City of St. Louis v. Laclede Power & Light Co.

• Decision Date: 10 June 1941
• Docket Number: 37387
• Parties: City of St. Louis, a Municipal Corporation, Appellant, v. Laclede Power & Light Company, a Corporation
• Court: Missouri Supreme Court

152 S.W.2d 23

347 Mo. 1066

City of St. Louis, a Municipal Corporation, Appellant, v. Laclede Power & Light Company, a Corporation

No. 37387

Supreme Court of Missouri

June 10, 1941

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

Edgar H. Wayman, Harold C. Hanke and Oliver Senti for appellant.

(1) The legislative intent in enacting Sections 2085 and 2095 Revised Code, St. Louis 1926, was to impose a charge of five per cent (5%) of the gross receipts of all persons supplying electricity in St. Louis. (a) The ordinance should be so construed as to effectuate the legislative intent and purpose. State ex rel. v. Sheehan, 269 Mo. 427, 190 S.W. 864; St. Louis v. Murta, 283 Mo. 77, 222 S.W 430; City of Clifton v. East Ridge Lawn Cemetery, 122 N. J. L. 115, 4 A.2d 79. (b) The dominant purpose rather than the incidental details will determine the intent. State v. Schwartzmann Service Co., 225 Mo.App. 577, 40 S.W.2d 479; State ex rel. Wabash Ry. Co. v. Shain, 341 Mo. 19, 106 S.W.2d 898. (2) The ordinance imposed a license or occupation tax rather than a rental charge. (a) A charge imposed by ordinance measured by the amount of business done, or the extent to which a privilege is enjoyed, is a license or occupation tax. Viquesney v. Kansas City, 305 Mo. 488, 266 S.W.2d 702; State ex rel. McClung v. Becker, 288 Mo. 614, 233 S.W. 54; St. Louis v. United Rys. Co., 263 Mo. 444, 174 S.W. 78; Kansas City v. Richardson, 90 Mo.App. 450; State ex rel. Asotsky v. Regan, 317 Mo. 1216, 298 S.W. 747; Ex parte Andrews, 18 S.W.2d 580. (b) The above statement is particularly true where the measure of the charge is a percentage of gross receipts. American Mfg. Co. v. St. Louis, 270 Mo. 41, 192 S.W. 402, affirmed 250 U.S. 459; Simmons Hardware Co. v. St. Louis, 192 S.W. 397; Massachusetts Bonding & Ins. Co. v. Chorn, 274 Mo.App. 15, 201 S.W. 1122; St. Louis v. Western Union Tel. Co., 148 U.S. 92, 37 L.Ed. 380. (3) The payments imposed by the ordinance in question, being in their nature a license tax, the defendant is not relieved from its obligation to pay the same even if it had a franchise from the State to use the streets. Springfield v. Smith, 138 Mo. 645, 40 S.W. 757; New Orleans v. Railroad, 40 La. Ann. 587, affirmed on writ of error in New Orleans City & Lake Railroad v. New Orleans, 143 U.S. 192, 36 L.Ed. 121; St. Louis v. United Rys. Co., 210 U.S. 266, 52 L.Ed. 1054; Memphis Gas Light Co. v. Taxing Dist. of Shelby County, 109 U.S. 398, 27 L.Ed. 976.

Fordyce, White, Mayne, Williams & Hartman and Jones, Hocker, Gladney & Grand for respondent

(1) Sections 2085 and 2095 of the Revised Code of St. Louis 1926 (Secs. 30, 40 of Ordinance 29723), do not impose a license tax but provide for the payment to the city of a rental charge by a person, firm or corporation making use of the streets, alleys and public places pursuant to the privilege conferred upon such person, firm or corporation upon acceptance of the terms of the ordinance in the manner therein provided. City of Carondelet v. Picot, 28 Mo. 125; State ex rel. Western Union Tel. Co. v. Markway, 341 Mo. 976; St. Louis v. Western Union Tel. Co., 148 U.S. 92, 37 L.Ed. 380; Hartford v. Connecticut Co., 140 A. 734, 107 Conn. 312; Plattsburg v. Peoples Tel. Co., 88 Mo.App. 306; Lancaster v. Briggs & Melvin, 118 Mo.App. 570; Mitchell v. Dakota Tel. Co., 25 S.D. 409, 127 N.W. 482; Spokane v. Spokane Gas & Fuel Co., 25 P.2d 1034; County of Tulare v. City of Dinuba, 188 Cal. 664, 206 P. 983; Des Moines v. Iowa Tel. Co., 181 Iowa 1297, 162 N.W. 329; Newport v. So. Covington Ry. Co., 89 Ky. 29, 11 S.W. 954; Lewis v. Nashville Gas & Heat Co., 40 S.W.2d 409, 162 Tenn. 269; San Francisco-Oakland Terminals Rys. Co. v. Alameda County, 225 P. 304, 66 Cal.App. 77; Nebraska Tel. Co. v. Lincoln, 82 Neb. 67, 117 N.W. 87, 28 L. R. A. (N. S.) 221; City and County of Denver v. Stenger, 295 F. 809. (2) Appellant cannot recover in this action because respondent has never filed the acceptance, agreement and bond required by the ordinance as a condition precedent to the granting of any privilege or the imposition of any obligation to pay thereunder. Secs. 2085-2095, Revised Code, St. Louis 1926; St. Louis v. Laclede Gas Light Co., 155 Mo. 1; City of Huron v. Dakota Central Tel. Co., 193 N.W. 673, 46 S.W. 452; Greenberg v. New York, 274 N.Y.S. 4; City of Pella v. Fowler, 244 N.W. 734, 215 Iowa 90; R. S. 1929, secs. 2962, 7683; R. S. 1939, secs. 3349, 7828; Charter of the City of St. Louis, Art. XXV, Chap. 9; Charter of the City of St. Louis, Art. XIX; Cincinnati ex rel. Ott v. Union Gas & Electric Co., 49 Ohio App. 166, 195 N.E. 488. (a) The use and occupancy of the streets of a city without compliance with its franchise ordinances (even if illegal by reason of the absence of a franchise from any other source) can create no liability to pay compensation therefor under the theory of an implied contract. New York v. Bee Line, Inc., 246 A.D. 28, 284 N.Y.S. 452, 271 N.Y. 595, 3 N.E.2d 202; New York v. Staten Island Rapid Transit Co., 252 A.D. 500, 299 N.Y.S. 480, 277 N.Y. 485, 14 N.E.2d 803; Greenberg v. New York, 274 N.Y.S. 4; R. S. 1929, secs. 2962, 7683, R. S. 1939, secs. 3349, 7828; Unangst v. Unangst, 240 N.W. 618; Lamson Consolidated Store Service Co. v. Weil, 8 N.Y.S. 336; Franck v. McGilvray, 107 N.W. 886, 144 Mich. 318; Landon v. Kansas City Gas Co., 300 F. 351; Charter of the City of St. Louis, Art. XXV, Chap. 9; Charter of the City of St. Louis, Art. XIX; Cincinnati ex rel. Ott v. Union Gas & Electric Co., 49 Ohio App. 166, 195 N.E. 488.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Plaintiff city in this suit seeks to collect from the defendant company five per cent of the company's gross receipts arising from its business of supplying electricity for light, heat and power within the city for the years 1929 to 1933 inclusive. The petition was in five counts. The total amount for which judgment was sought was $ 473,419.83. The trial court found for the defendant and plaintiff city appealed.

The pleadings were not questioned. We will state the principal facts upon which the case must be determined. In the year 1857 the State Legislature created and incorporated the Laclede Gas Light Company. In the year 1868 the Legislature amended the charter conferred on the gas company by the Act of 1857, so as to make the charter perpetual. The gas company operated under this charter until the year 1926, when it leased all its equipment to the defendant in this case, the Laclede Power & Light Company. About the year 1880 electricity began to push itself into the commercial field and was being utilized to some extent for power and light. In the year 1884 the city of St. Louis enacted an ordinance regulating the business of vending electricity. Section 10 of that ordinance reads as follows:

"'Sec 10. No person or persons, corporation or association, shall be entitled to any of the privileges conferred by this ordinance, except upon the following conditions: That said person or persons, corporation or association, before availing himself or itself of any of the rights or privileges granted by this ordinance, shall file with the city register his or its acceptance of all the terms of this ordinance, and agree therein that he or it will file with the comptroller of the city, on the first days of January and July of each year, a statement of his or its gross receipts from his or its business arising from supplying electricity for light or power for the six months next preceding such statement, which shall be sworn to by such person or persons, or the president or secretary of such corporation or association; and further agree that he or it will, at the time of filing the statement with the comptroller, pay into the city treasurer 2 1/2 per cent. on the amount of such gross receipts up to the year 1890, and 5 per cent. on the amount of such gross receipts thereafter.'"

That ordinance, modified in some respects not material to the issue in this case, is the basis of the city's claim. In the year 1889 plaintiff city entered into a contract with one Brown. This contract provided for the lighting of the streets of the city with electricity. The contract was, with the consent of the city, assigned to the Laclede Gas Light Company and was fulfilled by that company. The Laclede Gas Light Company continued in the field of selling electricity for both power and light until the year 1926, when, as above stated, it leased its facilities to the defendant company. The city filed a suit to collect five per cent of the gross receipts collected by the Laclede Gas Light Company under the Brown contract with the city. The city obtained a judgment in the trial court which was reversed by this court in the City of St. Louis v. Laclede Gaslight Company, 155 Mo. 1, 55 S.W. 1003. That case was decided on the theory that the city could not recover under the provisions of the ordinance above quoted, because neither Brown or the Laclede Gas Light Company had filed an acceptance of the provisions of the ordinance. Note what the court said in 55 S.W. 1003, l. c. 1007:

"But neither the defendant, nor its assignor, Brown, ever accepted or availed themselves of the privileges conferred by the general ordinance, which was a precedent condition to their liability on the contract for the per cent."

No further demand for the payment of the five per cent seems to have been made until the present suit was filed by the city. After the Ordinance of 1884 was enacted a number of persons and corporations filed with the city written acceptances of the ordinance and also a bond as required by the ordinance. The confusion resulting from such a wide open door policy prompted the city to change its ordinance....