Ploch v. City of St. Louis

• Citation: 138 S.W.2d 1020,345 Mo. 1069
• Decision Date: 02 April 1940
• Docket Number: 36761
• Parties: Victor P. Ploch, Appellant, v. City of St. Louis, a Municipal Corporation, and Fred A. Renick, License Collector of the City of St. Louis
• Court: Missouri Supreme Court

138 S.W.2d 1020

345 Mo. 1069

Victor P. Ploch, Appellant, v. City of St. Louis, a Municipal Corporation, and Fred A. Renick, License Collector of the City of St. Louis

No. 36761

Supreme Court of Missouri

April 2, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Affirmed.

Williams Nelson & English and R.F. O'Bryen for appellant.

(1) The ordinance which defendants propose to enforce requires plaintiff to pay an illegal cigarette tax under penalty of seizure and forfeiture of his property and under penalty of successive daily fines of from five to one hundred dollars for each day's violation. Injunction is, therefore, the proper remedy to stop such threatened enforcement. Glencoe Lime & Cement Co. v. St. Louis, 341 Mo. 689 108 S.W.2d 144; Sylvester Coal Co. v. St. Louis, 130 Mo. 329. (2) In determining the right of a city to collect taxes the following rules must be observed: (a) When the tax-gatherer puts his finger on the citizen he must also put his finger on the law permitting it. Leavell v Blades, 237 Mo. 700. (b) A city has no inherent power to tax. Siemens v. Shreeve, 296 S.W. 415. (c) The authority to tax must be expressly granted or necessarily incident to the powers conferred. Siemens v. Shreeve, 296 S.W. 415. (d) In case of doubt the power of the city to tax is denied. Siemens v. Shreeve, 296 S.W. 415. (3) The ordinance taxing the sale of cigarettes is unconstitutional and void and its enforcement should be enjoined because it purports, directly or indirectly, to levy, impose and collect a tax upon the sale at retail of or charge for tangible personal property, namely, cigarettes, the sale of which is taxed by the State under the provisions of the Sales Tax Act. Section 47 of the Sales Tax Act (Laws 1937, p. 568) forbids the city from levying, imposing or collecting such tax. Article IX, Sections 23 and 25 of the Missouri Constitution require the charter and ordinances of the city of St. Louis to always be in harmony with the laws of this State. Laws 1937, p. 568, sec. 47; Leavell v. Blades, 237 Mo. 700; Kroger Grocery & Baking Co. v. St. Louis, 106 S.W.2d 435; Siemens v. Shreeve, 296 S.W. 415; State v. Kinsey, 282 S.W. 439; St. Louis v. Dreisoerner, 243 Mo. 223; Brookfield v. Tooey, 141 Mo. 619; R. S. 1929, sec. 7596. (4) The enforcement of the ordinance taxing the sale of cigarettes by the city of St. Louis should be enjoined because it is a special law violative of Article IV, Section 53, Subsection 32, of the Missouri Constitution. There is no reasonable basis for classifying the business of cigarette merchant separately from the business of other merchants or the business of selling other commodities. All merchants could be taxed under a general law which could be made applicable, and the only classification of merchants permitted by Section 7596, Revised Statutes 1929, is a classification in proportion to sales. Expressio unius exclusio alterius est. Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1; Kroger Grocery & Baking Co. v. St. Louis, 341 Mo. 62, 106 S.W.2d 439; Kansas City v. Grush, 151 Mo. 128. (5) The enforcement of the ordinance taxing the sale of cigarettes sought to be enjoined authorizes the license collector or his representatives to search for unstamped cigarettes and upon discovery thereof to forthwith seize the same and such cigarettes are thereupon declared forfeited to the city and to be sold, all without requiring any warrant, notice to the owner or possessor, or court proceeding, and the ordinance, therefore, violates Article II, Section 11, and Article II, Section 30 of the Missouri Constitution and the Fourteenth Amendment to the Constitution of the United States. Webser's New International Dictionary (2 Ed.), Unabridged; Bouvier's Law Dictionary (Baldwin's Ed.), 1932; State v. Williams, 14 S.W.2d 435; Wilcox v. Phillips, 260 Mo. 679, 169 S.W. 55; Hider v. Sharp, 301 Mo. 625, 257 S.W. 113.

Edgar H. Wayman, Louis A. McKeown and Andrew J. Reis for respondents.

(1) The right to exemption from taxation is never inferred. St. Louis v. Boatmen's Ins. & Trust Co., 47 Mo. 150; Trenton v. Humel, 134 Mo.App. 595. (2) Section 47 of the Sales Tax Act does not apply to license taxes. Laws 1820, 1879, ch. 295, p. 141; Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700; Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281; Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22, 62 A. L. R. 95; St. Louis v. Smith, 342 Mo. 317, 114 S.W.2d 1017; State ex rel. Mo. Portland Cement Co. v. Smith, 338 Mo. 409, 90 S.W.2d 405; Kresge Co. v. Bluefield, 183 S.E. 601. (3) The method of taxation adopted by Ordinance 41575 does not conflict with the power granted by Section 7596, Revised Statutes 1929, and the city charter. Art. XXV, Sec. 2, St. Louis Charter; Village of Beverly Hills v. Schulter, 130 S.W.2d 532. (4) The ordinance is not a local or special law prohibited by Article IV, Section 53, Subsection 32, of the Missouri Constitution. Hines v. Hook, 89 S.W.2d 52, 338 Mo. 114; Thompson v. St. L.-S. F. Ry. Co., 69 S.W.2d 936, 334 Mo. 958; Ex parte Asotsky, 319 Mo. 811, 5 S.W.2d 22. (5) The ordinance does not violate the constitutional provisions in regard to unlawful search and seizure or due process of law. Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W.2d 447; 26 U.S.C. A. 387; Gethner v. Salomon, 157 Ill.App. 196; R. S. 1929, sec. 4525-g-33g; Laws 1933, Ex. Sess., p. 77, sec. 30-g; Laws 1935, p. 267, sec. 1; St. Louis v. Baskowitz, 201 S.W. 870. (6) The ordinance does not establish a rule of evidence. State v. Buck, 120 Mo. 479; State v. Shelly, 64 S.W.2d 269; 26 U.S.C. A. 812. (7) The exemption of shipments made to another city or State for sale or use there does not discriminate against appellant. Ledon v. Hanemeyer, 121 N.Y. 179; Chicago, R. I. & P. Ry. Co. v. Petroleum Refining Co., 39 F.2d 629; Sedalia ex rel. v. Shell Petroleum Corp., 81 F.2d 193, 106 A. L. R. 1327; Sedalia v. Standard Oil Co. of Indiana, 66 F.2d 757; Bayside Fish & Flour Co. v. Gentry, 297 U.S. 422, 80 L.Ed. 772. (8) The subject matter of the ordinance is clearly expressed in the title, in accordance with Article IV, Section 13 of the St. Louis Charter. Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W.2d 447. (9) The ordinance imposes a license fee upon the occupation of selling cigarettes and does not violate Sections 3 and 4 of Article X of the Missouri Constitution. Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700; St. Charles ex rel. Palmer v. Schulte, 305 Mo. 124. (10) The power of the city to license, tax and regulate merchants includes the power to tax retailers of cigarettes. Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281; St. Charles ex rel. v. Schulte, 305 Mo. 124, 264 S.W. 654; Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22; Village of Beverly Hills v. Schulter, 130 S.W.2d 532. (11) The ordinance was an emergency measure and in any event is now valid. In re Corvey, 220 Mo.App. 602, 287 S.W. 879; State ex rel. v. Dillon, 75 Fla. 785, 79 So. 29; 2 McQuillin on Municipal Corporations, 577, sec. 702; State ex rel. Mulvoy v. Miller, 285 S.W. 504, 315 Mo. 53; State ex rel. Porterie v. Hunt, 182 La. 1073, 103 A. L. R. 9.

Sam C. Blair, John McCleary, John J. Cosgrove and John J. Manning, Jr., amicus curiae for Kansas City.

Appellant in his reply brief, on page 4, refers to Judge Leedy's opinion in the case of State ex rel. Missouri Portland Cement Company v. Smith, 338 Mo. 409, 90 S.W.2d 405, and says that: "He (Judge Leedy) makes it plain that the difference between the two taxes (Sales Tax Acts of 1933 and 1935) is that one is direct and the other indirect." Quoting the words of the court: "Unlike its predecessor the act in question (Sales Tax Act of 1935) imposes the tax directly upon a 'sale, service or transaction.'" Appellant illogically concludes that from this phraseology the court meant to infer that the 1933 Act imposed a tax indirectly on the sale of tangible personal property. Such is not the case, nor did the court so infer. The Sales Tax Act of 1933 directly imposes a tax upon a person engaging in the business of selling tangible personal property at retail, and fixes the rate of such taxation at one-half of one per cent of the gross receipts of any such person from the sale of tangible personal property. The tax is directly imposed upon the person and not upon the sale, either directly or indirectly; the sale in this instance is used merely as a measuring stick or guide as to the amount of tax a person engaged in the business of selling tangible personal property shall pay for the privilege of selling. This is the identical fact in the cigarette ordinance. The sale in the ordinance is used to measure, not the rate of the tax, but the total amount of the tax to be collected, and to fix such amount so that it will be in proportion to the total amount of sales made as provided in Section 7596, Revised Statutes 1929. On page 5 of appellant's reply brief, it is stated that: "Judge Leedy points out that the prior tax was imposed 'upon the privilege of engaging in the business,' in other words, an occupation tax." Granted. Appellant's further statements, however, cannot be conceded -- "That, of course, was an indirect tax." An indirect tax upon what? The term "occupation tax" is a tax levied on the privilege of carrying on a business or occupation. Licenses, 37 Corpus Juris, section 3, page 168. There is a clear distinction between . . . license fees or license taxes and ordinary taxes. Licenses, 37 Corpus Juris, section 6, page 169. If the tax is levied upon persons on account of their business it will be construed as a license or occupation tax, even though it is granted on the gross receipts of the business. 37 Corpus Juris, section 9, page 172. Where a tax...