Rowland v. City of St. Louis, 30124

• Decision Date: 15 September 1959
• Docket Number: No. 30124,30124
• Citation: 327 S.W.2d 505
• Parties: Eugene R. ROWLAND (Plaintiff), Respondent, v. CITY OF ST. LOUIS, Missouri, a Municipal Corporation, Raymond R. Tucker Mayor of the City of St. Louis, Missouri, and Joseph T. Hayden, License Collector of the City of St. Louis, Missouri (Defendants), Appellants.
• Court: Missouri Court of Appeals

Page 505

327 S.W.2d 505

Eugene R. ROWLAND (Plaintiff), Respondent, v. CITY OF ST. LOUIS, Missouri, a Municipal Corporation Raymond R. Tucker Mayor of the City of St. Louis, Missouri and Joseph T. Hayden, License Collector of the City of St Louis, Missouri (Defendants), Appellants.

No. 30124.

St. Louis Court of Appeals, Missouri.

Sept. 15, 1959.

Charles J. Dolan, Acting City Counselor, Eugene P. Freeman, Associate City Counselor, St. Louis, for appellants.

Lewis, Rice, Tucker, Allen & Chubb, John Torrey Berger, Louis Glaser, St. Louis, for respondent.

RUDDY, Judge.

This is an action for a declaratory judgment against the City of St. Louis and the Mayor and License Collector of said city in their official capacities. From a decree and judgment in favor of the plaintiff the defendants have appealed.

Plaintiff disclaims any interest in being appointed as a City Surveyor, the equivalent to that of a County Surveyor. The real issues do not touch on any function of the City of St. Louis as a political subdivision, therefore, appellate jurisdiction is in this court. Holland v. City of St. Louis, Mo., 262 S.W.2d 1.

It is alleged in the petition of plaintiff that he is a land surveyor and civil engineer registered and licensed to do business in the State of Missouri and is a resident of the City of Kirkwood, Missouri, with an office in the City of Clayton, Missouri.

It is further alleged in said petition that plaintiff has been and is now desirous of doing surveying work within the City of St. Louis and made application to the License Collector of the City of St. Louis and was advised by him that he was without authority to issue such a license and plaintiff was told that said license must be obtained from the Mayor of the City of St. Louis; that 'by means of letters dated November 9, 1956, and November 14, 1956, plaintiff made application to the Defendant Mayor of the Defendant City for a license which would allow him to do surveying work within the limits of the Defendant City.'

It is further alleged that on December 6, 1956, the attorney for the plaintiff received a letter from the Administrative Assistant to the Mayor of the City of St. Louis informing the plaintiff that he could 'be appointed a City Surveyor only upon the condition that the said plaintiff established his residence within the city limits of the Defendant City.'

It is then pleaded by plaintiff that he stood ready and able to fulfill all of the legal and reasonable requirements necessary to obtain the said surveying license and so advised the License Collector and Mayor of the City of St. Louis, but the said License Collector and Mayor of the City of St. Louis have repeatedly refused and still refuse to grant said license to the plaintiff or to appoint plaintiff as a City Surveyor for the sole and stated reason that plaintiff is not a resident of the City of St. Louis.

Plaintiff in his petition pleads Section 71.610 RSMo 1949, V.A.M.S., which prohibits a municipal corporation from imposing a license tax upon any business avocation, pursuit or calling if the said business avocation, pursuit or calling is not specially named as taxable in the charter of such municipal corporation.

The following provisions from the Charter, the Charter Schedule, and the Charter Scheme of the City of St. Louis are then pleaded in said petition:

Article XX, Section 1 of the Charter, which enumerates businesses and occupations specifically taxable by license.

Article XXV, Section 11 of the Charter, which reads as follows: 'City Surveyors.--The mayor may appoint any number of civil engineers as city surveyors for a term of four years, whose duties and powers shall be as provided by law in regard to county surveyors. Each city surveyor shall, when appointed, give bond to the city for fifteen thousand dollars, conditioned for the faithful performance of his duties. Such bond may be sued upon by any person injured by the official acts of such surveyor.'

Section 12 of the transitional Schedule provisions of the Charter providing for the continuance of terms of incumbents in the office of city surveyor under the new Charter.

Section 16 of the original Scheme of separation of governments of the City and St. Louis County, concerning city and county surveyors.

The plaintiff then pleads the following Sections of Article XIII of Chapter 13 of the Revised Code of the City of St. Louis:

'Sec. 86. License required.--No person shall engage in the business of surveying lands for the purpose of determining boundaries without first having obtained a license from the license collector. (Sec. 1505 of Ordinances of 1936.)

'Sec. 87. Application to be made to license collector; contents of application.--The application for a license to engage in the business of surveying lands for the purpose of determining boundaries shall be made in writing to the license collector, and shall state the name of the applicant, the place of business of the applicant, and the maximum number of draughtsmen employed by the applicant during the twelve months preceding the first of May of any year. (Sec. 1506 of Ordinances of 1936.)

'Sec. 88.--When city surveyor's license shall be issued; amount of fee; period of validity.--The license collector is hereby authorized and directed to issue one city surveyor's license to a person upon receipt of the sum of twenty-five dollars; provided, that the applicant has furnished sufficient evidence that he is a legally appointed city surveyor, and that the bond as required by section eleven article twenty-five of the Charter of the city, is in force and approved by the city counselor and the comptroller and filed in the city register's office.

'The license fee of twenty-five dollars shall cover the period of one year only and the license fee shall be renewed on the first day of May of each year. (Ordinance No. 41921.)

'Sec. 89. License to be displayed; plats, etc. to bear license number.--The certificate of the license provided for in this article shall be conspicuously displayed in the place of business of the licensee.

'All plats, drawings and maps, as prepared by the city surveyor which show the results of any survey where land boundaries are involved, shall have the number of the license certificate plainly affixed below the surveyor's seal. (Ordinance No. 41921.)'

It is further alleged in said petition 'That the Defendant City has refused to issue to the Plaintiff the license in question on the sole ground that the ordinances and statutes here and before cited, as interpreted by the Defendant City and the Defendant Mayor and the Defendant License Collector, do not permit a surveyor's license to be issued to persons who are not residents of the Defendant City.'

It was then alleged by plaintiff that the refusal of the defendants to issue a surveyor's license was unconstitutional, arbitrary, discriminatory and unreasonable.

Plaintiff's petition concludes with a prayer for declaratory and mandatory injunctive relief, specifically asking the court to find that 'as the occupation or business of surveying was not specifically listed in the charter of the Defendant, City of St. Louis, as being such an occupation or business upon which a license tax could be imposed, the Defendant City cannot lawfully license or tax the occupation or business of surveying.' That the refusal of the City of St. Louis and its Mayor and License Collector to issue a surveyor's license to the plaintiff because of non-residency is arbitrary, capricious, discriminatory, unconstitutional and void; 'that even if this court should find that the Defendant City does have the authority to license or tax the occupation or business of surveying, that under the Revised Code of the City of St. Louis, Article XIII, Sections 86 and 87, the Plaintiff is entitled to and should be issued a license to do surveying work within Defendant City, and that said Defendant License Collector of the Defendant City be ordered to issue the said license to the Plaintiff,' and that the court make such other and further orders as to the court may seem just and proper.

The defendants filed a motion to make more definite and certain a number of the paragraphs of the petition; a motion to strike the said paragraphs; and a motion to dismiss the petition for failure to state a claim upon which relief could be granted. All of the motions were overruled by the trial court. The defendants then filed an answer admitting the existence of Section 71.610 RSMo 1949, V.A.M.S., and Article XX, Section 1 of the Charter of the City of St. Louis and denied each and every other allegation set out in plaintiff's petition.

The only witness to testify in the case was the plaintiff, Eugene R. Rowland, who said he lived in Kirkwood, Missouri, and was an engineer and surveyor with an office in Clayton, Missouri. Plaintiff is licensed in this state as a registered engineer and as a registered surveyor. His license was obtained from the State Board of Registration for Architects and Engineers. He did some surveying work in the City of St. Louis approximately a year before he gave his testimony. On the day he performed the aforesaid work in the City of St. Louis he said 'I received a call from the Prosecuting Attorney's Office of the City of St. Louis threatening me, to put me in jail if I did it again.' He has not done any surveying work in the city since receiving this warning. He has had numerous requests to make surveys in the City of St. Louis since this incident. The work requested was to make property line surveys, financing surveys and also to submit bids on Federal projects.

Plaintiff never had any kind of license to do surveying work within the City of St. Louis. He said he did not have a general surveyor's license or a city surveyor's license. He testified that he went to the Office of the License Collector of the City of St. Louis and applied for a license to do surveying work within the limits of said city and on that...