Holland Furnace Co. v. City of Chaffee

• Court: Missouri Court of Appeals
• Writing for the Court: McDOWELL
• Citation: Holland Furnace Co. v. City of Chaffee, 279 S.W.2d 63 (Mo. App. 1955)
• Decision Date: 02 May 1955
• Docket Number: No. 7323,7323
• Parties: HOLLAND FURNACE COMPANY, a corporation, Appellant, v. CITY OF CHAFFEE, Missouri, a municipal corporation, Respondent.

Page 63

279 S.W.2d 63

HOLLAND FURNACE COMPANY, a corporation, Appellant, v. CITY OF CHAFFEE, Missouri, a municipal corporation, Respondent.

No. 7323.

Springfield Court of Appeals, Missouri.

May 2, 1955.

R. P. Smith, Cape Girardeau, for appellant.

Frederick E. Steck, Chaffee, for respondent.

McDOWELL, Presiding Judge.

This is a declaratory judgment action to have determined the validity of an ordinance of the city of Chaffee and for injunctive relief. The cause was tried in the Circuit Court of Scott County, Missouri, and relief denied.

The petition alleged that plaintiff is engaged in the business of selling and installing furnaces, heating equipment and appliances; that on or about the 8th day of December, 1947, defendant passed and adopted Ordinance No. 652 levying a license tax upon various vocations, callings, occupations, trades or businesses within the city of Chaffee; that section 46 of said ordinance levied a license tax of $10.00 per year upon the business 'Heating and Air-Conditioning Installation', and that section 66 of said ordinance levied a license tax of $10.00 per year upon the business or occupation of 'Plumbers'; that plaintiff sold and attempted to install in said city various coal and gas-fired furnaces, heaters and equipment; that on or about August 10, 1953, the city adopted amending ordinance No. 720 repealing section 66 of ordinance No. 652 and enacted a new section in lieu thereof levying a license tax of $65.00 per year upon the business or occupation of 'Plumber and Gas Fitter'. This amending ordinance also repealed section 46 of ordinance No. 652.

The petition pleads that the amending ordinance is discriminatory, unreasonable and invalid for three reasons:

1. That it was passed and adopted for the express purpose of preventing plaintiff from transacting business in the city of Chaffee.

2. That the tax levied is unreasonable and confiscatory upon the business and occupation of plaintiff in that it levies a license tax upon plumbers and gas fitters greatly in excess of the license tax levied upon other similar business or occupation.

3. That the amending ordinance is ultra vires in that defendant had no powers to tax or license 'Gas Fitters'.

It was then alleged that plaintiff's agents and servants, installing furnaces and heating equipment in Chaffee, were arrested by city officials, taken to the city hall and informed that plaintiff would not be allowed to proceed with its work as aforesaid until it obtained a license as Plumber or Gas Fitter and paid the tax of $65 under said invalid ordinance. The petition prays for a judgment declaring plaintiff's rights under ordinance No. 652 as amended. It asked that the court declare the ordinance as amended illegal and void and that the defendant and its agents and employees be restrained from interfering with plaintiff's business under said ordinance as amended.

The judgment of the trial court is as follows:

'Now on this day in open Court come the parties by their respective attorneys and this cause heretofore taken under advisement is again taken up and the Court having heard and being fully advised in the premises finds that plaintiff's petition does not state evidence sufficient to entitle plaintiff to the relief prayed for and said petition is by the Court dismissed.'

The evidence is undisputed. It supports the allegations of the petition. Ordinance No. 652 adopted by the city of Chaffee December 8, 1947, levies a license tax upon various vocations, callings, occupations and trades under and by virtue of authority granted said city by the legislature of this State, Section 94.110 RSMo 1949, V.A.M.S. Chaffee is a city of the third class and has no charter excepting such rights as are granted by the legislature. Under this ordinance license taxes were provided on some 80 different businesses and occupations beginning with section 8 and ending with section 88, inclusive. Under the ordinance annual fees were required for the following businesses: Commercial Artists $10.00, Auction Sales $10.00, Automobile Garage $20.00, Automatic Vending Machines $10.00, Beauty Parlors $10.00, Blacksmith Shop $5.00, Coal Dealers $20.00, Cold Storage Houses and Food Locker Plants $15.00, Collecting Agencies $10.00, Dairies $15.00, Electricians $10.00, Flour and Feed Mills $10.00, Foundaries $10.00, Grain Buyers and Dealers $10.00, Ice Dealers $10.00, Ice Cream Manufacturers, Wholesale, $10.00, Junk Dealer $10.00, Machine Shops $15.00, Plumbers before amendment $10.00, Radio Repair Shops $10.00, Shoe Repair Shops $10.00, Tinner's Shop $10.00. This ordinance also had a general provision providing that business not specifically set out may be considered by the City Council at any regular meeting thereof and if the business is lawful and not contrary to public morals the City Council may authorize the clerk to issue a license therefor and at such fee as said council ordered.

Amending Ordinance No. 720 was introduced in evidence. This ordinance repealed said section 66 of ordinance No. 652 which levied a license tax of $10 per year on Plumbers and enacted a new section in lieu thereof levying a license tax on the business or occupation of Plumbers or Gas Fitters of $65 per year.

It is admitted by the parties to this action that the power to levy a license tax on Gas Fitters is not given by the statute and that this ordinance is void as to Gas Fitters as being ultra vires unless the power to levee a license tax on plumbers given by the statute is broad enough to cover gas fitters.

There is no dispute that the city stopped plaintiff from carrying on its occupation, as alleged in the petition, in Chaffee until plaintiff secured a license from the city clerk of Chaffee to operate as a Plumber or Gas Fitter and pay therefor $65.

Plaintiff does not pretend to be a plumber and the only work he desires to do in Chaffee is that which would be done as a gas fitter. Plaintiff admits that they used a licensed plumber in performing their work but plaintiff contends that a gas fitter is not a plumber and that the amending ordinance is ultra vires as to defendant.

This cause of action is brought under the declaratory judgment act. Section 527.020 RSMo 1949, V.A.M.S. provides:

'Any person * * * whose rights * * * are affected by a * * * municipal ordinance, * * * may have determined * * * validity arising under the * * * ordinance and obtain * * * a declaration of rights, * * * or other legal relations thereunder.'

From the record there is some doubt as to whether the trial court passed upon the merits of the action after the trial or whether he held the petition failed to state a cause of action. If the court passed upon the sufficiency of the petition to state a cause of action and found that it did not we hold the court was in error.

The law is that when one relies upon unreasonableness to avoid a city ordinance facts which render it unreasonable must be alleged. State ex rel. City of St. Louis v. Missouri Pac. R. Co., 262 Mo. 720, 734, 174 S.W. 73; City of St. Louis v. United Rys. Co. of St. Louis, 263 Mo. 387, 455, 174 S.W. 78, 94; 43 C.J. 310, Sec. 322, also page 576, Sec. 926; 62 C.J.S., Municipal Corporations, Secs. 207, 444, and cases cited therein.

An examination of the petition shows that it did plead facts which, if established, would constitute a cause of action. However, we believe that the trial court, by its judgment, found that plaintiff failed to show by the evidence its right to recover under the petition.

In passing upon the issues involved we will refer to appellant as plaintiff and respondent as defendant.

Under points and authorities plaintiff contends that the evidence was sufficient to justify the relief sought.

The sole issue involved in this case is the validity of amending ordinance No. 720 which amended the general ordinance No. 652 by raising the license tax required of a 'Plumber' or 'Gas Fitter' from $10 to $65 per year.

The petition pleaded three grounds showing the amending ordinance to be invalid. The first contention raised is that the amending ordinance was passed and adopted for the express purpose of preventing plaintiff from transacting business in Chaffee.

The evidence offered under this contention consisted first, of the written ordinance. The record also showed that the amending ordinance was adopted after plaintiff started its work installing heating equipment, etc., in Chaffee. In the amendment the words 'Gas Fitters' were added to the occupation of 'Plumber', reading 'Plumber or Gas Fitters', and the license fee was raised from $10.00 to $65.00 per annum. The license fee on all other businesses and occupations similar in nature to that of 'Plumber' or 'Gas Fitters' was left as in ordinance No. 652.

This evidence raises a suspicion that the only purpose of the amending ordinance was to reach the business in which plaintiff was engaged. On its face it looks as if the city was trying to prevent plaintiff's company from doing business in Chaffee. However, under the law we are not justified in holding the ordinance bad on mere subspicion. Under the recognized rule that the discretion of the municipal lawmaking body will not be interfered with by the courts unless it is clearly apparent that there has been an abuse of discretion and that the tax fixed is arbitrary, unreasonable, oppressive or prohibitive, we believe the trial court was justified in refusing relief under this assignment.

The second issue raised by the pleadings is that the amending ordinance is an unreasonable and confiscatory tax upon plaintiff's business.

In determining this question we review the case both upon the law and evidence as in suits of equitable nature. Section 510.310 RSMo 1949, V.A.M.S.; Scott v. Kempland, Mo.Sup., 264 S.W.2d 349, 355; Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289, 290.

In the City of Washington v. Reed, 229 Mo.App. 1195, 70 S.W.2d 121, 123, the following rule of law is stated:

'While it is the...