City of St. Louis v. Freivogel

• Decision Date: 04 June 1888
• Citation: 8 S.W. 715,95 Mo. 533
• Parties: The City of St. Louis v. Freivogel, Appellant
• Court: Missouri Supreme Court

8 S.W. 715

95 Mo. 533

The City of St. Louis v. Freivogel, Appellant

Supreme Court of Missouri

June 4, 1888

Appeal from St. Louis Court of Criminal Correction. Hon. E. A Noonan, Judge.

Affirmed.

L. A Steber and B. F. Clark for appellant.

(1) The power to license and regulate is a police power for the purpose of regulation only, and cannot be used for the purpose of obtaining revenue or as a basis of taxation. City v. Ins. Co., 47 Mo. 150; City v Laughlin, 49 Mo. 559; Ins. Co. v. City, 66 Mo. 675. (2) The city charter of St. Louis does not authorize the taxation of a meat-shopman or butcher. (3) The amount of fifty dollars fixed in the "license fee" in the city ordinance is in effect a tax and as such is not authorized by the charter. (4) The doctrine of ejusdem generis by which it is sought to maintain the power to tax meat-shop keepers and marketmen or butchers does not apply in this case. (5) Evidence is admissible to show that an ordinance is unreasonable and oppressive. Corrigan v. Gage, 68 Mo. 541; Clason v. Milwaukee, 30 Wis. 316. (6) If the city has power to tax meatshops and butchers or marketmen (whom the ordinance herein places in the same class), the tax must be uniform upon the same class of subjects within the territorial limits of the city. Const. Mo., art. 10, sec. 3; City v. Spiegel, 75 Mo. 145. Even if the amount of the tax is the same, there must be no discrimination in the value of the privileges conferred. City v. Spiegel, 90 Mo. 587. Courts will prevent the exercise of any special legislation. Mayor v. Althrop, 5 Cold. (Tenn.) 555. A court will look behind or beyond the mere words of a statute, however chosen or arranged, to see if, in its actual operation, it must necessarily result in discrimination. Ex parte Hanson, 28 F. 127. (7) No discrimination can be made in favor of a grocer, who only deals in certain kinds of meats, or at certain times of the year. Eastman v. Jackson, 74 Tenn. 162. (8) No city ordinance can be made to define English words, nor by it can a "butcher" be made to be a "meat-shop keeper." Mayor v. Cincinnati, 1 Ohio St. 268, 272; State v. Yearby, 82 N.C. 561; State v. West, 34 Mo. 424. The city charter itself makes the distinction by enumerating both "market-places" and "meatshops." City v. Traeger, 25 Minn. 248, 253, 255. (9) There is further discrimination in permitting the meat-shop keeper to deliver meat in a wagon without taking out an additional license therefor (i. e., license for the wagon). No exemption from payment of wagon license is granted to the person who sells in a market. No exemption is made in favor of all other persons in the city who are required to pay a vehicle license tax. (10) There is discrimination between the privileges accorded to the vendor in the market and the one in the meatshop. City v. Spiegel, 90 Mo. 587; Mayor v. Althrop, 5 Cold. (Tenn.) 554; Cooley on Const. Lim., * 390-91.

Leverett Bell for respondent.

The objections made to the ordinance are untenable and the judgment below should be affirmed. St. Louis v. Spiegel, 75 Mo. 145; S. C., 90 Mo. 587; St. Louis v. Herthel, 88 Mo. 128.

OPINION

Norton, C. J.

An ordinance of the city of St. Louis contains the following section: "Sec. 889. No person, persons, or copartnership of persons, shall open or keep a meatshop in the city of Saint Louis, without having first obtained from the collector a license therefor, and any person, persons, or copartnership of persons, doing business as a meat-shop keeper or keepers, shall pay an annual license of fifty dollars in advance, which license shall authorize and empower such person, persons, or copartnership of persons, to sell in their shops all kinds of fresh and salt meats, fresh and salt fish, sausage and sausage-meat, whether made by them or not, and also all kinds of fowl and game in their proper seasons that is not prohibited being sold or offered for sale by any ordinance of this city or law of this state, all kinds of vegetables and fruit, in large or small quantities, for one year from the date of such license, and it is hereby provided that the owners of meatshops, who have paid their license, may be permitted to deliver meat in a wagon or otherwise, without taking out an additional license therefor. It is hereby provided that if any person, persons, or copartnership of persons, shall exhibit for sale or offer for sale any of the above-enumerated articles, vegetables and fruit excepted, in any market, stall, place, or shop in this city, whether sold or not, such person, persons, or copartnership of persons, shall be considered to be meat-shop keepers, as herein defined, and shall be adjudged to be such in the full meaning of this section, and provided further, that nothing in this section shall be so construed as to include grocers who sell ham, shoulders, dried beef, bacon, salt fish, and smoked sausages."

It appears from the record that defendant sold meat in the Union Market in St. Louis, having rented a stall in said market for the purpose of selling meat thereat. He was arrested for conducting said business without first having taken out a license as required by the above ordinance, was convicted in the police court and fined fifty dollars, and on his appeal to the court of criminal correction was again convicted and fined, from which he has appealed to this court, and the first point made by counsel on the appeal is, that while, under the charter of the city, the municipal assembly had the power to license and regulate meatshops, it had no power to tax them. The second point made is, that if the assembly was empowered by the charter to tax meat-shop keepers, that the tax imposed is invalid, because of discrimination, and because it is not uniform.

As to the points made under the first ground of objection, viz that the charter conferred no power to impose such a tax, it may be said that they are identical with those made in the cases of City of St. Louis v. Spiegel, reported in 75 Mo. 145 and 90 Mo. 587. The ordinance, the validity of which was challenged in the cases above cited, as to the question whether the power to tax was given by the charter, is in its essential features bearing on that question like the one in the present case. (See City of St. Joseph v. Ernst, ante, p. 360). Spiegel was convicted for selling meat as a meat-shop keeper without taking out a license, and on appeal to the St. Louis court of appeals, the judgment was affirmed (8 Mo.App. 478); the court in its opinion holding that the charter of the city gives the power to license and tax meatshops, and on that branch of the case it is said: "The charter * * * gives power to the municipal authorities (art. 3, sec. 6) 'to assess, levy, and collect all taxes for general and special purposes on real and personal property, and licenses; * * * to establish market-places and meatshops, and license, regulate, sell, lease, abolish, or otherwise dispose of, the same; * * * to license, tax, and regulate grocers, merchants, retailers, * * * and all other business, trades, avocations, or professions whatsoever; * * * to license, tax, regulate, or suppress all occupations, professions, and trades not...