City of St. Louis v. Spiegel

• Decision Date: 31 January 1887
• Parties: The City of St. Louis v. Spiegel, Appellant
• Court: Missouri Supreme Court

2 S.W. 839

90 Mo. 587

The City of St. Louis v. Spiegel, Appellant

Supreme Court of Missouri

January 31, 1887

Appeal from St. Louis Court of Appeals.

Reversed.

J. C McGinnis and L. A. Steber 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 for taxation. If the ordinances passed in pursuance of this authority are in effect, revenue measures, they are illegal. City of St. Louis v. Boatmen's Insurance Co., 47 Mo. 150; City of St. Louis v. Laughlin, 49 Mo. 559, 564; Express Company v. City of St. Joseph, 66 Mo. 675 680; State v. New Brunswick, 43 N. J. Law, 175; Muhlenbrinck v. Commissioners, 42 N. J. Law, 346; Railroad v. Hoboken, 41 N. J. Law, 71, and cas. cit.; State v. Mayor, 33 N. J. Law, 280; City of Brooklyn v. Nodine, 33 N.Y. 512; Dill. on Mun. Corp. [3 Ed.] secs. 358, 768; In re Wan Yin. 22 F. 701; City of St. Paul v. Traeger, 25 Minn. 248, 251; City of Mankato v. Fowler, 32 Minn. 364; Vansant v. Harlem Stage Co., 59 Md. 330. (2) The doctrine of ejusdem generis, by which it is sought to maintain the power to tax meat shops, does not apply to this case. The concluding paragraph of the charter provisions to "license, tax, regulate and suppress," is confined to occupations, etc., "not heretofore enumerated." Meat shops being enumerated are, therefore, clearly excluded from the power to tax, and we need not resort to the rule of ejusdem generis to see if, by any inference, they come within the generic class of other occupations mentioned. Expressio unius exclusio alterius. City of St. Paul v. Traeger, 25 Minn. 248. (3) The city charter does not authorize the taxation of the occupation of a meat shop man. The power of taxation, when vested in a municipal corporation, must appear in plain and express terms, or it cannot be assumed. City of St. Louis v. Laughlin, 49 Mo. 559, 566; City of St. Louis v. Boatmen's Insurance Co., 47 Mo. 153; City of St. Louis v. Sternberg, 66 Mo. 289, 296; Cooley on Const. Lim. 201; Dill. on Mun. Corp. [3 Ed.] secs. 89, 91, 763; Wood on Nuis. [2 Ed.] 820; Burroughs on Tax. sec. 128; Mays v. Cincinnati, 1 McCook (Ohio), 268, 273; City of St. Paul v. Traeger, 25 Minn. 248, 251; City of Mankato v. Fowler, 32 Minn. 364; Vansant v. Harlem Stage Co., 59 Md. 330; Delcambre v. Clere, 34 La. Ann. 1050. Otherwise, they will be treated as denied. Wood on Nuis. [2 Ed.] 820, note 2. "And any doubt or ambiguity arising, with reference thereto, must be resolved in favor of the public." Clark v. Davenport, 14 Iowa 494, 500; State to use v. Smith, 31 Iowa 493, 496; City of St. Paul v. Stultz, 7 Am. & Eng. Corp. Cases, 668; S. C., 33 Minn. 233; Vansant v. Harlem Stage Co., 59 Md. 330, 333-334. (4) The amount of fifty dollars fixed as the license fee in the ordinance is, in effect, a tax, and as such is not authorized by the charter. A license fee beyond the reasonable fee for issuing the licenses imposed, under such circumstances, and of inspecting and regulating the business, is taxation for revenue purposes, and is not the legitimate exercise of the power of licensing under the authority given to a city for police purposes. City of St. Louis v. Boatmen's Insurance Co., 47 Mo. 150; Railroad v. Hoboken, 41 N. J. Law (12 Vroom) 71, 82; Mayor v. Railroad, 32 N.Y. 261; City of Burlington v. Putnam Insurance Co., 31 Iowa 102, 105-6; In re Wan Yin, 22 F. 701; Cooley on Const. Lim. *201; City of St. Paul v. Traeger, 25 Minn. 248, 251; City of Mankato v. Fowler, 32 Minn. 364; Vansant v. Harlem Stage Co., 59 Md. 330. (5) Evidence is admissible to demonstrate that an ordinance is unreasonable, oppressive, etc. Corrigan v. Gage, 68 Mo. 541; Clason v. Milwaukee, 30 Wis. 316. (6) If the city has power to tax meat shops, the tax must be uniform upon the same class of subjects within the territorial limits of the city. Mo. State Const., art. 10, sec. 3; City v. Spiegel, 75 Mo. 145. Courts will prevent any exercise of partial legislation. Mayor v. Althrop, 5 Cold. (Tenn.) 555. The city has no power to provide taxing districts. State v. Comptroller, 44 N. J. Law, 572. A court will look behind or beyond the mere words of the statute, however chosen or arranged, to see if, in its actual operation, it must necessarily result in discrimination. Ex parte Hanson, 28 F. 126, 129.

Leverett Bell for respondent.

(1) The power is given by the city charter to impose a license tax on the occupation of keeping a meat shop, and the ordinance provisions are valid. St. Louis v. Spiegel, 8 Mo.App. 478; S. C., 75 Mo. 145. (2) The feature in section one, of the existing ordinance, permitting the owners of meat shops to sell meat from their wagons in the new limits of the city, is a proper regulation of the business, and one entirely competent for the assembly to make. The fact that the ordinance does not, in terms, embrace persons selling meat in the markets of the city, affords no ground for holding the ordinance invalid. The Supreme Court, in St. Louis v. Jackson, 25 Mo. 37, held that the city had power to forbid the sale of fresh meat in less quantities than one quarter, except in a butcher's stall in a market. And in St. Louis v. Weber, 44 Mo. 547, the same court held that a meat shop ordinance that exempted from its operation the lessee of a butcher's stall in a market, was a valid exercise of power by the city.

OPINION

Sherwood, J.

The defendant was prosecuted in the first district police court of St. Louis, for violating sections 1 and 4, of article 3, of chapter 23, of the revised ordinances of the city, approved March 29, 1881, as amended by ordinance 12,508, approved July 21, 1883, by keeping a meat shop without a license. The case was tried in the police court on November 6, 1883, and the defendant was found guilty and adjudged to pay a fine of fifty dollars and costs. He appealed to the St. Louis court of criminal correction, where the case was tried anew and the defendant was discharged. The city appealed to the St. Louis court of appeals, where judgment was rendered in its favor. 16 Mo.App. 210. The case is here by appeal.

On a former occasion, when the defendant was prosecuted under ordinance 10,384, known as the meat shop ordinance, for a violation thereof, and appealed to this court, we held that the license fee was a tax within the meaning of section 3, article 10, of our state constitution; a section which provides that taxes "shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax." And because that ordinance imposed a tax of twenty-five dollars on meat shops in one portion of the city, and a tax of one hundred dollars on meat shops in another portion of the city, we held that the ordinance discriminated in favor of one class of meat shops and against the other, and was, therefore, obnoxious to the constitutional provisions above noted. The sections 1 and 4 of ordinance 12,508, under the provisions of which the defendant was convicted, are as follows:

"Section. 1. No person, persons, or co-partnership of persons shall open or keep a meat shop in the city of St Louis, without having first obtained, from the collector, a license therefor, and any person, persons, or...