City of St. Louis v. Baskowitz

• Decision Date: 04 March 1918
• Citation: 201 S.W. 870,273 Mo. 543
• Parties: CITY OF ST. LOUIS v. SAM BASKOWITZ, Appellant
• Court: Missouri Supreme Court

201 S.W. 870

273 Mo. 543

CITY OF ST. LOUIS v. SAM BASKOWITZ, Appellant

Supreme Court of Missouri, First Division

March 4, 1918

Appeal from St. Louis Court of Criminal Correction. -- Hon. Victor H. Falkenhainer, Judge.

Affirmed.

Jamison & Thomas for appellant.

(1) Where the provisions of an ordinance are so interwoven and connected as to be interdependent, each part having a general influence over the rest, and a particular provision thereof is void, the entire ordinance will be so declared. Kirkwood v. Highlands Co., 94 Mo.App. 637; Hannibal v. Tel. Co., 31 Mo.App. 23; State ex rel. v. Clifford, 228 Mo. 208; Chicago v. Gunning System, 114 Ill.App. 377. (2) A city possesses no inherent power to license or to regulate any occupation, or to require the payment of a tax for the privilege of engaging in the same. That power must be expressly granted in its charter or the statute of the State; and, where there is any fair and reasonable doubt concerning the existence of the power of a municipal corporation to license, or to regulate or to impose a license tax upon any occupation, it is to be resolved against the corporation. The express enumeration of certain occupations or businesses in the charter of the municipality is by a well known canon of construction an exclusion of all other occupations, although the enumeration of the special occupations may be followed by a general clause regarding all occupations and trades of whatsoever character. R. S. 1909, sec. 9580; Kansas City v Grush, 151 Mo. 128; Fulton v. Craighead, 164 Mo.App. 90; Independence v. Cleveland, 167 Mo. 384; Joplin v. Leckie, 78 Mo.App. 12; Trenton v Clayton, 50 Mo.App. 535; St. Louis v. Laughlin, 49 Mo. 559; Knapp v. Kansas City, 48 Mo.App. 485; State v. Butler, 178 Mo. 312; St. Louis v. Kaime, 180 Mo. 309; St. Louis v. Construction Co., 244 Mo. 479; State v. Baskowitz, 250 Mo. 82; Belt Co., v. Milwaukee, 138 N.W. 621; Chicago v. Reinschreiber, 121 Ill.App. 114; In re Unger, 22 Okla. 755; Thomas v. West Jersey Railroad, 101 U.S. 82; Herb Bros. v. Alton, 264 Ill. 628; Harris v. Commonwealth, 81 Va. 240; City of Cairo v. Bross, 101 Ill. 475; 1 Dillon on Municipal Corporations (5 Ed.), 237; 2 Dillon on Municipal Corporations (5 Ed.), 586. (3) Section 1605 of Ordinance No. 24751 is unconstitutional and void because it assesses an occupation tax which is not uniform upon the same class of subjects, and is, therefore, violative of section 3, article 10, of the Constitution of Missouri. Judson on Taxation, par. 459, p. 599; State ex rel. v. Ashbrook, 154 Mo. 375; Kansas City v. Grush, 151 Mo. 128. (4) One dealing exclusively in old bottles cannot be regarded as a junk dealer, and hence subject to an ordinance requiring a license of junk dealers; a fortiori, one dealing exclusively in large quantities of new and old bottles, the largest percentage thereof being in new bottles, cannot be regarded as a dealer in junk. Carbury v. United States, 116 F. 773; Chicago v. Reinschreiber, 121 Ill.App. 114; Chicago v. Lowenthal, 242 Ill. 404; City of Chicago v. Lowenthal, 146 Ill.App. 570; Metal Refining Co. v. Chicago, 140 Ill.App. 599; Lines v. Savannah, 61 S.E. 598. (5) The trial court erred in sustaining the objection of plaintiff's counsel to defendant's exhibit showing that a merchant's state and city license had been issued to the defendant. To have exacted the license fee required by the ordinance in question in this case, together with the merchant's state and city license, would be double taxation. Etterman v. Shelton, 104 Tenn. 70; Newport v. Fitzer, 115 S.W. 742; Kansas City v. Grush, 151 Mo. 128. (6) The appellant's motion to quash should have been sustained and the appellant discharged, because the ordinance is unconstitutional and void; because it deprives the appellant of his property without due process of law and is, therefore, in violation of section 30, article 2, of the Constitution of Missouri; further, because it authorizes unreasonable searches and seizures for private purposes and is, therefore, in violation of section 11, article 2, of said Constitution. Lowry v. Rainwater, 70 Mo. 152; St. Joseph v. Levin, 128 Mo. 588; 1 Bishop on Criminal Procedure (4 Ed.), sec. 240; Robinson v. Richardson, 13 Gray, 454.

Charles H. Daues and H. A. Hamilton for respondent; Phillip W. Moss of counsel.

(1) The city of St. Louis is authorized by its charter to license, tax and regulate dealers in junk and secondhand articles. Charter, art. 3, sec. 26, cl. 5; St. Louis v. Herthel, 88 Mo. 128; St. Louis v. Bowler, 94 Mo. 630; St. Louis v. Weitzel, 130 Mo. 600; Bank v. Ripley, 161 Mo. 132; Ex parte Smith, 231 Mo. 111; Gunning Co. v. St. Louis, 235 Mo. 99; St. Louis v. Herthel, 14 Mo.App. 471; St. Joseph v. Lung, 93 Mo.App. 626. (2) Junk shops and dealers in second-hand articles are subject to license and regulation by the city under its police power. Charter, art. 3, sec. 26, cls. 6, 12, 14; St. Joseph v. Levin, 128 Mo. 588; Gunning Co. v. St. Louis, 235 Mo. 99; Kansas City Co. v. Kansas City, 240 Mo. 659; State v. Baskowitz, 250 Mo. 82; Grand Rapids v. Braudy, 105 Mich. 570; Grossman v. Indianapolis, 173 Ind. 157; Marmet v. State, 45 Oh. St. 63; State v. Phillips, 77 Oh. St. 215; State v. Cohen, 73 N.H. 543; Commonwealth v. Hood, 183 Mass. 196; Commonwealth v. Silverman, 220 Mass. 552; Levi v. Anniston, 46 So. 237. (3) It is competent for the city, as the delegated agent of the State, to collect an ad valorem tax on property used in a business, and also impose a license tax on the pursuit of the business. St. Louis v. Green, 70 Mo. 562; St. Louis v. Weitzel, 130 Mo. 600; Aurora v. McGannon, 138 Mo. 38; Monett v. Hall, 128 Mo.App. 91. (4) Where certain provisions of an ordinance attacked are valid and such provisions are severable from others claimed to be invalid, the whole enactment will not be declared void, but the valid portions will be sustained unless that would defeat the general purpose of the law. Quinette v. St. Louis, 76 Mo. 402; Asphalt Co. v. Ullman, 137 Mo. 569; St. Louis v. Liessing, 190 Mo. 489; Gist v. Construction Co., 224 Mo. 388; State ex rel. v. Clifford, 228 Mo. 194; State v. Cohen, 73 N.H. 543. (5) An ordinance passed in the exercise of legal authority will not be declared void on the ground of unreasonableness unless no difference of opinion can exist upon the question, and a clear case must be made to authorize a court to interfere on that ground. St. Louis v. Weber, 44 Mo. 547; Gratiot v. Railroad, 116 Mo. 450; Chillicothe v. Brown, 38 Mo.App. 609; Kansas City v. Sutton, 52 Mo.App. 398.

WOODSON J. Bond, P. J., absent.

OPINION

WOODSON, J.

The defendant was arrested and prosecuted by the city of St. Louis for the violation of section 1605 of Ordinance No. 24751 of said city, providing for the licensing, regulation and control of junk dealers in said city. From a judgment of conviction in the St. Louis Court of Criminal Correction the defendant duly appealed the cause to this court.

The section of the ordinance mentioned insofar as is here material reads:

"Any person or persons engaging in the business of buying, selling or dealing in old junk, metals, bottles syphons, books or other articles usually found in junk shops, and having a store, stand or place of business, are hereby declared to be 'Junk Merchants' and they shall pay a license fee of fifty dollars per annum; such license shall be available only to the person or persons in whose name or names it is issued, and shall not be used by any person or persons other than the original licensee or licensees: any holder of such license who permits it to be used by any other person, or any other person who uses such license granted to any other person, shall each be deemed guilty of a violation of this ordinance. Any person carrying on the business of Junk Peddler or Junk Merchant or operating or using a cart or wagon in said business, without license, shall be deemed guilty of a violation of this section. . . . Every Junk Merchant shall keep a book of registry in which shall be legibly recorded in ink or indelible pencil the names and addresses of all parties from whom he purchases any article whatsoever, together with the date of such purchase and a full and accurate description of the article together with any marks, brands, letters or words of identification thereon, if any such there be. And any Junk Merchant who shall buy, purchase, or in any manner acquire possession of any article having blown, stamped, etched or otherwise indelibly marked thereon any marks, brands, letters or words shall be deemed to buy, purchase or acquire the same with notice of any pre-existing right or title to such article in the owner or proprietor of such marks, brands, letters or words which may by such owner or proprietor be established. Said book of registry shall at all times be kept open for the inspection and examination of the police or any citizen. Any Junk Merchant who shall fail to keep such book of registry or who shall fail to record therein the description by this section required shall be deemed guilty of a violation of this ordinance and upon conviction thereof, he shall be fined as hereinafter prescribed, and in addition thereto his license shall be revoked by the License Collector. It shall not be lawful for any Junk Peddler or Junk Merchant to buy or receive any property from any minor without the written consent of the parent or guardian of such minor. Should any controversy arise respecting the ownership of any property alleged to have been purchased by any person licensed under this section, the burden of proof shall be on such licensee to prove the name and residence of his vendor. The provisions of this section shall apply to second-hand dealers and plumbers who may deal in the articles...