Edmonds v. St. Louis

• Decision Date: 25 September 1941
• Docket Number: No. 37391.,37391.
• Parties: F.V. EDMONDS, an individual doing business as EDMONDS'; CHARLES STEPHOS, an individual doing business as THE COFFEE POT; HENRY RUGGERI, an individual doing business as RUGGERI'S; VIC'S BAR'B'Q, INC., a Corporation, Appellants, v. CITY OF ST. LOUIS ET AL.
• Court: Missouri Supreme Court

156 S.W.2d 619

F.V. EDMONDS, an individual doing business as EDMONDS'; CHARLES STEPHOS, an individual doing business as THE COFFEE POT; HENRY RUGGERI, an individual doing business as RUGGERI'S; VIC'S BAR'B'Q, INC., a Corporation, Appellants, v. CITY OF ST. LOUIS ET AL.

No. 37391.

Supreme Court of Missouri.

Division Two, September 25, 1941.

Rehearing Denied, October 25, 1941.

Motion to Transfer to Banc Overruled, December 16, 1941.

Appeal from Circuit Court of City of St. Louis. — Hon. Ernest F. Oakley, Judge.

AFFIRMED.

David Baron and Raymond M. Freed for appellants.

(1) Ordinance No. 41614 is invalid because it in fact levies a property tax under the guise of a license tax. As a property tax said ordinance is invalid because the tax levied thereby is not uniform upon the same class of subjects, and due process of law is thereby denied. Art. X, Sec. 3, Mo. Const., Amend. 14, Sec. 1, U.S. Const.; Art. II, Sec. 30, Mo. Const.; St. Louis v. Weitzel, 130 Mo. 600; Ex parte Richardson, 148 Pac. 213; Seattle v. Denker, 108 Pac. 1086; Art. XX, Charter of City of St. Louis. (2) Ordinance No. 41614 is invalid because it levies a license tax upon merchants engaged in selling cigarettes in a manner contrary to and violative of Section 7596, Revised Statutes 1929 (Sec. 7744, R.S. 1939). Kansas City v. Case Threshing Machine Co., 87 S.W. (2d) 195; Kroger Grocery & Baking Co. v. St. Louis, 106 S.W. (2d) 435; Automobile Gasoline Co. v. St. Louis, 32 S.W. (2d) 281. (3) Ordinance No. 41614 is unconstitutional and void because it is arbitrary and discriminatory. It denies to these plaintiffs the equal protection of the laws and is not uniform upon the same class of subjects. Amend. 14, Sec. 1, U.S. Const.; Art. X, Sec. 3, Mo. Const.; State ex rel. v. Ashbrook, 154 Mo. 375; Ex parte Asotsky, 5 S.W. (2d) 22; Ploch v. St. Louis, 138 S.W. (2d) 1020; St. Louis v. Spiegel, 90 Mo. 587; St. Louis v. Spiegel, 75 Mo. 145; Nafziger Baking Co. v. Salisbury, 48 S.W. (2d) 563; City of Washington v. Reed, 70 S.W. (2d) 121; Danville v. Quaker Maid, 278 S.W. 98; City of Douglas v. South Georgia Grocery Co., 179 S.E. 700; City of Covington v. Dalheim, 102 S.W. 829; Read v. Graham, 102 S.W. 860; St. Helena v. Butterworth, 244 Pac. 357; Bellingrath v. Town of Georgiana, 121 So. 458. (4) Ordinance No. 41614 is unconstitutional and void because it is a special and local law. Art. IV, Sec. 53, subsecs. 2, 26, 32, Mo. Const.; Amend. 14, Sec. 1, U.S. Const.; Springfield v. Smith, 19 S.W. (2d) 1. (5) Ordinance No. 41614, in taxing only certain slot machines and excluding others is violative of Article IX, Sections 23 and 25 of the Constitution of Missouri, the charter of the City of St. Louis, and Section 7440, Revised Statutes 1939. Kansas City v. Grush, 151 Mo. 128; Keane v. Strodtman, 18 S.W. (2d) 896; Siemens v. Shreeve, 296 S.W. 415. (6) Plaintiffs, having already obtained a license under ordinance No. 41575 for the privilege of selling cigarettes at retail, cannot be again taxed by ordinance No. 41614 as a condition precedent to the enjoyment of that privilege. Art. X, Sec. 3, Mo. Const.; Art. II, Sec. 30, Mo. Const.; Amend. 14, Sec. 1, U.S. Const.; State ex rel. v. Railroads, 196 Mo. 523; State ex rel. v. West Cabanne Imp. Assn., 213 S.W. 25; City of Albany v. Newark Shoe Stores Co., 110 S.E. 283; Tinley v. City Council, 189 S.E. 413. (7) Ordinance No. 41614 is void for uncertainty in that by the terms of said ordinance it is not clear whether the owner of the slot machine, or its bailee or lessee is required to purchase said license, and further it is not clear who, in the event said ordinance be violated, is subject to prosecution for said violation. Amend. 14, Sec. 1, U.S. Const.; Art. II, Sec. 30, Mo. Const.; Sheppard v. Giebel, 110 S.W. (2d) 166.

E.H. Wayman, Francis Finley and Carl R. O'Connor for respondents.

(1) Ordinance No. 41614 is a license, not a property tax, and is not invalid for want of uniformity or as denial of due process of law. Ordinance 41614, City of St. Louis; Drainage Dist. No. 23 v. Hetlage, 102 S.W. (2d) 702, 231 Mo. App. 355; Holder v. Elms Hotel Co., 92 S.W. (2d) 620, 338 Mo. 857; Ex parte Andrews, 23 S.W. (2d) 95, 324 Mo. 254; Rockley v. Stoutamire, 180 So. 375; Dunlap v. State, 16 Ala. App. 440, 78 So. 638; Larson v. Rockford, 21 N.E. (2d) 396, 371 Ill. 441; Carolina Music Co. v. Query, 6 S.E. (2d) 473; 111 A.L.R. 755; Thompson v. Wiseman, 75 S.W. (2d) 393, 189 Ark. 852. (2) Ordinance No. 41614 does not levy a license tax upon merchants and is not violative of Section 7596, Revised Statutes 1929 (Sec. 7744, R.S. 1939). Rockley v. Stoutamire, 180 So. 375; Dunlap v. State, 16 Ala. App. 440, 78 So. 638. (3) Ordinance No. 41614 is not arbitrary and discriminating and does not deny to plaintiffs the equal protection of the laws. It is uniform upon the same class of subjects. Rockley v. Stoutamire, 180 So. 375; Dunlap v. State, 78 So. 638, 16 Ala. App. 440; Carolina Music Co. v. Query, 6 S.E. (2d) 473; Ploch v. St. Louis, 138 S.W. (2d) 1020, 345 Mo. 1069; Illinois Cigarette Serv. Co. v. Chicago, 89 Fed. (2d) 610, 111 A.L.R. 749; Brennan v. Seattle, 276 Pac. 886, 151 Wash. 665. (4) Ordinance No. 41614 is not a special or local law prohibited by the Constitution of Missouri. Ploch v. St. Louis, 138 S.W. (2d) 1020, 345 Mo. 1069; Hull v. Baumann, 131 S.W. (2d) 721, 345 Mo. 159; Madden v. Kentucky, 309 U.S. 83, 84 L. Ed. 590. (5) Ordinance No. 41614 is not in violation of Article IX, Sections 23 and 25, of the Missouri Constitution, the charter of the City of St. Louis, nor Section 7440, Revised Statutes 1939. Carolina Music Co. v. Query, 6 S.E. (2d) 473; Larson v. Rockford, 21 N.E. (2d) 396, 371 Ill. 441; Village of Beverly Hills v. Schulte, 130 S.W. (2d) 532, 344 Mo. 1098; Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W. (2d) 281; St. Charles ex rel. Palmer v. Schulte, 305 Mo. 124, 264 S.W. 654; Ploch v. St. Louis, 138 S.W. (2d) 1020, 345 Mo. 1069; Viquesney v. Kansas City, 266 S.W. 700, 305 Mo. 488; Ex parte Asotsky, 5 S.W. (2d) 22, 319 Mo. 810. (6) The privilege of selling cigarettes as a merchant under ordinance No. 41575 and the privilege of operating or permitting slot machines to be operated are two distinct privileges, and each privilege may lawfully be licensed. St. Louis v. Weitzel, 130 Mo. 600, 31 S.W. 1045; Ex part Andrews, 23 S.W. (2d) 95. (7) Ordinance No. 41614 is very definite and certain as to who is required to obtain the license and is not void for uncertainty. St. Louis v. Murta, 283 Mo. 77, 222 S.W. 430; State ex rel. v. State Board of Health, 65 S.W. (2d) 943, 334 Mo. 220.

ELLISON, J.

The plaintiff-appellants, who operate restaurants in the City of St. Louis, brought a class injunction suit in the circuit court of that city on November 15, 1939, against the defendants-respondents, to restrain them from enforcing Ordinance 71614, approved June 20, 1939, on the ground that it contravenes Sec. 1 of the Fourteenth Amendment, Constitution of the United States; six sections of the Missouri Constitution, hereinafter specified; and Secs. 7440 and 7744, R.S. 1939, Secs. 7287, 7596, Mo. Stat. Ann., pp. 5871, 6012. The ordinance levies a license tax of a flat sum per annum on automatic slot machines set in motion by the deposit of a coin or slug in any slot or receptacle attached thereto, and used for the purpose of delivering goods, wares or merchandise. The appellants use such machines in their restaurants for the sale of package cigarettes, having obtained them from the owners by lease or bailment. The circuit court sustained a demurrer to their petition; they refused to plead further; judgment went against them; and they have appealed.

[1] The first four assignments contend that the sustention of the demurrer to the petition was erroneous because it stated a case of discriminatory taxation in violation of the Fourteenth Amendment, and Sec. 30, Art. II, and Sec. 3, Art. X of the Missouri Constitution. This is on the theory that appellants are also subjected to a license fee of $1 and an occupation tax of $1 per thousand on cigarettes sold, offered or displayed for sale at retail, by another ordinance, No. 41575, approved June 8, 1939, twelve days before the approval of Ordinance 71614, supra. Ordinance 41575 is set out in the petition and was sustained by this court in Ploch v. St. Louis, 345 Mo. 1069, 138 S.W. (2d) 1020. But by its own terms it expired on July 1, 1941. Insofar as appellants seek annulment of Ordinance 71614 and injunction against its enforcement because it superimposes taxes on those exacted by Ordinance 41575, the case has become moot, because the latter ordinance no longer exists. [State ex rel. St. Louis v. Hay (Mo. banc), 153 S.W. (2d) 837.]

[2] Most of the other assignments may be grouped and discussed together. But before proceeding to that we take up three which must be disposed of separately. Ordinance 71614 is based on Article XX of the St. Louis Charter adopted in 1914. The latter provides that "Licenses may be imposed by ordinance upon ..." Following that are listed "professions" and a large number of specified businesses, occupations and services. In a few instances it merely names physical objects, such as private and public vehicles, private and public automobiles, street railway cars and bicycles. Of those thus named one is "slot machines." The four businesses immediately preceding are: Theaters, moving pictures, exhibitions, circuses; and the five immediately following are: dance halls, billiard and pool rooms, museums, shooting galleries, bowling alleys. Construing the Article, appellants say that in every instance, with the exception of the one classification "slot machines," it authorizes a tax on the privilege of engaging in the business or doing the thing named, or of using the object named on the public streets. As to slot machines, they assert the Article merely lists them and is devoid of implication that the tax is on the privilege of use. T...