Pierce City v. Hentschel

• Decision Date: 01 March 1919
• Citation: 210 S.W. 31
• Parties: PIERCE CITY v. HENTSCHEL.
• Court: Missouri Supreme Court

210 S.W. 31

PIERCE CITY v. HENTSCHEL.

Supreme Court of Missouri, Division No. 1.

March 1, 1919.

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

Proceedings by the City of Pierce City against G. F. Hentschel. There was a judgment for defendant, which was reversed and remanded by the Court of Appeals (180 S. W. 1027), which certified the case to this court. Judgment of the Court of Appeals reversed, and judgment of circuit court affirmed.

This case reaches us upon due certification by the Springfield Court of Appeals. Majority and minority opinions are before us.

In the municipal court of Pierce City the defendant was, in two cases, charged with violating two ordinances of that city, Ordinances Nos. 1399 and 1400. Upon a trial in the municipal court he won in each case, and the city appealed both cases to the circuit court of Lawrence county. There the two cases were consolidated and tried together. Defendant again won, and the consolidated case was taken, by appeal of the city, to the Springfield Court of Appeals. By the majority opinion of the Court of Appeals the judgment of the circuit court was reversed and remanded, but the case certified here as aforesaid.

In the trial in the circuit court the evidence consisted of the two ordinances, and agreed facts and testimony. Much of the agreed statement of facts may be considered useless, as the case turns upon a construction of the ordinances, and the power of the city to enact them. The first section of Ordinance No. 1399 reads:

"Section 1. That no person, firm or corporation shall engage in the business of installing electric lights or electric power of any sort in the city of Pierce City, or wire any house or building or other premises for like purposes, without having first procured a license from the city therefor, and shall pay for each license the sum of ten dollars ($10) per annum, such license to expire with the calendar year in which the same is issued."

And the first section of Ordinance No. 1400 reads:

"Section 1. No person, persons, firms or corporations shall carry on or engage in the plumbing business or trade within the corporate limits of the city of Pierce City without first having obtained a license therefor, and shall pay for such license the sum of ten ($10.00) dollars, which license shall expire at the end of the calendar year in which it is issued."

Other portions of the ordinance and other facts agreed to by the parties can be noted in the opinion, so far as required.

Theodore Alvord, of Pierce City, for appellant.

W. Cloud, of Pierce City, for respondent.

GRAVES, J. (after stating the facts as above).

I. It is quite clear from the ordinances that the city in requiring these licenses is levying a tax upon the occupation. In other words, there is created by these ordinances an occupation tax of $10 upon both plumbers and electricians. The wording of the ordinance so shows. Whilst in each ordinance, in other sections, there is found some regulatory matters, yet the city does not dispute the idea that it is providing for an occupation tax by these two ordinances. The sum demanded' would so indicate, in addition to the wording of the ordinance.

Pierce City is a city of the fourth class. Its powers are found in section 9399, R. S. 1909. This section does not specifically mention either plumbers or electricians, or the business of either. There is, however, at one place in said section, after a long enumeration of trades and avocations, where we find the words "and all other business, trades, and avocations whatever," which said clause is followed by this clause "and fix the rate of carriage of persons and wagonage, drainage, and cartage of property."

Under article 9, R. S. 1909, relating to "Cities and Towns under Special Charters," we find section 9580, 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."

This section is urged upon us by defendant, and discussed by the Court of Appeals. It is urged as a limitation upon the power of the city to fix a license tax upon these two occupations. This statute is in plain language, and it certainly does limit the power of cities to which it applies. It goes to the single question of taxation of occupation and business, but has no reference to regulations under the police power.

There was an evident purpose in this statute. It was a new section in R. S. 1889. See 1 R. S. 1889, page 509. It is there section 1900 of article 1 of chapter 31, entitled "Cities and Towns, Miscellaneous Provisions." It was not, when thus enacted in 1889, under the title of "Cities and Towns under Special Charters," but was applicable then to all municipal corporations, whether under general or special charter. The shift of position occurred ten years later in 2 R. S. 1899, as section 6256, c. 91, R. S. 1899, entitled "Cities, Towns and Villages," is made up of 23 articles. But two of these articles (7 and 23) were passed as revised bills. All others are the handiwork of the revision committee. Whilst this revision committee in 1899 placed the original section, as first enacted in 1889 as section 6256, under article 11, entitled "Laws Applying to Cities Organized under and Having a Special Charter," this act of the committee did not change the force and effect of the statute from what it was when first enacted. So too its position in the R. S. 1909 does not alter its meaning. In fact section 8086, R. S. 1909, provides as to former laws of a general nature, in such revision, that "so far as they are the same as those of prior laws, shall be construed as a continuation of such laws and not as new enactments."

A law as first enacted, with the provisions of which it originally formed a part, should be considered in ascertaining its meaning, rather than other laws with which it may be grouped in the Revised Statutes, Timson v. Coke Co., 220 Mo. 580, 119 S. W. 565; Paddock v. Railway Co., 155 Mo. 524, 56 S. W. 453; Aloe v. Ass'n, 164 Mo. 675, 55 S. W. 993. So that this section 9580, R. S. 1909, having been enacted as one of the general provisions of the law of municipal corporations, must be so construed, and, when so construed, it clearly places a limitation upon the power to tax occupations. It, however, has no reference to regulations which may be prescribed under the exercise of the general police power, if such power has been 'committed to the municipality by the state. It follows that this section 9580, R. S. 1909, must be reckoned with in the determination of this case.

II. The majority opinion of the Court of Appeals indicates that the judges concurring therein are of the opinion that Pierce City was without power to impose this tax as a condition precedent to a license, but they were impressed with the idea that this court had announced a different view in Ex parte Robert C. Smith, 231 Mo. 111, 132 S. W. 607. In this we think that they are mistaken. Judge Gantt clearly puts this case on the ground of a proper exercise of general police power in the city of St. Louis. At page 122 et seq. of 231 Mo., at page 610 of 132 S. W. he says:

"We regard the business of plumbing as so intimately connected with the public health and the comfort of the citizens that there ought not to be any doubt that its regulation falls within the power of the Legislature in the exercise of its police power. The ordinance does not restrain individuals from working as plumbers; it simply requires that the man who holds himself out to do this important work shall be fitted for it, and the ordinance imposes no unreasonable burden upon him. In this connection it need only be stated that it has been decided in various cases in this court that a charter power of a freehold city, like Kansas City and St. Louis, under our Constitution, has all the sanction of a legislative enactment by the Legislature. We are of the opinion that the ordinance was clearly within the powers of the city conferred upon it by its charter, and that it is perfectly reasonable regulation.

"That the fee in this case is a mere license fee, being $1 per year, we think is too obvious for any discussion. It is not a tax in any sense of the word, nor is it intended as such. Its amount on its face demonstrates that it is simply enough to cover the proper charges for the issuing of the license certificate. The ordinance was not intended as a revenue measure, and hence section 6256, Revised Statutes 1899, has no application to it."

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