Ex parte Andrews

• Decision Date: 30 December 1929
• Docket Number: 29890
• Citation: Ex parte Andrews, 23 S.W.2d 95, 324 Mo. 254 (Mo. 1929)
• Parties: Ex parte Charles Andrews, Petitioner
• Court: Missouri Supreme Court

23 S.W.2d 95

324 Mo. 254

Ex parte Charles Andrews, Petitioner

No. 29890

Supreme Court of Missouri

December 30, 1929

Petitioner remanded.

Tatlow & Schwab for petitioner.

The statutes prohibit any municipality from levying on motor vehicles a license tax exceeding one-third of the aggregate amount of the State registration fee.Laws 1925, p. 228, sec 15.The intent of the Legislature for the phrase "license tax" as used in Laws 1921andLaws 1925 to include an occupation tax, is clearly shown by the context of the chapters in which said laws are respectively included.Laws 1925, p. 283, sec. 2;Laws 1925, p. 288, sec. 15;Laws 1921, Ex. Sess., p. 77, sec. 3;Laws 1921, Ex. Sess., p. 81sec. 5.The language used in the 1921enactment, without the proviso clause, referred to and included an occupation tax as well as the ordinary license tax.Ex parte Tarling, 241 S.W. 929.The prohibition against any municipality levying a license or occupation tax on motor vehicles in excess of one-third of the total tax assessed by the State is plain.The court would not be justified in substituting an opposite construction.Henry, etc., Co. v. Evans,97 Mo. 55;Kerr v. Columbia,136 Mo.App. 329;Dworkin v. Ins. Co.,285 Mo. 342;United States v. Ry. Co.,49 S.Ct. 183;United States v. Wiltberger,5 Wheat. 76, 5 L.Ed. 37;United States v. Fisher,2 Cranch. 386, 2 L.Ed. 304;Lake County v. Rawlins,130 U.S. 662, 32 L.Ed. 1060;Caminetti v. United States,242 U.S. 470, 61 L.Ed. 442;Ex parte Republic Nat. Bank, 49 S.Ct. 43;State ex rel. v. Wilder,206 Mo. 541;United States v. Railroad,157 F. 321, 15 L. R. A. (N. S.) 167, 13 Ann. C. 893.Where the statute is plain the court cannot resort to such considerations as the consequences or the public policy involved.Lauche v. Reis,274 S.W. 827.Generally the purpose of a proviso is not to enlarge or extend the section of which it is a part, but rather to put a limitation or a restraint upon the language which the Legislature has employed.Georgia R. & Banking Co. v. Smith,32 L.Ed. 377.Where, as in this case, the tax is clearly imposed for the purpose of obtaining revenue, there can be no valid distinction between a license tax and occupation tax.Viquesney v. Kansas City,266 S.W. 700;25 Cyc. 609;12 C. J. 906;Kansas City v. Grush,151 Mo. 134;St. Charles v. Elsner,155 Mo. 680;State ex rel. McClung v. Becker,288 Mo. 614;State v. Broeker, 11 S.W.2d 81.

E. A. Barbour, Jr., for respondent.

The statutes have provided that municipalities may impose occupation taxes on the business of transporting passengers, freight and merchandise for hire carried on within their limits and may measure such taxes by the number of motor vehicles engaged in such transporting.Laws 1921, Ex. Sess., p. 99, sec. 24, par. c. The city may levy and collect an occupation tax on operators of taxicabs for hire in excess of one-half of the registration fee collected by the State provided by the Law.Laws 1921, Ex. Sess., p. 99, Sec. 24, par. c. Ex parte Andrews, 18 S.W.2d 580.

Ragland, J.All concur, except Walker, J., absent.

OPINION

RAGLAND

Habeas Corpus.Petitioner was arrested on a charge that he had violated an ordinance of the city of Springfield and is now constructively in the custody of the chief of police of that City, where he is held pending a trial.The ordinance he is charged with having violated, so far as pertinent, is as follows:

"Sec. 1.No person, firm or corporation shall engage in the business of transporting passengers for hire within the limits of Springfield, Missouri, without first obtaining from said city a license to carry on and engage in said occupation, for which license a charge shall be made as follows:

"$ 50 per year and $ 25 for six months, for each and every motor vehicle having a seating capacity of not more than seven passengers, and used in the carrying on of said business of transporting passengers for hire.

"Sec. 4.Any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, etc."

Petitioner is a resident of Springfield where he is engaged in the taxicab business: he owns and operates in his business of transporting passengers for hire within the limits of Springfield six motor vehicles: none of these vehicles has a seating capacity for more than seven passengers: he is required to pay to the State as a registration fee for each of said vehicles the sum of $ 10.50.

The petitioner contends that the ordinance just referred to is in conflict with a statute and therefore void.

The statute in question, in so far as it has a bearing on petitioner's contention, is found in Sub-division (c) of Section 24 of the Motor Vehicle Act passed in 1921, and is as follows:

"(c) Municipalities may, by ordinance, levy and collect license taxes from the owners of and dealers in motor vehicles and trailers, residing in such municipalities, and require the display of license plates (except that plates shall not be required in cities having a population of more than seventy-five thousand) but such license taxes shall not exceed one-half of the registration fee provided for herein, including the cost of plate and notarial fee.No such municipal license tax shall be collected from a resident of such municipalities for motor vehicles used exclusively outside of such municipalities, . . . provided, however, that municipalities may impose occupation taxes on the business of transporting passengers, freight and merchandise for hire carried on within their limits, and may measure such taxes by the number of motor vehicles engaged in such transportation; . . ."[Laws 1921, 1st Ex. Sess., p. 100.]

There was enacted at the general election held in 1924, through the Initiative, a statute which had for its principal objective the providing of additional funds for the completion of the State Highway system.Section 15 of that act provided for increases in the schedule of fees for the registration of motor vehicles.The section concluded as follows:

"License taxes levied on motor vehicles by municipalities of this State shall not exceed one-third (1/3) of the aggregate amount of the State registration fee as increased by this act including the cost of plate and notarial fee."[Laws 1925, p. 288.]

The measure did not purport to be an amendatory or repealing act but it did provide that all laws or parts of laws in conflict with it was thereby repealed.Its only effect therefore on said Sub-division (c), above quoted, was to strike out "one-half"...