Red Arrow Garage & Auto Co. v. Carson City

• Decision Date: 06 May 1924
• Docket Number: 2626.
• Citation: Red Arrow Garage & Auto Co. v. Carson City, 225 P. 487, 47 Nev. 473 (Nev. 1924)
• Parties: RED ARROW GARAGE & AUTO CO. v. CARSON CITY.
• Court: Nevada Supreme Court

225 P. 487

47 Nev. 473

RED ARROW GARAGE & AUTO CO. v. CARSON CITY.

No. 2626.

Supreme Court of Nevada

May 6, 1924

Appeal from District Court, Ormsby County; G. A. Ballard, Judge.

Action by Carson City against the Red Arrow Garage & Auto Company.From a judgment for plaintiff, and from an order denying motion for new trial, defendant appeals.Affirmed.

Platt & Sanford, of Carson City, for appellant.

John M Chartz, City Atty., of Carson City, for respondent.

COLEMAN J.

This is an action to recover a judgment against the defendant, a corporation, in the sum of $200 alleged to be due plaintiff pursuant to an ordinance adopted by the plaintiff city imposing a license tax upon dealers in gasoline at the rate of 1 cent per gallon for each gallon of gasoline sold or delivered.The action was commenced in the justice's court, and after the answer was filed was pursuant to law certified to the district court.It was tried to the court upon an agreed statement of facts.The court rendered a judgment in favor of the plaintiff.A motion for a new trial having been denied, an appeal was taken from said order and the judgment.

It is agreed, inter alia, that both of the parties hereto are duly incorporated.It is also stipulated:

"That the city trustees did in March, 1922, pass two ordinances providing for license taxes under its charter.That one of said ordinances was general in its nature, and the other applied solely to the sale of gasoline."

It may be borne in mind that the special ordinance levying the gasoline tax is No. 167, and the general ordinance is No 168.

It is further stipulated that the special ordinance imposes a license tax of 1 cent per gallon for each gallon of gasoline sold or delivered within the plaintiff city; that gasoline had been sold by the defendant within said city since the adoption of said ordinance, and that it had neglected and refused to pay a license tax, as provided for in OrdinanceNo. 167.It is also stipulated that the defendant is engaged in the general public garage business, and as a part of such business sold and disposed of gasoline in the plaintiff city for several years prior to the adoption of OrdinanceNo. 167; that public garages in Nevada customarily sell and dispose of gasoline as a part of the garage business, and that during the period for which it is sought to recover the tax on the sale of gasoline the defendant had paid a license for conducting a garage business.

The charter of the city of Carson as amended (Stats. 1921, p 144) authorizes the city to impose a license tax upon numerous kinds of businesses.After enumerating many kinds of businesses upon which the plaintiff city is authorized to impose a license tax, it provides:

"And to fix and have collected a license tax on all trades, professions, and classes of business carried on in said city and not hereinbefore specified."

We think the foregoing statement sufficiently comprehensive to clearly present the points urged in behalf of the appellant.

The first point made in behalf of the contention that the judgment is erroneous is that no authorization can be found in the charter of the plaintiff city for the levying of a tax on the sale of gasoline.In support of this contention appellant invokes the general rule stated in 1 Dillon, Municipal Corporations (5th Ed.)p. 448, § 237, which reads:

"It is a general and undisputed proposition of the 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 accomplishment of the declared objects and purposes of the corporation, not simply convenient, but indispensable.

Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power denied.Of every municipal corporation the charter or statute by which it is created is its organic act.Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto.All acts beyond the scope of the powers granted are void.Much less can any power be exercised, or any act done, which is forbidden by charter or statute.These principles are of transcendent importance, and lie at the foundation of the law of municipal corporations."

As we read the brief of counsel for respondent it is conceded that the statements quoted are sound in principle.Accepting these statements as being correct statements of the law, let us consider the charter provision in question.

This provision, after enumerating a great number of kinds of businesses which shall be subject to taxation, contains the following:

"And to fix and have collected a license tax on all trades, professions, and classes of business carried on in said city and not hereinbefore specified."

To the layman this provision would be clear and unequivocal, needing no interpretation, elucidation, amplification, or consideration.Why not so in the realm of jurisprudence?To the layman it no doubt appears at a glance that this general provision could have but one meaning, purpose, or object, for the discovery of which no prolonged or profound search should be necessary, namely, to make subject to a tax levy any business, trade, or profession which through oversight had been omitted from the list enumerated.In construing statutes, constitutions, and ordinances it is a cardinal rule that, where the language used is doubtful, the court must look to the intention of the provision to ascertain its meaning.We do not think the provision in question in the least uncertain, nor can the intention of the Legislature be in doubt.The sole purpose of the Legislature was to enable the city to bring all kinds of business within its taxing power.This is clear from the language used.Indeed, it would be quite remarkable if such were not the case.Why should we presume that the Legislature sought to favor any kind or class of business or profession?To presume such thing would be to impute to the Legislature improper motives.Not to impute such motives leads irresistibly to the conclusion that it meant to authorize the levying of a tax indiscriminately.We must presume the Legislature did not intend to favor any kind or class of business.But our attention is directed to the following rule:

"If the charter or statute enumerates the occupation or business which may be regulated and licensed, the enumeration, if on the whole such appears to be the legislative intent, is exclusive, and the municipality has no power to license or regulate occupations or businesses not embraced in the enumeration."2 Dillon, Municipal Corporations (5th Ed.)p. 448, § 237.

There is nothing in this section which justifies a different conclusion.It simply lays down the rule that, where the charter enumerates the various lines of business which shall be subject to taxation, such enumeration is exclusive, "if on the whole such appears to be the legislative intent."

But we are not left to our own inclinations and views in reaching this conclusion.The identical point here presented was disposed of in City of St. Louis v. Bowler,94 Mo. 630, 7 S.W. 434.The court in that case, in construing the phrase "all occupations, professions, and trades not heretofore enumerated, of whatever name or character," which followed the enumeration of various kinds of businesses, as does the sentence in question in the instant case, said:

"This language is so very comprehensive that no necessity exists to invoke the rule of ejusdem generis in the case at bar, if the language employed in the concluding words is to have accorded to it its usual signification."

To the same effect is City of St. Louis v. Baskowitz,273 Mo. 543, 201 S.W. 870.

The next point is that the sale of gasoline is incidental to and a part of the garage business, and defendant, having paid a license tax for the privilege of conducting the garage business, is not subject to the tax in question.We are clearly of the opinion that there is no merit in this contention.We may say that counsel for appellant cite cases in support of the contention that the sale of gasoline, in the circumstances, is a part of the garage business.We do not think they sustain the contention.We shall not undertake to distinguish the cases relied upon, as it would needlessly prolong this opinion, but come directly to a disposition of the point in hand.

If the contention of the appellant be carried to its logical conclusion, it might follow that there could be no such thing as imposing a license tax for the selling of any article independently of a general business.For instance, grocery stores in some places sell not only what are generally considered groceries, but articles of every character, including patent medicines, gasoline, near beer, high explosives, farming implements, firearms, and an innumerable list of wares.Yet the mere fact that a merchant who is conducting a grocery store under a license to do so sells and disposes of coffins and furniture does not constitute such articles groceries any more than would the selling of cigars and tobacco make such articles groceries.We think our idea is clearly expressed in Hewin v. Atlanta,121 Ga. 723, 49 S.E. 765, 67 L. R. A. 795, 2 Ann. Cas. 296, where it is said:

"If an occupation is so made up as to include two or more separate and distinct classes of business, each of which could be maintained as a separate business, that is, a business in the sense in which that term is above used, then, under the power to classify subjects of business for taxation, the municipal

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