Pierce City v. Hentchel

• Decision Date: 10 December 1915
• Docket Number: 1580
• Citation: 180 S.W. 1027
• Parties: PIERCE CITY v. HENTCHEL.
• Court: Missouri Court of Appeals

180 S.W. 1027

PIERCE CITY v. HENTCHEL.

No. 1580

Court of Appeals of Missouri, Springfield

December 10, 1915

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

G. F Hentchel was convicted of violating an ordinance of the city of Pierce City, and he appealed to circuit court. From a judgment discharging defendant, the City appeals. Reversed and remanded, and certified to the Supreme Court.

Robertson, P. J., dissenting.

Theodore Alvord, of Pierce City, for appellant.

W Cloud, of Pierce City, for respondent.

OPINION

STURGIS, J.

The appeal in this case raises the question of the power of the plaintiff, a city of the fourth class, to enforce an ordinance requiring all persons engaged in the business of plumbing to procure a city license therefore and pay a license fee of $10 per annum. The circuit court, to which the defendant brought the case on appeal, discharged the defendant, and the city brings the case to this court.

No question is made here but that defendant violated the terms of this ordinance, and should be convicted, provided the ordinance itself is not invalid, because exceeding the charter powers vested in the city. The ordinance in question is a special one, and relates to the business of plumbing only. It provides that no person, firm, or corporation shall engage in the business of plumbing in Pierce City without first obtaining a license and paying therefor the sum of $10 per year; that any person, firm, or corporation desiring to do any plumbing work on any water main, service pipe, etc., shall make application to the city clerk for permission to do such work and exhibit his license; also that he make report of the extensions made and the appliances installed, and that a failure to comply with the ordinance shall constitute a misdemeanor.

The ordinance in question depends for its validity on section 9399, R. S. 1909, giving cities of the fourth class "power and authority to regulate and to license and to levy and collect license taxes on beer depots," etc., enumerating a large number of businesses, trades, and avocations, and then adding the words, "and all other businesses, trades and avocations whatever." The business or trade of plumbing is not specifically mentioned therein. The general rule laid down for the construction of this and like statutes is stated in 1 Dillon’s Municipal Corporations (5th Ed.) § 237, as follows:

"It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation--not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied."

This is the rule adopted by the courts of this state. State v. Butler, 178 Mo. 272, 313, 77 S.W. 560; Town of Trenton v. Clayton, 50 Mo.App. 535, 539; City v. Leckie, 78 Mo.App. 8, 12; City v. Cleveland, 167 Mo. 384, 388, 67 S.W. 216. There is also a statute in this state (section 9580, R. S. 1909), which, by its terms, is applicable to all municipal corporations, and which reads:

"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."

We do not find any case construing section 9399, above mentioned, and which is part of the charter of fourth-class cities, as applied to licensing any businesses not specifically named therein. There is, however, a similar section in the charter of third-class cities (section 9253, R. S. 1909), which provides that such cities shall have "power and authority to levy and collect a license tax on beer depots," etc., enumerating a large number of businesses, callings, and avocations, for the most part the same as those enumerated in the corresponding section (9399) in the charter of fourth-class cities, and ending with the words, "and all other avocations whatever." This section of the statute has received construction in City of Independence v. Cleveland, 167 Mo. 384, and is quoted at length on page 387, 67 S.W. 216, where the concluding words of the clause just referred to is given as then reading, "and all other businesses, trades and avocations whatever," being the same as section 9399 relating to fourth-class cities. The court, in the case just mentioned, noting that "steam laundries" was not one of the businesses specifically mentioned in the statute, said:

"And we have looked in vain for any authority in that section which authorizes cities of the third class to levy a license tax on steam laundries. It is clearly not so expressed, nor do we think any such authority can be implied from the language employed."

It will be noted that the court holds that the statute in question does not grant the power to license or tax a business not expressly enumerated, not that such power is restricted as to taxing by the other section of the statute mentioned. Referring to the above decision for its authority, the Kansas City Court of Appeals, in City of Fulton v. Craighead, 164 Mo.App. 90, 91, 147 S.W. 1128, expressly held that a city of the third class has no authority to require a plumber to pay a license tax, and said:

"The statute (section 9253) enumerating the kinds of business, or the callings, vocations, or pursuits, which may be taxed, does not name plumbing as one of them. Nor is there anything in any other statute from which the power is either fairly or necessarily implied. City of Independence v. Cleveland, 167 Mo. 384 . Therefore the city of Fulton must look to the Legislature, instead of the courts, for the requisite power."

These cases meet our approval and are authority for affirming the judgment of the trial court. We find, however, that our Supreme Court, in Ex parte Smith, 231 Mo. 111, 132 S.W. 607, had before it the question of the power of the city of St. Louis to require persons engaging in the business of plumbing to obtain a license from that city. The question there, as here, arose on the prosecution of the defendant for violating such an ordinance. The court, speaking of the charter powers of that city, said (231 Mo. 116, 132 S.W. 608):

"Clauses of the charter of the city of St. Louis applicable to this discussion are clause 5 of section 26 of article 3 of the charter, which give the mayor and the municipal assembly the power to license, tax, and regulate various kinds of business. This clause, after specifying the various kinds of business, further provides the power to license, tax, and regulate all other business, trades, avocations, or professions whatever. And clause 6 of said section provides that the municipal assembly shall have power to secure the general health of the inhabitants by any measure necessary, and to regulate * * * the carrying on of any business which may be dangerous or detrimental to the public health."

Provisions similar to those last mentioned will be found in charters of fourth-class cities. Section 9379, R. S. 1909. In discussing the extent of the authority thus conferred on that city, as applied to the business of plumbing, the court said (231 Mo. 119, 132 S.W. 609):

"Judge Sherwood, in State v. Schuchmann, 133 Mo. 120 [33 S.W. 35, 34 S.W. 842], applied the rule ejusdem generis and spoke of it as a ‘good rule of construction’; but in St. Louis v. Weitzel, 130 Mo. 619 , the same learned judge did not find that rule prevented his giving the words ‘regulate or suppress all occupations, professions and trades, not heretofore enumerated * * *’ (paragraph 5, sec. 26, art. 3, Charter of St. Louis) their full effect, so as to include the power to license the business of hauling garbage [citing authorities]. In our opinion, then, the city under its charter had the power to license and regulate the business of plumbing, unless"

--such ordinance was unconstitutional, which the court held was not the case. This case is later and apparently overrules the case of Independence v. Cleveland, supra, without mentioning it. We cannot reconcile the two cases. The Kansas City Court of Appeals in the case of Fulton v. Craighead, supra, does not mention this Smith Case.

It is suggested that the Cleveland Case and Smith Case supra, may be reconciled on the theory that the Cleveland Case deals with the right to levy and collect a license tax, while the Smith Case deals only with the right to regulate and license; in other words, that the one case deals with the taxing power of municipal corporations, and the other with the police power. It may also be said that the Craighead Case in the Kansas City Court of Appeals is also a case dealing...