louis, intended to delegate, and did delegate, to the city of St. Louis the power to exercise, by such charter as it should adopt under these provisions, and by amendments thereto, as full taxing power as it could exercise, subject to the provisions of the Constitution on the subject of taxation, or as could be exercised by any other city in the State.

The power of the State to tax all professions is unquestioned. This has been settled in Missouri. That the State may tax lawyers, and may delegate to a municipal corporation the power to tax them, was decided in 1848, in the case of Simmons v. The State, 12 Mo. 268; and was reasserted in 1872, in City of St. Louis v. Laughlin, 49 Mo. 561. We must hold that this power has been fully delegated to the city of St. Louis by the Constitutional Convention of 1875, unless we are to maintain that the city has no taxing power at all, which seems to be absurd. The provision of the Constitution (art. 10, sec. 1) that the taxing power may be exercised by municipal corporations, under powers to be granted them by the General Assembly, is not to be inter preted as a declaration that St. Louis--which by this same Constitutio...