Fischbach Brewing Co. v. City of St. Louis

• Decision Date: 02 June 1936
• Citation: 95 S.W.2d 335,231 Mo.App. 793
• Parties: FISHBACH BREWING COMPANY, APPELLANT, v. CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, HARRY SCULLIN, EXCISE COMMISSIONER, OLIVER G. CHAPMAN, LICENSE COLLECTOR, RESPONDENTS
• Court: Missouri Court of Appeals

95 S.W.2d 335

231 Mo.App. 793

FISHBACH BREWING COMPANY, APPELLANT, v. CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, HARRY SCULLIN, EXCISE COMMISSIONER, OLIVER G. CHAPMAN, LICENSE COLLECTOR, RESPONDENTS

Court of Appeals of Missouri, St. Louis

June 2, 1936

Motion for Rehearing Overruled June 30, 1936.

Appeal from Circuit Court of City of St. Louis.--Hon. O'Neill Ryan, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

William Waye, Jr. and Allen, Moser & Marsalek for appellant.

The trial court erred in sustaining defendants' demurrer to plaintiff's petition. (1) Under the provisions of Sections 20 to 25, inclusive, of Article IX of the Constitution of Missouri, the Charter of the City of St Louis and all ordinances enacted pursuant thereto must at all times be in harmony with and subject to the Constitution and laws of the State of Missouri. State ex rel. Knese v Kinsey, 314 Mo. 80; In re East Bottoms Drainage Dist., 305 Mo. 577, l. c. 587; City of St. Louis v Dreisoerner, 243 Mo. 217; St. Louis v. Dorr, 145 Mo. 466. (2) Since plaintiff is a manufacturer of intoxicating liquor, that is, of beer with an alcoholic content in excess of 3.2 per cent by weight, conducting its manufacturing operations wholly within the City of St Charles, Missouri, and merely disposes of a portion of its manufactured product to retailers in the defendant City of St. Louis for resale, to whom it delivers the same by truck in quantities of not less than one (1) gallon, the defendant City of St. Louis has no authority to impose upon plaintiff any license fee, tax or charge for the privilege of so transporting its beer into that city and there selling and delivering it to retailers. Insofar as the ordinance referred to in the petition, by section 10 thereof or otherwise purports to authorize the defendant city to exact any license fee whatsoever from any manufacturer not located within the limits of said city, for the privilege alone of entering said city and selling and delivering a portion of its manufactured product to retailers therein, said ordinance is out of harmony and in direct conflict with the Liquor Control Act of this State, passed by the Fifty-seventh General Assembly in special session and in force at the time of the enactment of said ordinance, which limited the right of incorporated cities to exact license fees or taxes for the manufacture or sale of intoxicating liquors by providing that such cities "may charge for licenses issued to manufacturers, distillers, brewers, wholesalers and retailers of all intoxicating liquor, within their limits." Laws of Missouri, Fifty-Seventh Gen. Assem., Ex. Ses. 1933-1934, pp. 77-95, Sec. 25 (p. 88). (a) By specifically providing, by said section 25 of said Liquor Control Act passed by the 57th General Assembly, that cities may charge for licenses issued to "manufacturers, distillers, brewers, wholesalers and retailers" of intoxicating liquor "within their limits" the Legislature necessarily excluded and withheld from every municipality of the State the right to exact license fees, charges or taxes for the manufacture or sale of intoxicating liquor, from any person or corporation not embraced within any of the classes there specifically enumerated, or not located within the corporate limits of such municipality, under the familiar rule of statutory construction, expressio unius est exclusio alterius. State ex inf. Conklin v. Sweeny, 270 Mo. 688, l. c. 692. (b) Plaintiff corporation is a manufacturer and a brewer, but it is not a manufacturer or brewer within the limits of the City of St. Louis. Obviously, plaintiff is not a distiller or a retailer. Neither may plaintiff, by reason of selling and delivering its manufactured product to retailers in the defendant city, be classified as a wholesaler and taxed as such. A wholesaler is a species of merchant, a dealer, a mere trafficker; one who buys and resells to thereby earn a profit. Great A. & P. Tea Co. v. Cream of Wheat Co., 227 F. 46, l. c. 47; City of Ozark v. Hammond, 329 Mo. 1118, 1122, 1123; Viquiesney v. Kansas City, 305 Mo. 488, l. c. 498; St. Joseph v. Dye, 72 Mo.App. 214. "The marked distinction between a manufacturer and a merchant is that the merchant, or dealer, sells to earn a profit, and the manufacturer sells to take the profit already earned. He must buy the materials out of which to make his finished product and he must sell the product of his factory after it is finished. But such dealings are not his occupation." City of Ozark v. Hammond, 329 Mo. 1118, l. c. 1122-1123. The contention of defendants that plaintiff, in selling its manufactured product to retailers in the defendant city, is "wholesaling intoxicating liquor" within the limits of said city, and hence may be taxed as a wholesaler, is quite untenable. Section 25 of said Liquor Control Act does not authorize a municipality to levy a license tax upon any person who may sell any intoxicating liquor within its limits, but only upon one falling within one of the classes enumerated in the statute and who is located within such city. The ordinance, by its terms, does not follow the statute, but is broader than the statute. And to the extent that it is broader than the statute it is null and void. Since plaintiff can be classified only as a manufacturer, and is not within the limits of the City of St. Louis, the city is wholly without authority to charge plaintiff a license fee for the mere privilege of entering the city and there selling and delivering its manufactured products to retailers. City of Ozark v. Hammond, supra, 329 Mo. 1118, l. c. 1122-1123; City of St. Clair v. George, 225 Mo.App. 30; City of St. Charles v. Nolle, 51 Mo. 122; City of Argenta v. Keath (Ark.), 197 S.W. 686; City of Cairo v. Adams Express Co., 54 Ill.App. 87; Siemers v. Shreeve, 296 S.W., l. c. 416. (d) Defendants construe the words "within their limits," in Section 25 of the Liquor Control Act of the Fifty-seventh General Assembly in special session, as meaning that a manufacturer need not be located within the limits of a city in order to be subject to a municipal tax under said section, but is within the limits of such city, within the meaning of the act, if he enters the same and there sells and delivers any of his manufactured product; that he then becomes a "wholesaler" within the limits of such city. That such was not the legislative intent in enacting said section 25 appears not only from the language of the section as originally enacted, but from the fact that the Fifty-eighth General Assembly, by committee substitute for Senate Bill No. 30, approved May 9, 1935, amended said section 25 by inserting the word "located" between the word "liquor" and the word "within," making that portion of said section here involved read as follows: "The Board of Aldermen, City Council or other proper authorities of incorporated cities may charge for licenses issued to manufacturers, distillers, brewers, wholesalers and retailers of all intoxicating liquor located within their limits.' Such insertion of the word "located" in said section constituted a legislative construction of the term "within their limits," as used in the section as originally enacted. Obviously the purpose thereof was to make it clear that it was the legislative intent in enacting the original section that a city should not be authorized to exact any license fee from a manufacturer or wholesaler having no place of manufacture or established place of business in said city, but who might transport intoxicating liquor into said city and there sell and deliver it to retailers for resale therein. 2 Sutherland on Stat. Con. (2 Ed.), p. 777, Sec. 401; Hugo v. Miller, 50 Minn. 105, 52 N.W. 381, l. c. 383; 25 R. C. L., p. 1064, Sec. 288; The United States v. Freeman, 3 How. 556, 564, 565, 11 L.Ed. 724, 728. (e) The construction of said section 25, for which defendants contend, would lead to harsh, unreasonable, absurd and confiscatory results. It would mean that plaintiff, who, as the petition alleges and the demurrer admits, sells and delivers its manufactured product to retailers in a large number of cities in this State, would not only be required to pay, as the petition shows it does, its fee for a state license, its state taxes computed upon the volume of its business done, its manufacturer's license fee to the City of St. Charles, but could be charged an annual license fee by every municipality into which it may haul and deliver to retailers any of its beer whatsoever. The intention will not be imputed to the Legislature to permit the imposition of such a burden upon brewers in this State. A cardinal rule of statutory construction, applying here with much vigor, is that in construing a statute with the object of ascertaining and giving effect to the legislative intent evidenced thereby, the statute will, if possible, be given a reasonable, sensible construction, and one that will avoid injustice, oppression or absurd consequences. Rutter v. Carothers, 223 Mo. 631, 643; State ex rel. Emmons v. Farmer, 271 Mo. 306, 316; Stack v. Baking Co., 283 Mo. 396, 411; State ex rel. Taylor v. Daues, 313 Mo. 200, 211. The license which defendants seek to have plaintiff take out is essentially a merchant's license, within the meaning and intendment of the Liquor Control Act. And insofar as the ordinance purports to require one in plaintiff's situation to take out such a license, it is null and void as being directly contrary to the legislative policy of this State as evidenced by the last proviso to Section 21 of said Liquor Control Act (Laws 1933-1934, 57th Gen. Assem., Ex. Ses., p. 84), which has not been repealed or amended, and which is as follows: "Provided further, that manufacturers and blenders of intoxicating liquors...