General Installation Co. v. University City

Decision Date08 June 1964
Docket NumberNo. 50072,50072
Citation379 S.W.2d 601
PartiesGENERAL INSTALLATION COMPANY, a corporation, Respondent, v. UNIVERSITY CITY, a Municipal Corporation, Charles Henry, City Manager of the City of University City, Victor Ellman, Director of Finance, City of University City, and Peter Gaffney, Chief of Police, City of University City, Appellants.
CourtMissouri Supreme Court

John H. Lashly, Elihu M. Hyndman, Lashly, Lashly, Rava, Hyndman & Rutherford, St. Louis, for appellants.

Greensfelder, Hemker & Wiese, Mark R. Gale, St. Louis, for respondent.

STOCKARD, Commissioner.

Defendants have appealed from an adverse judgment in plaintiff's action for a declaratory judgment in which it requested and obtained a ruling that it is not required to pay, in addition to that previously paid, any business or occupation license fee or tax for the years 1958-1960 to the City of University City, Missouri, (hereafter sometimes referred to as the 'City'). The issues on this appeal require the construction of Section 71.610 (all statutory references are to RSMo 1959, V.A.M.S.), a revenue law of this state, and for that reason appellate jurisdiction is in this court. Long v. City of Independence, 360 Mo. 620, 229 S.W.2d 686.

Art VI, Sec. 19, Constitution of Missouri, provides that 'Any city having more than 10,000 inhabitants may frame and adopt a charter for its own government, consistent with and subject to the constitution and laws of the state, * * *.' Pursuant to this authority University City adopted such a charter on February 4, 1947, and it is what is generally referred to as a constitutional charter city. Section 71.610, in effect when the charter was adopted and still in effect provides that 'No municipal corporation in this state shall have the power to impose a license tax upon any business avocation, pursuit or calling, unless such business avocation, pursuit or calling is specially named as taxable in the charter of such municipal corporation, or unless such power be conferred by statute.' The City admits in its brief that 'such power' for a constitutional charter city has not been conferred by statute. Subsec. (20) of Sec. 17 of the City's charter provides that the city council shall have the power by ordinance to:

'License, tax, and regulate all businesses, occupations, professions, vocations, activities or things whatsoever set forth and enumerated by the statutes of this State now or hereafter applicable to cities of the First, Second, Third or Fourth Class, or of any population group, and which any such cities are now or may hereafter be permitted by law to license, tax or regulate.'

Pursuant to the above charter provision the City enacted by ordinance a Municipal Code, Chapter IX of which is entitled 'Licenses and Business Regulations.' Therein a license tax is imposed on numerous specially named businesses, occupations, vocations, and activities, one of which is 'Merchants.' Each merchant is required to secure a license each year and pay therefor a tax computed on the basis of 'the amount of gross sales made * * * during the preceding calendar year.'

Respondent is a corporation with its principal place of business in University City, and is engaged primarily in the business of 'construction contracting,' especially with respect to the construction and installation of piping, tubing, conduits, valves, regulators, insulation and air heating and cooling equipment in or about buildings and structures. In addition, it sells 'across the counter' at its place of business various items of building equipment and merchandise. Starting in 1948, and continuing each year thereafter, respondent applied to and obtained from the City a license to do business, and with its application therefor it reported as gross receipts, for purpose of computing the license tax, only those receipts from 'across the counter' sales of equipment and material. For example, in its application for a license for the year 1958 respondent reported gross receipts for the year 1957 in the amount of $23,989.06. It did not report additional gross receipts in the amount of $2,261,345.00 derived from its 'construction contracting' business. Prior to February 1, 1960 there was no ordinance purporting to impose a license tax upon the business or occupation of 'construction contracting' or 'contractor.' University City has demanded that respondent pay a license tax for the year 1958 based on the total gross receipts from its business as a construction contractor and from its business in making 'across the counter' sales of equipment and merchandise at retail. Similar demands have been made for the license tax for the years 1959, 1960 and 1961.

Respondent contends, and the trial court held, that University City has no power to impose a license tax or fee on respondent 'since the occupation of contracting or construction contracting is not specially named as taxable in the City's charter.' The City contends, on the other hand, that 'utilizing the legislative technique of incorporating the provisions of certain statutes of Missouri by reference is consistent wich Section 71.610.' It apparently is agreed, there being no contention to the contrary, that if the incorporation by reference technique is permissible, then the business of respondent as a 'construction contractor' is specially named as taxable in the referred to statutes, and that the description or identification of the statutes incorporated by reference is adequate.

A charter of a city adopted pursuant to Art. VI, Sec. 19, Constitution of Missouri, constitutes an act of legislation. 'This is because the sovereign people of the State by their Constitution have set over, transferred or granted to the people of the city a part of the State legislative power. The part so granted is the legislative power to frame and adopt a charter for local self-government. Hence it is said charter provisions ('consistent with and subject to the Constitution and laws of the state') have the force and effect of enactments of the legislature.' Giers Imp. Corp. v. Investment Service, 361 Mo. 504, 235 S.W.2d 355; Kansas City v. Frogge, 352 Mo. 233, 176 S.W.2d 498; McGhee v. Walsh, 249 Mo. 266, 155 S.W. 445. The power to tax is a governmental function inherent in the sovereign people of the state and may be exercised or delegated by the legislature subject to constitutional limitation. The delegation in this case to University City was by charter, but subject to constitutional limitations, Giers Imp. Corp. v. Investment Service, supra, and one of those limitations was that the legislative act constituting the charter was to be 'consistent with and subject to the * * * laws of the state,' including Section 71.610.

What was attempted to be done in this case was for the inhabitants of University City, in the exercise of their constitutionally delegated legislative power, to incorporate by reference into their legislative act the specific terms of another legislative act dealing with the same general subject. This is generally recognized in this state as well as in other states, in the absence of a constitutional inhibition, to constitute a valid method of legislation. State ex rel. Cairo Bridge Commission v. Mitchell, 352 Mo. 1136, 181 S.W.2d 496, certiorari denied 323 U.S. 772, 65 S.Ct. 131, 89 L.Ed. 617; State v. Stroemple, 355 Mo. 1147, 199 S.W.2d 913, certiorari denied Skiba v. Missouri, 331 U.S. 857, 67 S.Ct. 1746, 91 L.Ed. 1864; State v. Rogers, 253 Mo. 399, 161 S.W. 770; State ex rel. School District of Kansas City v. Lee, 334 Mo. 513, 66 S.W.2d 521, 523; State v. Lloyd, 320 Mo. 236, 7 S.W.2d 344, 346; State v. Peyton, 234 Mo. 517, 137 S.W. 979, 980; 82 C.J.S. Statutes Secs. 71-72; 50 Am.Jur. Statutes Secs. 36-39. This technique is not limited to the adoption by reference of previous statutes or acts of the same legislative body. For example, a federal statute may be enacted and made applicable in a state by adequate reference thereto in a state legislative act, 82 C.J.S. Statutes Sec. 70b, and in Freding v. Minneapolis, 177 Minn. 122, 224 N.W. 845, provisions of a statute were held to be embodied in and made a part of a municipal charter by reference. However, we are not how prepared to say or imply that one legislative body could incorporate by reference the provisions of a legislative act of another legislative body of which those to be bound thereby are not charged by law with constructive knowledge. In the absence of Section 71.610 we think it is clear that the inhabitants of University City, acting in their constitutionally delegated legislative capacity, could by reference validly and properly incorporate by reference into their legislative act, that is, the city charter, the terms and provisions of a statute of the State of Missouri dealing with the same general subject and of which they were each charged by law with constructive knowledge. The determining question, therefore, is whether the use of the incorporation by reference technique in the legislative process by the inhabitants of University City resulted in a failure of the charter as enacted to meet the requirement of Section 71.610 that in order for University City to have the power to impose a license tax on respondent, its business, avocation, pursuit or calling must be 'specially named as taxable in the charter.'

In State v. Lloyd, supra, this court said that when a statute, that is, a legislative act, adopts part of all of another statute by a specific and descriptive reference thereto 'the effect is the same as if the statute or part thereof adopted had been written into the adopting statute.' This is the rule in other jurisdictions where the incorporation by reference technique is approved. See for example, Sloss-Sheffield Steel & Iron Co. v. Smith, 175 Ala. 260, ...

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11 cases
  • City of Hannibal v. Winchester
    • United States
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    ...city acquires legislative authority to be exercised where not inconsistent with the constitution or general law. General Installation Co. v. University City, Mo., 379 S.W.2d 601. Section 20 also fixes, irrevocably, the mode by which charter cities may annex territory, and the legislature ha......
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