Keane v. Strodtman

• Citation: 18 S.W.2d 896,323 Mo. 161
• Decision Date: 29 June 1929
• Docket Number: 29517
• Parties: Ex Parte Michael J. Keane, Petitioner, v. George W. Strodtman, Sheriff, Respondent
• Court: Missouri Supreme Court

18 S.W.2d 896

323 Mo. 161

Ex Parte Michael J. Keane, Petitioner, v. George W. Strodtman, Sheriff, Respondent

No. 29517

Supreme Court of Missouri

June 29, 1929

Petitioner discharged.

Hugo L Weismantel for petitioner.

(1) The city has no authority to pass an ordinance regulating and licensing those engaged in the business of erecting maintaining or repairing awnings which project over highways because no power to license or regulate those engaged in that line of business is granted by the Charter of the City of St. Louis, or conferred upon the city by the statutes. Sec. 8702, R. S. 1919; Kansas City v. Lorber, 64 Mo.App. 604; Pierce City v. Hentschel, 210 S.W. 31; Kansas City v. Grush, 151 Mo. 134; Fulton v. Craighead, 164 Mo.App. 90; Ex parte Tarling, 241 S.W. 929; Ex parte Siemens v. Shreeve, 296 S.W. 415. (2) The ordinance is null and void in that it attempts to and does discriminate between those engaged in the business of erecting, maintaining and repairing awnings over the sidewalks of the city and those engaged in the business of erecting, maintaining and repairing awnings whose work does not embrace services performed over sidewalks. State v. Miksicek, 225 Mo. 561; State v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 400; Kansas City v. Grush, 151 Mo. 131. (3) Section 2 of said ordinance is null and void in that it confers upon the license collector legislative authority, giving him a right to require such relevant information as he may deem fit. Elkhart v. Murray, 1 L. R. A. (N. S.) 940; Vessiones v. Indianapolis, 71 Ind. 189; Richmond v. Dudley, 13 L. R. A. 587; St. Louis v. Allen, 204 S.W. 1083; St. Louis v. Clemons, 43 Mo. 395. (4) Section 4 of said ordinance is invalid in that it gives to the building commissioner the right to revoke licenses of any awning company that performs its work in a manner that does not meet with this approval, and thereby invests him with legislative authority. Elkhart v. Murray, 1 L. R. A. (N. S.) 940; Vessiones v. Indianapolis, 71 Ind. 189; Richmond v. Dudley, 13 L. R. A. 587; St. Louis v. Allen, 204 S.W. 1083; St. Louis v. Clemons, 43 Mo. 395.

Julius T. Muench and Oliver Senti for respondent.

(1) Where the general language of the charter is broad enough to authorize the imposition of a license tax on a business, an ordinance of the City imposing a license tax on such business although not specially mentioned as taxable in the charter, is not invalid by reason of the terms of Sec. 8702, R. S. 1919. St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870. (a) The language of the charter of the city of St. Louis is broad enough to authorize it to impose a license tax on the business in which the petitioner is engaged. Charter, Art. I, sec. 1, pars. 2, 23, 24 and 35, and Art. I, sec. 2. (b) Special charters granted to municipalities by the Legislature may be amended. 43 C. J. 172; St. Louis v. Allen, 13 Mo. 300. (c) The construction of the language of a charter adopted pursuant to a constitutional grant of power is a judicial function. (2) The charter authorizes the city to adopt such classifications of the subjects and objects of taxation as may not be contrary to law. (a) The imposition of a license tax upon the class created by the ordinance is not discriminatory, in that it does not apply to those erecting, maintaining and repairing awnings on private property only. Ex parte Asotsky, 5 S.W.2d 25. (b) An ordinance regulating the business of erecting, maintaining and repairing awnings extending over the public highways is not class legislation, because it does not regulate those erecting, maintaining and repairing awnings which project over the public highways. Hawkins v. Smith, 242 Mo. 648; Blind v. Brockman, 12 S.W.2d 742. (3) The relator has never made application for the license required by the ordinance. On the record, he is not in a position to challenge the validity of the ordinance, in that it authorizes the license collector to require an applicant for a license to furnish relevant information, nor in that it authorizes the building commissioner to revoke a license because the licensee performs his work in a manner which does not meet with his approval. Section 4 of the ordinance merely authorizes the ministerial officers of the city to ascertain facts, which is not a delegation of legislative power. State v. Thompson, 160 Mo. 333.

Walker, J. All concur, except White, C. J., who dissents.

OPINION

WALKER

This is a proceeding in Habeas Corpus to test the validity of an ordinance of the city of St. Louis, No. 35536, approved January 10, 1927, requiring persons engaged in the business of erecting, maintaining or repairing awnings which project over public highways, to procure from the city of St. Louis a license therefor and to pay for that privilege the sum of $ 100 per year.

The petitioner refused to comply with this ordinance and was arraigned, tried and convicted in the Court of Criminal Correction and fined $ 100. In default of payment of the same he was taken into custody by the sheriff, and pending his commitment he made application for this writ. Upon the making of this application the formal issuance of a preliminary writ and the production of the body of the petitioner were waived by a stipulation of the parties.

As a prerequisite to the granting of this license, in addition to the applicant stating his name and address, he is required to accompany his application with a bond for five thousand dollars to be approved as to form by the city counselor and as to the sufficiency of the sureties by the city comptroller. The purpose of this bond, as stated in the ordinance, is to indemnify the city against all claims, judgments or suits caused by the erection, maintenance or repair of any awnings erected, maintained or repaired by such applicant.

Upon a compliance with these conditions and the payment to the collector of the sum of $ 100 a license is to be issued to the applicant for a period of one year from its date.

Subsequent sections of the ordinance require an inspection from time to time of such awnings by the building commissioner and authorize a revocation of the applicant's license upon his failure to erect, maintain and repair such awnings as required by the ordinance; the term, public highway, as used in the ordinance is declared to include the sidewalks as well as the main roadways, and a violation of the ordinance is declared to be a misdemeanor, punishable by a fine of not less than five dollars nor more than five hundred dollars for each day's violation.

The petition, after the formal general allegations as to the petitioner's wrongful and unlawful arrest and detention and his trial and conviction for a violation of the ordinance, alleges as grounds for the issuance of this writ and his discharge from custody that he is engaged in the awning business in the city of St. Louis, and that the alleged ordinance under which he was fined and imprisoned is an attempt by the city of St. Louis to regulate and license those engaged in maintaining, erecting and repairing awnings; that the charter of the city of St. Louis does not specifically give the city the right to tax and regulate those engaged in the awning business; that Section 8702, Revised Statutes 1919, prohibits the taxing of any business, avocation or pursuit not mentioned in the charter. That said Ordinance No. 35536 is null and void and of no force and effect in that it is violative of Section 53, Clauses 26 and 32, Article IV, of the Constitution of the State of Missouri; that it is also violative of the provisions of the Fourteenth Amendment to the Constitution of the United States.

The sheriff's return to the writ sets out the ordinance in haec verba and avers he detains and holds the petitioner on a commitment under a judgment of the St. Louis Court of Criminal Correction, finding and adjudging him guilty of a violation of the ordinance. Other conventional allegations usually made in a return of this character are included, as required by Section 1891, Revised Statutes 1919.

The formal allegations of the return as to the detention of the petitioner are not negatived but, as authorized by the statute, Section 1903, Revised Statutes 1919, facts are alleged to show that his detention is unlawful.

I. It is the contention of the petitioner that the power of the city of St. Louis to impose a license tax upon persons engaged in business therein is limited by the terms of the statute (Sec. 8702. R. S. 1919), as therein provided. That section is as follows:

"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."

A comprehensive list of the vocations upon which license taxes may be imposed is contained in Article XX of the Charter of 1914 of the City of St. Louis. It may be said to alphabetically run the gamut of human activity, so far as the designation of callings is concerned upon which licenses are expressly authorized to be imposed. This enumeration however, does not include those engaged in the business of erecting, maintaining or repairing awnings. It remains to be determined, therefore, whether the absence of this enumeration precluded the adoption and the subsequent enforcement of this ordinance. Or, in the absence of such enumeration, did the supplemental clause to Article XX authorize the adoption of the ordinance and the exercise of the power therein granted. That clause is as follows: "The foregoing enumeration shall not be taken to affect or impair the general power of the city to impose license taxes upon any business, vocation,...