Kansas City v. Frogge

• Decision Date: 01 November 1943
• Docket Number: No. 38365.,38365.
• Citation: 176 S.W.2d 498
• Parties: KANSAS CITY, MISSOURI, Appellant, v. G.W. FROGGE.
• Court: Missouri Supreme Court

176 S.W.2d 498

KANSAS CITY, MISSOURI, Appellant, v. G.W. FROGGE.

No. 38365.

Supreme Court of Missouri, Division One.

Court en Banc, November 1, 1943.

Rehearing Denied, January 3, 1944.

Appeal from Jackson Circuit Court. — Hon. John F. Cook, Judge.

AFFIRMED.

William E. Kemp, City Counselor, and Arthur R. Wolfe, Assistant City Counselor, for appellant; Elliott H. Jones for E.H. Norrington, amicus curiae; V.E. Phillips and Burdette Yeo, amici curiae.

(1) A "use" tax, such as is exacted by the ordinance in question, has been upheld by the courts, without exception, as a proper and valid tax. Henneford v. Silas Mason Co., 300 U.S. 577, 81 L. Ed. 814, 57 S. Ct. 524; McGoldrick v. Berwind White Coal Min. Co., 309 U.S. 33, 84 L. Ed. 565, 60 S. Ct. 388; Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 85 L. Ed. 888, 61 S. Ct. 586; 38 Columbia L. Rev., p. 49. (2) The city of Kansas City has charter power to levy the tax in question. Charter of Kansas City, Art. 1, Sec. 1, Paragraphs (1) and (2); State ex rel. v. St. Louis, 319 Mo. l.c. 521. (3) This ordinance is presumptively valid and the burden is upon the party who assails it to clearly demonstrate its invalidity. Humes v. Mo. P. Ry. Co., 82 Mo. 221; Bituminous Pav. Co. v. McManus, 144 Mo. App. 593, 129 S.W. 448; Bank v. Woesten, 147 Mo. 467, 48 S.W. 939. (4) The trial court erred in declaring by its judgment herein that this ordinance violates Section 8, Article I, of the Constitution of the United States, to-wit, the commerce clause of the Constitution. Henneford v. Silas Mason Co., 300 U.S. 577, 81 L. Ed. 814, 57 S. Ct. 524; Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 85 L. Ed. 888, 61 S. Ct. 586; 38 Columbia L. Rev., p. 49. (5) The trial court erred in declaring by its judgment herein that this ordinance violates Section 1 of the Fourteenth Amendment to the Constitution of the United States. 43 C.J., p. 546; 59 C.J., p. 724; Dreffus v. Montgomery, 58 So. 730, 4 Ala. App. 270; New Orleans v. Paciera, 158 So. 1, 180 La. 869. (6) The trial court erred in declaring by its judgment herein that this ordinance was inhibited by Section 8395, Revised Statutes of Missouri, 1939 (Sec. 7780, R.S. 1929), and that said ordinance, therefore, violates Section 16, Article IX, of the Constitution of Missouri, which provides that a city of over 100,000 inhabitants "may frame and adopt a charter for its own government, consistent with and subject to the constitution and laws of the state." The ordinance is not inconsistent with said Section 8395, when said statute is given its only reasonable intendment and application. McGoldrick v. Berwind-White Coal Min. Co., 309 U.S. 33, 84 L. Ed. 565, 60 S. Ct. 388; Henneford v. Silas Mason Co., 300 U.S. 577, 81 L. Ed. 814, 57 S. Ct. 524; 59 C.J., p. 1001; State ex rel. v. Imel, 280 Mo. l.c. 562; State v. Toombs, 324 Mo. 819, 25 S.W. (2d) 101. (7) To give the intendment and application to the word "requirement," in said Section 8395, as urged by defendant, would render said statute violative of Section 28, Article IV, of the State Constitution, by reason of the deficiency in the title thereto. State ex rel. v. Becker, 329 Mo. 1041, 47 S.W. (2d) 781; State ex rel. v. Assurance Co., 251 Mo. 278, 158 S.W. 640; State ex rel. v. Hackmann, 292 Mo. 27, 237 S.W. 742. (8) This ordinance does not impose a license tax, Solberg v. Davenport, 232 N.W. 477, 211 Iowa, 612; Pacific Tel. & Tel. Co. v. Seattle, 21 Pac. (2d) 721, 172 Wash. 649; Youngblood v. Section, 32 Mich. 406; Ft. Worth v. G.F. Co., 83 S.W. (2d) 610, 125 Tex. 512; City of Sonora v. Curtin, 137 Cal. 583, 70 Pac. 674; Public Service Comm. v. Booth, 155 N.Y.S. 568; Chicago v. Gall, 195 Ill. App. 41; Littleton v. Burgess, 14 Wyo. 173, 82 Pac. 864; Globe Sec. & L. Co. v. Carrell, 106 Ohio St. 43, 138 N.E. 364; Board of Comm. v. Mayr, 31 Colo. 173, 74 Pac. 458; Comm. v. Central Hotel, 90 S.W. 565, 121 Ky. 846; State ex rel. v. Stein, 178 So. 133, 130 Fla. 517.

B.T. Hurwitz for respondent; Hanna & Hurwitz of counsel.

(1) Ordinance No. 5505 of Kansas City, Missouri, is inconsistent with and violates Sec. 8395, R.S. 1939, and the ordinance, therefore, is invalid under Section 16, Article IX, of the Constitution of the State of Missouri. Sec. 8395, R.S. 1939; Ex parte Tarling, 241 S.W. 929; City of Sikeston v. Marsh, 110 S.W. (2d) 1135; City of West Plains v. Nolen, 112 S.W. (2d) 79; Henneford v. Silas Mason Co., 57 S. Ct. 524, 300 U.S. 577; State of Maine v. Grand Trunk Railroad Co., 12 S. Ct. 121, 142 U.S. 217; Brown v. State, 19 S.W. (2d) 12. (2) Ordinance No. 5504 of Kansas City, Missouri, is in violation of the Missouri Sales Tax Law, and the rules and regulations with respect thereto adopted by the State Auditor's office and is, therefore, invalid under Section 16, Article IX, of the Constitution of Missouri. Missouri Sales Tax Law, Secs. 11407-11456, R.S. 1939; Rules and Regulations issued by Forrest Smith, covering sales made in Interstate Commerce as applied to the Missouri Sales Tax Act, effective October 1st, 1940; Kansas City v. J.I. Case Threshing Machine Co., 87 S.W. (2d) 195; Public Service Comm. v. St. Louis S.F. Ry. Co., 256 S.W. 226. (3) In its administration, ordinance No. 5504 in practise and in effect sets up an unreasonable, unfair and discriminatory classification and is, therefore, invalid under Section 1 of the 14th Amendment of the Constitution of the United States, under Section 3 of Article X of the Constitution of the State of Missouri, and under Section 4 of Article X of the Constitution of the State of Missouri. 14th Amend. Constitution, United States, Sec. 1; Secs. 3, 4, Art. X, Mo. Constitution; Nafziger Baking Co. v. City of Salisbury, 48 S.W. (2d) 563; City of Ozark v. Hammond, 49 S.W. (2d) 129; City of Lebanon v. Joslyn, 58 S.W. (2d) 289; City of Cape Girardeau v. Groves Motor Co., 142 S.W. (2d) 1040; Plock v. St. Louis, 138 S.W. (2d) 1020; Richey v. Wells, 166 So. 817. (4) The ordinance is in violation of Sec. 7440, R.S. 1939, and is, therefore, invalid under Section 16, Article IX, of the Constitution of the State of Missouri. State v. Hallenberg-Wagner Motor Co., 108 S.W. (2d) 402; Ludlow-Saylor Wire Co. v. Woolbrinck, 205 S.W. 196; Siemens v. Shreeve, 296 S.W. l.c. 416; Albers v. St. Louis, 268 Mo. 349, 188 S.W. 83; 61 C.J. 75; 26 R.C.L. 38, sec. 22; Glasgow v. Rowse, 43 Mo. l.c. 490; Viquesney v. Kansas City, 266 S.W. 700; Sec. 7440, R.S. 1939; Keane v. Strodtman, 18 S.W. (2d) 896, 323 Mo. 161. (5) The ordinance No. 5504, Kansas City, Missouri, is in violation of Sec. 7442, R.S. 1939, and is, therefore, invalid under Section 16, Article IX, of the Constitution of the State of Missouri. Sec. 7442, R.S. 1939; Kansas City v. J.I. Case Threshing Machine Co., 87 S.W. (2d) l.c. 201; Tremayne v. St. Louis, 6 S.W. (2d) 941.

John C. Grover, amicus curiae.

VAN OSDOL, C.

This is an action to recover the amount of tax imposed upon defendant by plaintiff city under the provisions of its Ordinance Number 5504. The case was submitted in the trial court on an agreed statement of facts. Finding and judgment was for defendant; the trial court did not indicate the ground upon which it declared the ordinance to be invalid. Plaintiff has appealed.

The ordinance, taxing the storage, use or other consumption of certain tangible personal property in Kansas City, Missouri, is attacked by answer as violative of Section 16 of Article IX of the Constitution of Missouri, in that the ordinance is inconsistent with the provisions of Section 8395, R.S. 1939, Mo. R.S.A., sec. 8395; as a violation of the commerce clause (Section 8, Article I, Constitution of the United States); as a violation of the exports-imports clause (Section 10, Article I, Constitution of the United States); and as violative of the due process and equal protection of the law clauses of the 14th Amendment of the Constitution of the United States, in that it discriminates between citizens of Missouri who purchase chattels of dealers in Kansas and those who purchase chattels of dealers in Missouri, and in that its practical operation imposes the tax on those citizens of Missouri who purchase motor vehicles in Kansas while it is "scantily imposed, if at all" with respect to those citizens of Missouri who purchase other chattels in Kansas. Defendant, respondent, by brief herein has challenged the validity of the ordinance as violative of Section 16, Article IX, Constitution of Missouri, in that it is inconsistent with the Sales Tax Act of Missouri and the rules and regulations adopted by the State Auditor with respect thereto; in that it is inconsistent with Section 7440, R.S. 1939, Mo. R.S.A., sec. 7440; and in that it is inconsistent with Section 7442, R.S. 1939, Mo. R.S.A., sec. 7442. Further, the defendant in his brief has attacked the validity of the ordinance as a violation of Sections 3 and 4 of Article X, Constitution of Missouri, contending that the ordinance in practice and in effect creates an arbitrary and discriminating classification for taxation.

Plaintiff is a municipal corporation organized under a special charter adopted by its people for its own local self-government, under the provisions of Section 16, Article IX, Constitution of Missouri. Defendant is a resident of Kansas City, Missouri, and since the effective date (October 16, 1939) of the ordinance has purchased from a retail motorcar dealer in Kansas City, Kansas, four motor trucks which defendant now uses in his business in Kansas City, Missouri. The storage, use, consumption or sale of said personal property has not been subjected to any sales or use tax by the state of Missouri nor by any other state. Defendant has not paid any tax under or by virtue of the provisions of the ordinance, but has otherwise paid all taxes, licenses and fees and performed all requirements in connection with the trucks as required by law. A diligent effort has been made by plaintiff city to further the collection of all taxes levied under the ordinance;...