John Bardenheier Wine & Liquor Co. v. City of St. Louis

• Decision Date: 09 January 1940
• Docket Number: 36516
• Parties: John Bardenheier Wine & Liquor Co., a Corporation; Conrad, Inc., a Corporation; Dexheimer-Becker & Co. a Corporation; Peter Hauptmann Tobacco Co., Doing Business as Peter Hauptmann Co., a Corporation; Louis Hilfer Co., a Corporation; Import Distributing Co., a Corporation; Irving Liquor Distributing Co., a Corporation; Meyer Brothers Drug Co., a Corporation; McKesson-Robbins, Inc., a Corporation; Paramount Liquor Co., a Corporation; Park & Tilford Import Corp. of Mo., a Corporation; Dr. Pepper Bottling Co. of St. Louis, a Corporation; St. Louis Crystal Water & Soda Co., a Corporation; St. Louis Wholesale Drug Co., Doing Business as St. Louis Wholesale Liquor Co., a Corporation; Security Warehouse Co., Inc., a Corporation; J. Simon & Sons, Inc., a Corporation; Simpson & Barker, Inc., a Corporation; Triangle Wine & Liquor Co., a Corporation; Waldorf Corp., a Corporation, and Mississippi Valley Liquor Co., a Corporation, Appellants, v. City of St. Louis, a Municipal Corporation; Bernard F. Dickmann, Mayor of the City of St. Louis; Edgar H. Wayman, City Counselor, City of St. Louis; Lawrence McDaniel, Excise Commissioner of the City of St. Louis and George W. Chadsey, Director of the Department of Public Safety
• Court: Missouri Supreme Court

135 S.W.2d 345

345 Mo. 637

John Bardenheier Wine & Liquor Co., a Corporation; Conrad, Inc., a Corporation; Dexheimer-Becker & Co. a Corporation; Peter Hauptmann Tobacco Co., Doing Business as Peter Hauptmann Co., a Corporation; Louis Hilfer Co., a Corporation; Import Distributing Co., a Corporation; Irving Liquor Distributing Co., a Corporation; Meyer Brothers Drug Co., a Corporation; McKesson-Robbins, Inc., a Corporation; Paramount Liquor Co., a Corporation; Park & Tilford Import Corp. of Mo., a Corporation; Dr. Pepper Bottling Co. of St. Louis, a Corporation; St. Louis Crystal Water & Soda Co., a Corporation; St. Louis Wholesale Drug Co., Doing Business as St. Louis Wholesale Liquor Co., a Corporation; Security Warehouse Co., Inc., a Corporation; J. Simon & Sons, Inc., a Corporation; Simpson & Barker, Inc., a Corporation; Triangle Wine & Liquor Co., a Corporation; Waldorf Corp., a Corporation, and Mississippi Valley Liquor Co., a Corporation, Appellants, v. City of St. Louis, a Municipal Corporation; Bernard F. Dickmann, Mayor of the City of St. Louis; Edgar H. Wayman, City Counselor, City of St. Louis; Lawrence McDaniel, Excise Commissioner of the City of St. Louis and George W. Chadsey, Director of the Department of Public Safety

No. 36516

Supreme Court of Missouri

January 9, 1940

Appeal from Circuit Court of City of St. Louis; Hon. William S Conner, Judge.

Reversed and remanded (with directions).

Fred M. Switzer, Jr., for appellants.

(1) This court has jurisdiction of this appeal because of the amount involved and because of the constitutional questions at issue. Aufderheide v. Polar Wave Ice Co., 319 Mo 371, 4 S.W.2d 776; St. Charles v. Elsner, 73 Mo.App 517; Butler v. Board of Education, 16 S.W.2d 44. (2) The tax imposed by Section 10-A, Ordinance No. 40630, as amended, violates Section 3, Article X of the Constitution of Missouri. State v. Bengsch, 170 Mo. 81, 70 S.W. 710; Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700; Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22; State ex rel. Anheuser-Busch v. Ebey, 170 Mo. 497; State ex rel. People's Motor Bus Co. v. Blaine, 58 S.W.2d 975, 332 Mo. 582; State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 55 S.W. 627; State ex rel. Bixby v. City, 241 Mo. 231, 145 S.W. 801; Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159; Dart v. Bagley, 110 Mo. 51, 19 S.W. 311. (3) The tax imposed by Section 10-A, Ordinance No. 40630, as amended, violates Section 30, Article II of the Missouri Constitution, and Section 1 of the Fourteenth Amendment to the Constitution of the United States. Campbell Baking Co. v. Harrisonville, 19 F.2d 159; Campbell Baking Co. v. Nashville, 31 F.2d 466; Woco Pep Co. v. Montgomery, 213 Ala. 452, 105 219; Marshalltown v. Blum, 58 Iowa 184, 12 N.W. 266; Welton v. State of Mo., 91 U.S. 275; Ex parte Irish, 122 Kan. 33, 250 P. 1056; In re Cole's Est., 253 N.Y.S. 657, 142 Misc. 18; Hart Refineries v. Harmon, 278 U.S. 499, 78 L.E. 475. (4) The city of St. Louis does not have the power to impose a gallonage of excise tax on intoxicating liquors. Sec. 25, Liquor Control Act, approved April 10, 1937, Laws 1935, p. 276; Sec. 7289, R. S. 1929; Sec. 21, Liquor Control Act, approved April 10, 1937, Laws 1937, p. 529; Black on Intoxicating Liquor, sec. 230, p. 277; Kniper v. Louisville, 7 Bush, 599; State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W.2d 713; Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 415; Kansas City v. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195; Ex parte Tarling, 241 S.W. 929. (5) The tax imposed by Section 10-A, Ordinance No. 41215, and Ordinance No. 41277 is in violation of Sections 47 and 48 of the State Sales Tax Act, approved June 7, 1937, Laws 1937, page 568. State ex rel. People's Motor Bus Co. v. Blaine, 332 Mo. 582, 58 S.W.2d 975. (6) The tax imposed by Section 10-A, Ordinances Nos. 40630, 40744, 41215 and 41277 is invalid by reason of the defective title of the ordinances. Sec. 13, Art. IV, Charter, City of St. Louis; State ex rel. Belt v. St. Louis, 61 S.W. 658, 161 Mo. 371; St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 89 S.W. 617; St. Louis v. Breuer, 223 S.W. 108; State v. Bengsch, 170 Mo. 81, 70 S.W. 710.

Edgar H. Wayman, Oliver Senti and Andrew J. Reis for respondents.

(1) Counties and municipalities in this State are authorized by the Liquor Control Act to impose license fees upon the sale of spirituous liquors and wines, and to measure such fees by the quantity of such liquors sold. Sec. 21, Liquor Control Act, Laws 1937, p. 529; Sec. 21-A-1, Liquor Control Act, Laws 1937, p. 531; State v. Parker Distilling Co., 236 Mo. 217; Sec. 25, Liquor Control Act, Laws 1935, p. 276; Sec. 21-A-1, Liquor Control Act, Laws Ex. Sess. 1933, p. 87; Secs. 22, 24, 25, Liquor Control Act, Laws Ex. Sess. 1933, pp. 87, 88. (2) Section 10-A of the city ordinance is in harmony with the Liquor Control Act and is a valid enactment of a license ordinance prescribing license charges for the privilege of selling spirituous liquors and wines and basing such charges upon the gallons of such liquor sold. Sec. 21-A-1, Liquor Control Act, Laws 1937, p. 529. (3) Section 10-A does not violate the provisions of Section 3 of Article X, nor of Section 30 of Article II of the Missouri Constitution, nor of Section 1 of the Fourteenth Amendment of the Constitution of the United States. Fischbach Brewing Co. v. St. Louis, 231 Mo.App. 793, 95 S.W.2d 335; Robbins v. Taxing Dist., 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694; Sec. 25, Liquor Control Act, Laws 1935, p. 276; 45 C. J., p. 546; State Board of Equalization v. Young's Market, 229 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38; State v. Parker Distilling Co., 236 Mo. 219; Aurora v. McGannon, 138 Mo. 38, 39 S.W. 469; St. Charles ex rel. v. Schulte, 305 Mo. 124, 264 S.W. 654; Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 287. (4) The title of the ordinance is not defective. State v. Parker Distilling Co., 236 Mo. 217. (5) The tax imposed by Section 10-A of the ordinance does not violate Sections 47 and 48 of the State Sales Tax Act. State ex rel. Monier v. Crawford, 303 Mo. 652, 262 S.W. 341.

Nagel, Kirby, Orrick & Shepley for Missouri Brewers Association, amicus curiae.

The city of St. Louis exhausted its power to regulate, control and tax intoxicating liquors under the provisions of the Liquor Control Act of Missouri by the enactment of Section 10 of Ordinance No. 40630, as amended; therefore the tax, fee or charge imposed by Section 10-A of Ordinance No. 40630, as amended, violates the provisions of the Liquor Control Act of Missouri, and in particular exceeds the authority granted to the city of St. Louis under the provisions of Section 25, Liquor Control Act. Laws 1935, pages 276-277, approved May 9, 1935. Secs. 23, 25, Art. IX, Mo. Const.; R. S. 1929, sec. 7289; Sec. 28, Liquor Control Act. Laws Ex. Sess. 1933-1934, p. 88; Sec. 21, Liquor Control Act, Laws Ex. Sess. 1933-34, p. 84; Section 10, Ordinance No. 40630, as amended, of the City of St. Louis; Sec. 25, Liquor Control Act, Laws Ex. Sess. 1933-1934, p. 88; Liquor Control Act, Laws 1935, pp. 276-277; Ex parte Tarling, 241 S.W. 929; State ex rel. Spencer v. Anderson, 101 S.W.2d 531; Sec. 21-a-1, Liquor Control Act, Laws 1935, pp. 272-274; Section 10-A, Ordinance No. 40630, as amended, of the City of St. Louis; Fishbach Brewing Co. v. St. Louis, 95 S.W.2d 335, 231 Mo.App. 793; Liquor Control Service, sec. 9009, pp. 27, 733.

OPINION

Leedy, J.

Suit for a declaratory judgment, filed by certain wholesale liquor dealers of the City of St. Louis, wherein they seek to have Section 10-A of the liquor control ordinance of said city adjudged invalid. The section in controversy purports to impose a gallonage tax on spirituous liquors and wines, in addition to the flat annual license tax or charge provided by Section 10 of said ordinance. The cause was tried upon an agreed statement of facts, resulting in a decree upholding the validity of the ordinance, and plaintiffs appealed. The constitutionality of said section, under both Federal and State Constitutions, is embraced within the issues of law tendered; hence, this court is vested with jurisdiction.

We examine first the assignment that the section of the ordinance mentioned is invalid because in conflict with the provisions of the State Liquor Control Act, and particularly Sections 21 and 25 thereof. The rule that municipal ordinances regulating subjects, matters and things upon which there is a general law of the State, must be in harmony with the State law (Sec. 7289, R. S. 1929, sec. 7289, Mo. Stat. Ann., p. 5874; Ex parte Tarling (Mo.), 241 S.W. 929) is not controverted by respondents. On the other hand, they assert that the power and authority of the city to impose a gallonage tax is specifically conferred by the State act. And to sustain that position, they invoke the very sections of the State statute upon which appellants rely to overturn the ordinance, so that, as thus sharply defined, the issue on this phase of the case is reduced to one of mere statutory interpretation.

The Twenty-first Amendment to the Constitution of the United States, adopted in 1933, effected the repeal of the Eighteenth or Natural Prohibition Amendment, following which the Fifty-seventh General Assembly of Missouri, at an extra session convened October 17, 1933, enacted a comprehensive scheme for the regulation and control of the manufacture, sale, possession, transportation and distribution of intoxicating liquor, known and designated as the "Liquor Control Act." [Laws Mo., Ex. Sess. 1933-34, pp. 77-95.] The act has been amended at each subsequent session of the Legislature. [Laws, 1935, pp. 267-285; Laws, 1937, pp. 527-534; Laws, 1939, pp. 817-824.]

Section 21 of said act, as amended by Laws, 1937, page 529, provides "No person, partnership,...