City of St. Louis v. Sternberg

• Decision Date: 30 April 1879
• Citation: City of St. Louis v. Sternberg, 69 Mo. 289 (Mo. 1879)
• Parties: CITY OF ST. LOUIS, Appellant, v. STERNBERG.
• Court: Missouri Supreme Court

69 Mo. 289

CITY OF ST. LOUIS, Appellant,

v.STERNBERG.

Supreme Court of Missouri.

April Term, 1879.

Appeal from St. Louis Court of Appeals.

The charter of the city of St. Louis proposed by the board of freeholders and adopted by a vote of the people in accordance with the provisions of section 20, article 10, of the constitution of 1875, contained the following, among other provisions:

Article 3, section 26.The mayor and assembly shall have power within the city, by ordinance not inconsistent with the constitution or any law of the State, or of the charter: First, To assess, levy and collect all taxes for general and special purposes, on real and personal property and licenses; * * Fifth, To license, tax and regulate lawyers, &c.* * Tenth, To impose, collect and enforce fines, forfeitures and penalties for the breach of any city ordinance, * * Fourteenth, To pass all such ordinances, not inconsistent with the provisions of this charter, or the laws of the State, as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures, and to enforce the same by fines and penalties not exceeding $500, and by forfeitures not exceeding $1,000.* *

Article 5, sec. 1.For the support of the government of the city, the improvement thereof, and the payment of the public debt, the municipal assembly shall, by ordinance, annually levy and collect taxes on all subjects and objects of taxation.* *

Sec. 4.The assembly shall also provide, by ordinance, for the levy and collection of all other taxes, licenses, wharfages, and other dues of every description, and to fix the penalties for neglect or refusal to pay the same according to law and ordinance.

Leverett Bell and Samuel Erskine for appellant.

The State has power to license, tax and regulate lawyers.State v. Simmons,12 Mo. 271;Stewart v. Potts,49 Miss. 749.This power may be delegated to a municipal corporation.City v. Laughlin,49 Mo. 559;Goldthwaite v. Montgomery,50 Ala. 486;Mayor v. Hines,53 Ga. 616;Ould v. Richmond, 23 Gratt.(Va.) 464.The charter of the city of St. Louis is a grant of power to the city by the State.Under the charter, the city is in express terms authorized to license, tax and regulate lawyers.

The city is authorized to impose, collect and enforce fines, forfeitures and penalties for the breach of any city ordinance.It is, therefore, authorized to impose, and provide for the collection of a fine from one who shall, in violation of ordinance, practice law without a license.This is not a proceeding to collect the license tax.It is to collect the penalty for doing business without a license.One may practice law for a year by taking a license from the city and paying $25 therefor; or, if he prefer to continue the practice without a city license, he may indulge his pleasure, but will be subjected to the payment of appropriate penalties for so doing.Payment of the penalty does not entitle the offender to a license.He is still required to pay for a license, and a separate penalty for every distinct infraction of the ordinance may be imposed.The ordinance does not purport to make the non-payment of the license fee a misdemeanor.It simply enacts that one carrying on the business without a license, shall be guilty of a misdemeanor, and shall be fined.

We have nothing to do here with the inquiry whether the practice of the law is malum in se; nor whether the act of one in continuing the practice of the law in the city of St. Louis, without obtaining a city license therefor, involves any moral delinquency or evil intent.This case is not to be determined by principles governing the case of one charged with the commission of a felony.In the latter case, of course, there must be present a criminal intent.But, in dealing with a breach of a city ordinance, such as is here presented, the intent of the defendant is utterly irrelevant to the case.If one fails to observe the ordinance, a penalty accrues to the city which may be sued for and recovered by the city, and it makes no difference whether the failure to comply with the ordinance arose from accident or design.State v. Jamison,23 Mo. 330;State v. Rucker,24 Mo. 557;State v. Myers,63 Mo. 324.As early as 1847, it was held that a proceeding of this character is an action of debt to recover the fine or penalty imposed by ordinance.City v. Smith,10 Mo. 438.And, although many cases of a like character to the one here presented, appear in the Missouri Reports, in none of them has it been suggested or held that an ordinance imposing a license tax is invalid for the reasons urged by the court of appeals.SeeCity v. Jackson,25 Mo. 37;City v. Weber,44 Mo. 547;City v. Laughlin,49 Mo. 559;City v. Sanguinet,49 Mo. 581;City v. Manf. Sav. Bank,49 Mo. 574;City v. Life Association,53 Mo. 466;Cincinnati v. Buckingham,10 Ohio 257;White v. Kent,11 Ohio St. 550;Vandine, petitioner,6 Pick. 187;Nightingale, petitioner,11 Pick. 167;Shelton v. Mobile,30 Ala. 540;Chilvers v. People,11 Mich. 43;Brooklyn v. Cleves, Lalor'sRep. 231;Buffalo v. Webster,10 Wend. 99.

McGinniss & Searle for respondent.

1.The lawyer's license provided in this ordinance is either in the exercise of the police power of the city or for purposes of revenue alone.It cannot be the former, for lawyers are not amenable to the city of St. Louis for their professional conduct, nor can they be made so.If it be the latter, then it must be in pursuance of power “plainly and unmistakably conferred.”But it is nowhere expressly conferred.If conferred at all, it must be by necessary implication from the grant of power to the freeholders “to propose a scheme,” & c. But such an implication cannot be maintained against the express declarations of the constitution that revenue laws shall be general, and that the charter of the city “must be in harmony with and subject to the constitution and the laws of the State.”And in any event the charter cannot provide a tax upon lawyers, because the lawyers' right or privilege, as a subject of taxation, is unknown to the laws of the State, except in the ““general municipal corporations act,” not adopted by St. Louis.Dillon on Munic. Corp., §§ 291,295,605,609;State v. Hoboken,30 N. J. Law 225: Ward v. Maryland,12 Wall. 418;Cooley'sCon. Lim., 291, 495, 517, 518;Savannah v. Hartridge,8 Ga. 23, 26;Constitution of Mo,, art. 10, §§ 1,3,10;art. 9, § 25;Ruggles v. Collier,43 Mo. 375;St. Louis v. Clemens,43 Mo. 404;Hitchcock v. St. Louis,49 Mo. 488;St. Louis v. Laughlin,49 Mo. 559;Dillon on Munic.Corp., §§ 55, 300;Lot v. Ross,38 Ala. 156, 161.

2.Conceding to the freeholders the power to authorize taxing by charter provision, how further stands this ordinance in the light of the constitution and laws of the State?If it imposes this license and tax in exercise of its police power, it is void, because lawyers are not subjects of police regulations.If for revenue purposes only, then it is in violation of section 3, article 10, of the constitution, as utterly ignoring the rule of uniformity.If it be not strictly speaking a license, or privilege tax, it is strictly speaking a tax for revenue; and being such, there is no justice in exacting the same tax from a lawyer whose income amounts to a few hundred dollars per annum, and one whose income amounts to as many thousand.Cooley'sCon. Lim., §§ 495, 201;Ould v. Richmond,23 Gratt. 464.

3.The lawyer's profession is an absolute and vested right, conferred upon him by the judgment of the court--a right of which he cannot be deprived at the pleasure of the court or the command of the Legislature--a right of which he may be deprived only by the judgment of the court for professional misconduct, and after an opportunity to be heard.Consequently if a license tax may be exacted of him, he cannot be prohibited from enjoying such vested right because his tax is unpaid.If the tax cannot be collected otherwise than prohibiting him from pursuing his practice, the city has no remedy against him.Moreover, his status as an officer of court is fixed by the constitution and laws of the State, and the attempt of the city, under its assumption of the licensing and taxing power, to destroy his status therein, would be in violation of the constitution and laws of the State; and this the constitution forbids.Moreover, lawyers having obtained their licenses from the courts, as prescribed by the statutes of the State, to practice in their profession, cannot be required by the city of St. Louis to obtain an annual license from the city collector to enable them to continue their practice.This would be, in effect, an annulment of their original license.It would be the destruction of a vested right, if not an “impairing of the obligation of a contract” within the prohibition of the constitution of the United States.Lawyers' Tax Cases, 8 Heisk.(Tenn.) 634;Ex parte Garland,4 Wall. 333;Murphy and Glover, Test Oath Cases,41 Mo. 339;In the matter of Cooper,22 N. Y. 81;Ould v. Richmond,23 Gratt. 469;Butler's Appeal,73 Pa. St. 452.

4.Lawyers are officers in the judicial department of the government, and the assumption of the taxing power as to them would be an unwarrantable and dangerous legislative interference with a co-ordinate branch of the government, the tendency of which would be to disturb the balance in our political organization.The danger and tendency of such interference is predicated upon the ground that the power to tax implies a power to destroy.The existence of the power being conceded, the extent of its exercise is a question entirely of legislative discretion.It might be so exercised that the legal profession would be virtually taxed out of existence, thereby greatly impairing, if not utterly destroying the efficiency of the courts and impeding the administration of justice.

NORTON, J.

This proceeding was commenced in the police court of the city...