Nafziger Baking Co. v. City of Salisbury

• Decision Date: 15 March 1932
• Docket Number: 29660
• Citation: 48 S.W.2d 563,329 Mo. 1014
• Parties: Nafziger Baking Company, a Corporation, and Tom O'Gara v. The City of Salisbury, a Municipal Corporation, A. Emmerich, its Mayor, John Finnell, its Marshall, and Roy B. McKittrick, its City Attorney, Appellants
• Court: Missouri Supreme Court

48 S.W.2d 563

329 Mo. 1014

Nafziger Baking Company, a Corporation, and Tom O'Gara v. The City of Salisbury, a Municipal Corporation, A. Emmerich, its Mayor, John Finnell, its Marshall, and Roy B. McKittrick, its City Attorney, Appellants

No. 29660

Supreme Court of Missouri

March 15, 1932

Appeal from Chariton Circuit Court; Hon. J. E. Montgomery Judge.

Affirmed.

Roy B. McKittrick for appellants.

(1) Under the Constitution of the United States of America and the amendments thereto and the Constitution of the State of Missouri, the ordinance of the City of Salisbury does not (a) Abridge the privileges and immunities of citizens of the United States. (b) Fix an unreasonable, exorbitant and confiscatory tax. (c) Deprive petitioners of their property without due process of law. (d) Deny petitioners equal protection of the law. 14th Amendment, Constitution of United States; Constitution of Missouri, Art. II, Secs. 4 and 30; Singer Sewing Machine Co. v. Bricknell, 233 U.S 304; Merchants Bank v. Pensylvania, 167 U.S. 464; Magown v. Trust & Savings Bank, 170 U.S. 283; Bauchs v. Louisiana, 232 U.S. 334. (2) The pecuniary interest of defendants in the prosecution and conviction of the petitioners was not such as to violate the constitutional provisions with respect to due process of law. 14th Amendment, Constitution of United States; Constitution of Missouri, Art. II, Secs. 4, 30; Dugan v. State of Ohio, 48 S.Ct. 439. (3) Under the Fourteenth Amendment of the Federal Constitution on questions involving taxation, the State determines its own policy and the Federal Government is not charged, nor does it supervise, state action, so that: (a) The ordinance does not violate the laws of the State of Missouri by discriminating against persons selling or delivering goods in Salisbury who do not sell or deliver at a regularly established place in that city. (b) The ordinance does not attempt to change the statutory rule of taxation by extending the authorized statutory callings and sub-classification of the statutory enumerated callings and by the application of the doctrine of ejusdem generis. R. S. 1919, secs. 8497, 9253; Laws 1923, p. 267; Florida Cent. R. Co. v. Reynolds, 183 U.S. 480; Bradley v. Richmond, 227 U.S. 477; Cook v. Marshall County, 196 U.S. 261; St. Louis v. Meyer, 185 Mo. 595; State v. Emert, 103 Mo. 247; State v. Snoddy, 128 Mo. 253; State v. Holmes, 62 Mo.App. 178; Kansas City v. Ferd Heim Brewing Co., 98 Mo.App. 594; Kansas City v. Lorber, 64 Mo.App. 609; Ex parte Asotsky, 5 S.W.2d 25; Viquesneky v. Kansas City, 300 Mo. 498.

J. L. Brown, W. W. Graves, Jr., and John C. Grover for respondents.

(1) The ordinance violates the Constitution of the United States, in that it: (a) Denies petitioners equal protection of the law. (b) Deprives petitioners of their property without due process of law. (c) Exacts an unreasonable, exorbitant and confiscatory tax. (d) Abridges the privileges and immunities of the citizens of the United States. 14th Amendment, Constitution of United States; Louisville Gas & Electric Co. v. Coleman, 48 S.Ct. 423; Power Mfg. Co. v. Saunders, 274 U.S. 490; Bethlehem Motors Corp. v. Flynt, 256 U.S. 421; Chalker v. Birmingham, etc., Ry., 249 U.S. 522; Quaker City Cab Co. v. Commonwealth, 277 U.S. 389; Jewell Tea Co. v. Lees Summit (Mo.), 189 F. 280; Campbell Baking Co. v. Maryville, 31 F.2d 466; Singer Sewing Machine Co. v. Brickell, 233 U.S. 304. (2) The ordinance violates the Constitution of the State of Missouri, in that it: (a) Denies petitioners equal protection of the law. (b) Deprives petitioners of their property without due process of law. (c) Exacts an unreasonable, exorbitant and confiscatory tax. Constitution of Missouri, Art. II, secs. 4, 30. (3) Defendants' interest in the conviction of petitioners violates the due process provisions of the Constitutions of the United States and State of Missouri. 14th Amendment, Constitution United States; Constitution of Missouri, Art. II, secs. 4, 30; Tuney v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437. (4) Petitioner Nafziger Baking Company, under the facts is not a merchant, peddler or hawker, and therefore not taxable as such. R. S. 1919, sec. 8497, as amended; Laws 1923, p. 267; R. S. 1919, secs. 9253, 13065; Kansas City v. Butt, 88 Mo.App. 237; Kansas City v. Ferd Heim Brewing Co., 73 S.W. 302; State v. Richeson, 45 Mo. 575; State v. West, 34 Mo. 424; State v. Whittaker, 33 Mo. 457; P. F. Petersen Baking Co. v. City of Fremont, 228 N.W. 256; Ex parte Asotsky, 5 S.W.2d 22; Viquesney v. Kansas City, 305 Mo. 488; State v. Hoffman, 50 Mo.App. 585. (5) The City of Salisbury could not by ordinance change or alter the statutory provisions of the State of Missouri with respect to taxation, either by: (a) Defining vocations or occupations. (b) Sub-classifying the enumerated vocations or occupations. (c) Applying the doctrine of ejusdem generis. R. S. 1919, sec. 8497, as amended by Laws 1923, p. 267; R. S. 1919, sec. 8702; Seimens v. Shreeve, 317 Mo. 736; Pierce City v. Hentchel, 210 S.W. 31; St. Louis v. Spiegel, 75 Mo. 145, 90 Mo. 587; State v. Broeker, 11 S.W.2d 81; St. Louis v. Baskowitz, 201 S.W. 870; Keane v. Strodtman, 18 S.W.2d 896; Campbell Baking Co. v. Maryville, 31 F.2d 466.

OPINION

Westhues, C.

Plaintiffs, respondents, ask in this proceeding to enjoin the defendants, the city of Salisbury, a city of the fourth class, and the officers of said city from enforcing an ordinance. Judgment and decree was, by the trial court, entered for plaintiffs and defendants appeal.

The ordinance in question is as follows:

"SECTION I. License: Any person, firm or corporation engaged in selling or delivering any goods or merchandise of any kind, at wholesale or retail, to any firm, person or corporation in the City of Salisbury, Missouri, shall pay at the rate of $ 2 per day, or $ 30 per month, or $ 125 for six months, or $ 200 per year; but this Section shall not apply to any person, firm or corporation selling at their regular established place of business. Any person, firm or corporation making any such sale or delivery, without first procuring a license and paying the said sums of $ 2 per day, or $ 30 per month, or $ 125 for six months, or $ 200 per year, shall be fined in the sum of not less than $ 25 nor more than $ 50."

Another ordinance provides a tax of $ 1.50 to $ 7.50 per year on the various merchants of the city, as classified in the ordinance. Bakeries are taxed at $ 4 per year.

The agreed statement of facts submitted to the trial contains the following:

"That the petitioner, Nafziger Baking Company, owns and operates bakeries situated in the cities of Kansas City, Jackson County; Sedalia, Pettis County; Springfield, Greene County, and the city of St. Louis, all in the State of Missouri, and manufactures in said bakeries cakes, bread and other bakery products; that petitioner, Nafziger Baking Company, sells the bread and other bakery products so manufactured to its customers, who are retail dealers in bakery products, in St. Louis, Springfield, Kansas City and Sedalia, Missouri, and in the surrounding territory, including the smaller towns and cities near Sedalia, and the defendant City, Salisbury, and delivers the bread and bakery products so sold by means of bread trucks, which are its own private conveyances; that it runs a bread truck daily to and from its bakery to the defendant City, a distance of about fifty-five miles, from which it makes delivery to its customers in defendant City. The petitioner, Tom O'Gara, is an agent and employee of petitioner, the Nafziger Baking Company, and was and is at all times hereinafter mentioned the agent of said petitioner, the Nafziger Baking Company, engaged in taking orders and delivering bread and other bakery products to patrons in the defendant city of Salisbury.

"It is further agreed that on the 8th day of November, 1928, petitioner, the Nafziger Baking Company's agent, petitioner Tom O'Gara, while engaged in the business of petitioner Nafziger Baking Company as aforesaid, was arrested upon the complaint of defendant, John Finnell . . . that the prosecution of petitioners as begun and as threatened, and the imposition and enforcement of said fines would prevent petitioners from making any further sales or deliveries in said City, and would completely destroy petitioners' business in said City; that the gross amount of petitioners' sales in said City is approximately $ 50 per week; that on a sale of $ 50 per week under the facts in this case the profits to the petitioners would be from $ 3 to $ 5 per week. . . .

"That the business of petitioners is conducted by selling and delivering bread to grocers and retailers dealing in bakery products and that petitioners do not sell or deliver bread to the general public."

The plaintiffs, petitioners, contend that the ordinance in question is unconstitutional and void, in that it violates the Fourteenth Amendment of the Constitution of the United States, by denying plaintiffs, the equal protection of the law and also depriving them of their property...