City of St. Louis v. United Railways Company of St. Louis

• Decision Date: 25 January 1915
• Parties: CITY OF ST. LOUIS v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

174 S.W. 78

263 Mo. 387

CITY OF ST. LOUIS v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Supreme Court of Missouri

January 25, 1915 ^[*]

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Affirmed.

H. S Priest and Herbert S. Hadley for appellant; Morton Jourdan and T. E. Francis of counsel.

(1) No cause of action is stated in the petition. Neither the ordinance sued upon, the charter of the city, nor the laws of this State authorize an action in debt to be maintained for the refusal to take out the license or pay the charge therefor. And the only action that can be prosecuted for the violation of the provisions of the ordinance is one for the penalties prescribed therein; the penal remedy, being the only one provided by the ordinance and authorized by the charter, is exclusive. State ex rel. v. Dix, 159 Mo.App. 573; State v. Snyder, 139 Mo. 553; Carondelet v. Picot, 38 Mo. 125; McPike v. Pen Sheriff, 51 Mo. 63; State ex rel. v. Goodnow, 80 Mo. 271; Railroad v. Maguire, 49 Mo. 490; Hannibal ex rel. v. Bowman, 98 Mo.App. 103; State v. County Court, 13 Mo.App. 53; Monterey v. Abbott, 77 Cal. 541; Santa Cruz v. Railroad, 56 Cal. 143; Charleston v. Phosphate Co., 34 S.C. 541; Weeks v. Forman, 1 Harris (N. J.), 237; State v. Zeigler, 32 N.J.L. 262; Ewbanks v. Ashley, 36 Ill. 177; Israel v. Jacksonville, 2 Ill. 290; Hart v. Albany, 9 Wend. (N.Y.) 571; State v. Trust Co., 209 Mo. 472; Blanchard v. Bristol, 100 Va. 469; Commonwealth v. Fahey, 59 Mass. 408; Cooper v. People, 41 Mich. 403; Excise Comr's. v. Yonkers, 21 Hun (N.Y.), 244; 1 Dillon, Mun. Corp. (4 Ed.), secs. 409, 410, 416; 2 Abbott, Mun. Corp., sec. 552; 2 Kyd. Mun. Corp., p. 169; McQuillin, Municipal Ordinances, p. 475. (2) There is neither averment in the petition nor proof in the record to sustain the judgment. The suit is for a gross sum -- one mill for each pay passenger carried on all the cars of defendant for the quarter ending March 31, 1910 -- and the judgment is for such gross sum. If there be a liability under the ordinance sued upon, it is for one mill for each pay passenger carried upon each car. There is no averment in the petition that any individual car carried any specific number of passengers during such quarter. There must be a separate count for one mill for each passenger carried by each car. (3) The ordinance is invalid because it contains more than one subject, and the subject of its substantive provisions is not clearly expressed in its title, as required by Sec. 13, art. 3, City Charter. (4) The city rests its right to enact the Mill-Tax Ordinance on the provisions of clause fifth, section 26, article 3 of its charter, and the last member of clause fifth of that section. Clause fifth authorizes the mayor and assembly, by ordinances not inconsistent with the laws and Constitution of the State and its charter "to license, tax and regulate" (amongst other things and callings) "street railroad cars." The concluding member of clause fifth of section 26 is, "to license, tax, regulate or suppress all occupations, professions and trades not hereinbefore enumerated, of whatever name and character." The city concedes the Mill-Tax Ordinance to be a revenue measure pure and simple; that it is a tax upon the "business done" by street railroad companies. The above provisions of the charter do not give the city the power to impose a tax for revenue upon "street railroad cars." This is clear from a consideration of: First, the provisions themselves; second, these provisions in connection with other provisions of the charter, in pari materia, relating to the subject of taxation of the property of street railroad companies; third, the contemporaneous construction put upon them by the city; fourth, the ordinance of which the Mill-Tax Ordinance was an amendment or substitute; fifth, the fact that if the word "tax" as used in the above provisions of the charter ever justified the imposition of a charge for revenue, it was repealed by the acts of the Legislature of 1897 and 1901, concerning the assessment and taxation of the property of street railroad companies by the State Board of Equalization. If the word 'tax" was thus stricken out, the only remaining words, "license and regulate" street "railroad cars," would not justify an imposition for revenue. State v. Rawling, 232 Mo. 544; State v. Bengsch, 170 Mo. 197; State ex rel. v. Wiethaupt, 231 Mo. 464; State v. Parker, 236 Mo. 219; Commonwealth v. Brown, 28 L.R.A. 114. Sixth, the act of 1901, authorizing the taxation of the "franchises" of street railroad companies, is a tax upon the right of such companies to prosecute their corporate business and is inconsistent with the right of the city, under any provision of its charter (if any such provision previously existed), to impose a tax on the occupation of such companies. To allow the city to impose such a charge would be double taxation and would violate the constitutional rule of uniformity. State ex rel. v. Railroad, 196 Mo. 523. (5) If the "mill tax" be an occupation or income tax, it is invalid: (1) because the city has no charter power to exact it, and (2) because the defendant derived its right to pursue its corporate occupation from the State, and this right, and its correlative obligation to the State as a quasipublic servant, cannot be impaired by any action of the city. State v. Weber, 44 Mo. 550; City v. Eddy, 123 Mo. 557; State ex rel. v. Wilder, 200 Mo. 105; Kansas City v. Grush, 151 Mo. 134; Sec. 9580, R. S. 1909; Cooley on Taxation, p. 408; St. Louis v. Kaime, 180 Mo. 309; State v. Butler, 178 Mo. 272; Sec. 11572, R. S. 1909; Laws 1901, p. 231; Sec. 1187, R. S. 1909; Railroad v. Hoboken, 41 N.J.L. 79; Barger's Appeal, 109 Pa. 79; Adler v. Whitbeck, 44 Oh. St. 539. (6) If a license tax for regulation, it is void because of its exorbitancy. The defendant is engaged in an useful occupation by authority of the State, and the city has no power to impose a greater license fee upon the cars used in that occupation than is reasonable for the license and labor attending its issuance and the enforcement of the regulations prescribed. Dillon on Municipal Corporations (5 Ed.), p. 1004, sec. 665; Telegraph Co. v. Medford, 115 F. 202; State v. Moore, 22 L.R.A. 472; Springfield v. Jacobs, 101 Mo.App. 339; Knox City v. Thompson, 19 Mo.App. 523; State ex rel. v. Berryman, 142 Mo.App. 380; St. Louis v. Ins. and Trust Co., 47 Mo. 150; Railroad v. Hoboken, 41 N.J.L. 79. (7) If a license charge for revenue, the city has no power to impose it under its charter. If imposed, it is either a tax upon each car, or a tax upon all of defendant's property engaged in producing the income upon which it lays the exaction of two per cent. If a tax upon each car, or other property, it is a double tax, for both are assessed and taxed under the general laws of the State for the benefit of the city. State v. Railroad, 117 Mo. 1; Cooley on Taxation, p. 398; Chicago v. Collins, 175 Ill. 445; Art. 12, chap. 117, R. S. 1909; City v. Grush, 151 Mo. 128; City v. Spiegel, 75 Mo. 145; State v. Switzler, 143 Mo. 332; State v. Bengsch, 170 Mo. 115; Railroad v. Ohio, 49 Oh. St. 189; State v. Railroad, 4 S.C. 376; Brookfield v. Tooey, 141 Mo. 624; Troy v. Harris, 102 Mo.App. 51; St. Louis v. Ins. and Trust Co., 47 Mo. 150; Pollack v. Farnum Co., 157 U.S. 581; Cooley on Taxation, p. 386 and notes; Johnson v. Philadelphia, 60 Pa. 450; Wilksbarre v. Water Co., 7 Kulp (Pa.), 31; 2 Machen, Law of Corp., sec. 2101. (8) If it be a tax upon each car for revenue, it is not uniform upon each car, in contravention of section 3, article 10 of the State Constitution, for the tax upon each car varies with the number of passengers it may carry during each quarter, and hence will vary in its burden upon the owner of the same class of cars engaged in the same occupation, and also discriminates between passenger and all other street cars. It violates the 14th Amendment of the Constitution of the United States which provides that no State shall deny to any person the equal protection of the law. City v. Grush, 151 Mo. 128; City v. Spiegel, 75 Mo. 145; State v. Switzler, 143 Mo. 332; State v. Bengsch, 170 Mo. 115; Railroad v. Ohio, 49 Ohio St. 189; State v. Railroad, 4 S.C. 376; Chicago v. Collins, 175 Ill. 445; Brookfield v. Tooey, 141 Mo. 624; Troy v. Harris, 102 Mo.App. 51. (9) The city's affirmative plea of res adjudicata is not well founded. Boyd v. Alabama, 94 U.S. 645.

William E. Baird and Truman P. Young for respondent.

(1) This controversy has been already adjudicated by the Supreme Court of the United States. The doctrine of res adjudicata applies and makes that decision a complete bar to all of the defenses which defendants are attempting to litigate here. Art. 4, sec. 1, Constitution of the United States; Bank v. Frankfort, 191 U.S. 499; Embrey v. Palmer, 107 U.S. 3. (a) When a Federal court obtains jurisdiction of a controversy it will decide the case upon its merits passing upon both State and Federal questions. Siler v. Railroad, 213 U.S. 192; Bank v. Layman, 134 F. 635; Washington-Oregon Corp. v. Chehalis, 202 F. 591; Simpson v. Stock Yards Co., 110 F. 801; Bates on Federal Procedure, sec. 660; Osborne v. Bank, 9 Wheat. 739; Managault v. Ward, 123 F. 707, 197 U.S. 473; Black on Judgments (2 Ed.), 938; Gormley v. Clark, 134 U.S. 338; Mich. Railroad Cases, 138 F. 223; Files v. Davis, 118 F. 465; Railroad v. Taylor, 86 F. 168; Pacific Ry. Removal Cases, 115 U.S. 12; Baer v. Cooper, 6 Wall. (73 U.S.) 247. (b) A decision of a Federal court is a final adjudication, not only of all matters which were actually litigated, but also of all matters which might and should have been litigated therein. Embry v. Palmer, 107 U.S. 3; Mound City v. Castleman, 187 F. 921; Ins. Co. v. Hamilton Co., 117 F. 82; ...