Lawyers' Ass'n of St. Louis v. City of St. Louis

• Court: Missouri Court of Appeals
• Writing for the Court: ELMO B. HUNTER; ANDERSON, P. J., and MATTHES
• Citation: Lawyers' Ass'n of St. Louis v. City of St. Louis, 294 S.W.2d 676 (Mo. App. 1956)
• Decision Date: 18 September 1956
• Docket Number: No. 29585,29585
• Parties: The LAWYERS' ACSSOCIATION OF ST. LOUIS, a corporation, George W. Curran and Richard M. Stout, Appellants, v. The CITY OF ST. LOUIS, Respondent.

Page 676

294 S.W.2d 676

The LAWYERS' ACSSOCIATION OF ST. LOUIS, a corporation George W. Curran and Richard M. Stout, Appellants, v. The CITY OF ST. LOUIS, Respondent.

No. 29585.

St. Louis Court of Appeals, Missouri.

Sept. 18, 1956.

Motion for Rehearing or for Transfer to Supreme Court Denied

and Opinion Modified Nov. 13, 1956.

Joyce I. Pueser, Richard M. Stout, St. Louis, for appellants.

James V. Frank, Acting City Counselor, Charles J. Dolan, Associate City Counselor, St. Louis, for respondent.

ELMO B. HUNTER, Special Judge.

This is a suit for declaratory judgment to determine the applicability of the St. Louis City Earnings Tax Ordinance No. 46,222 to the income of lawyers. The three plaintiffs are The Lawyers' Association of St. Louis, a pro forma decree corporation, whose membership consists of approximately 375 attorneys practicing in St. Louis City, and two individual attorneys, George W. Curran, who resides in and practices law in the City of St. Louis, and Richard M. Stout, who resides in St. Louis County, but practices law in the City of St. Louis. Defendant, the City of St. Louis, is a municipal corporation of the State of Missouri.

Defendant City acting under claimed authority of a statutory enabling act, Sec. 92.110, V.A.M.S., on August 28, 1952, enacted its Ordinance No. 46,222, which, by its terms, levied and imposed an earnings tax for general revenue purposes of one-half of one percent on salaries, wages, commissions, and other compensation earned after August 31, 1952, by residents of the City of St. Louis, or earned by non-residents of the City of St. Louis, for work done or services performed or rendered in the City. This ordinance expired April 1, 1954.

On April 6, 1953, the present action commenced with the filing of plaintiffs' petition in the Circuit Court of the City of St. Louis. In it, as amended, plaintiffs allege that the profession of lawyers does not constitute the carrying on of an ordinary business and is not within the provisions of the enabling statute, and that there is in full force and effect a statute which prohibits a municipal corporation from imposing a license tax upon any business avocation, pursuit or calling, unless it is specifically named as taxable in the charter of such municipal corporation, or unless such power be conferred by statute. Sec. 71.610, V.A.M.S. Plaintiffs also contend that the City of St. Louis is without the right or power to assess the earnings tax against lawyers in view of another statute which provides that 'no person following for a livelihood the profession or calling of minister of the gospel, teacher, professor in a college, priest, lawyer or doctor of medicine in this state, shall be taxed or made liable to pay any municipal or other corporation tax or license fee of any description whatever for the privilege of following or carrying on such profession or calling, any law, ordinance or charter to the contrary notwithstanding.' Sec. 71.620, V.A.M.S. Plaintiffs pray the judgment of the Court that Ordinance No. 46,222 insofar as it purports to tax the professional earnings of attorneys residing either outside or inside the city limits of the City of St. Louis for professional services is beyond the power and authority of the City to enact. A copy of Ordinance No. 46,222 was attached to plaintiffs' amended petition as an exhibit and made a part thereof.

Defendant City in its answer, among other things, admitted the existence of the pleaded Ordinance No. 46,222 and the pleaded statutes; denied that it was without power and authority to enact the ordinance and to impose and collect the tax on the earnings of attorneys; alleged it is levying and intends to continue to levy the earnings tax on the earnings of attorneys and other professional men mentioned in Sec. 71.620, V.A.M.S.; denied the tax is a license fee or license tax; asserted it is a general revenue tax not related to any privilege or license whatsoever; and prayed the Court to declare Ordinance No. 46,222 insofar as it affects plaintiffs, including the members of the Lawyers' Association and others similarly situated, to be a valid ordinance. At the time defendant's answer was filed, it also filed its motion for judgment on the ground the petition failed to state a claim upon which relief can be granted. Thereafter, plaintiffs filed their motion for judgment on the pleadings, alleging there was no fact dispute, and that defendant's answer failed to state facts which would constitute a defense in law.

On June 24, 1955, the cause was argued and submitted to the trial Court. On July 29, 1955, the trial Court dismissed plaintiffs' cause, declaring that the case was moot in view of the fact that the enabling statute was limited by its own terms so that it expired April 1, 1954, and that Ordinance No. 46,222 by law expired on the same date. On September 7, 1955, plaintiffs filed their notice of appeal to the Supreme Court. After receipt of defendant's motion suggesting that the Court lacked jurisdiction of the appeal, the Supreme Court, on March 22, 1956, transferred the appeal to this Court.

At the time this cause was argued on appeal in this Court, counsel for both plaintiffs and defendant urged this Court to consider the case as one presenting a vital existing controversy, which, because of the high public interest therein, should be determined by this Court, thereafter, with leave of this Court, they filed their written stipulation as follows:

'Come now the parties to the above entitled cause and agree and stipulate that the Court in considering the issues presented therein may take into consideration the following facts:

'1. That Ordinance No. 46222 of the City of St. Louis, being the ordinance and interpretation of which is in issue in this cause, ceased to be effective on April 1, 1954.

'2. That thereafter the City of St. Louis, Defendant-Respondent herein, passed an ordinance known ad Ordinance No. 47063 which was approved by the Mayor of the said City on April 28, 1954, becoming effective on the same day.

'3. That the provisions of the said Ordinance No. 47063 are identical with the provisions of Ordinance No. 46222 except with regard to the effective date of Ordinance No. 47063 which is April 28, 1954, whereas the effective date of Ordinance No. 46222 was August 28, 1952.

'4. That during the period intervening between the expiration of Ordinance No. 46222 and the going into effect of Ordinance No. 47063, that is to say between April 1, 1954, and April 28, 1954, there was no ordinance levying a tax on earnings in the City of St. Louis.

'5. That Ordinance No. 47063 was passed pursuant to an enabling act of the Missouri legislature, which act appears as Chapter 92 of the Cumulative Supplement of 1955 to the Revised Statutes of Missouri [V.A.M.S.], said act being identical with the previous enabling act except for the final section, 92.200, which is not relevant here.

'6. That, except for the said intermission, Ordinance No. 47063 may be regarded as a continuation of Ordinance No. 46222 and a determination of the question of the applicability of Ordinance No. 46222 to the persons designated in Section 71.620, Revised Statutes of Missouri, 1949, will be equivalent to determination of the same question with regard to Ordinance No. 47063.

'7. That widespread publicity was given to the intention of the Lawyers' Association of St. Louis, one of the plaintiffs herein, to bring a test suit to determine this question and that in consequence of said publicity a considerable number of the members of the professions named in Section 71.620 R.S.Mo.1949 [V.A.M.S.], as not being subject to license taxes have failed to file with the Collector of Revenue of the City of St. Louis a return of earnings as required by Section 5 of said Ordinance No. 46222.

'8. That many suits have been filed in the magistrate courts of the City of St. Louis for the collection of delinquent taxes due under Ordinance No. 46222, some of which are still pending, and that the Collector of Revenue will continue to file such suits as long as any delinquent taxes remain unpaid until such suits shall be barred by the Statute of Limitations.

'9. That an adjudication of the applicability of Ordinance No. 46222 to members of the professions designated in Section 71.620 of the Revised Statutes of Missouri, 1949 [V.A.M.S.], will be for all purposes accepted as equivalent to the determination of the same question with reference to Ordinance No. 47063

'10. That until the said question shall have been finally determined doubt will continue to prevail regarding the applicability of the present earnings tax ordinance to members of the said professions.

'11. That neither of the individual plaintiffs in said cause has made return of his earnings as required by Ordinance No. 46222 and that each of them is liable to be sued under said ordinance.'

It is a well established general rule that courts will not act upon and decide a moot question or give a purely advisory opinion. The existence of an actual controversy between the parties is an essential requisite. Fugel v. Becker, Mo.Sup., 2 S.W.2d 743; Tietjens v. City of St. Louis (en Banc) 359 Mo. 439, 222 S.W.2d 70; Dolan v. Richardson, Mo.App., 181 S.W.2d 997; Corken v. Workman, 231 Mo.App. 121, 98 S.W.2d 153; Personal Finance Co. of Missouri v. Day, 349 Mo. 1139, 164 S.W.2d 273; 1 C.J.S., Actions, Sec. 17; 14 Am.Jur., Courts, Sec. 49. As expressed in Preisler v. Doherty (en Banc), 364 Mo. 596, 265 S.W.2d 404, loc. cit. 407: 'A question is moot when the question presented for decision seeks a judgment upon some matter which if judgment were rendered could not have any practical effect upon any then existing controversy.' Further, a case originally presenting an existing controversy may become moot by causes occurring after the commencement of the action. Again, the established rule is that such a case or question which has become moot ordinarily will not be considered by ...