Siemens v. Shreeve

Citation296 S.W. 415
Decision Date27 June 1927
Docket NumberNo. 27374.,27374.
PartiesSIEMENS v. SHREEVE, Chief of Police, et al.
CourtUnited States State Supreme Court of Missouri

Milton Schwind and R. E. Ball, both of Kansas City, for petitioner.

John T. Barker, City Counselor, and Wm. H. Allen, Asst. City Counselor, both of Kansas City, for respondents.

ATWOOD, J.

This case comes to the writer on reassignment. Petitioner, George M. Siemens, is an architect residing in Kansas City, Mo., and there practicing his profession. On May 20, 1926, he was convicted in the municipal court of said city on an information charging him with the violation, on or about May 19, 1925, of a city ordinance imposing a license or occupation tax on architects. Refusing to pay the fine imposed by the court, he was committed as by said ordinance provided, whereupon he filed petition for writ of habeas corpus in this court. Respondents waived the issuance of a formal writ and made return, and petitioner waived the production of his body before the court.

In their return respondents admit the detention of petitioner and seek to justify the same by pleading the conviction aforesaid, and showing that it was had under Ordinance No. 38141 of Kansas City, approved July 1, 1920, as amended by Ordinance No. 45745, approved June 6, 1923, which, among other like provisions relating to other occupations, imposes a tax as follows:

"The fee for such license shall be as follows: Architects employing not more than one draftsman, one year, $25.00. Employing more than one draftsman, one year, 850.90. * * *"

Petitioner filed answer to the return in which he invokes the due process clause (section 1 of the Fourteenth Amendment of the Constitution of the United States; also section 4, art. 2, of the Constitution of Missouri), which provides that all persons have a natural right to life, liberty, and the enjoyment of the gains of their own industry, and further urges that the ordinance is illegal and void because the city charter of 1908, which was effective from its adoption until April 10, 1926, in limiting and defining the city's power, did not specially name the occupation, calling, or profession of an architect as taxable by said city, that said city is not authorized by any general statute of Missouri to tax the same, and that said ordinance, in so far as it attempts or pretends to impose a license tax upon architects as a class or upon this petitioner as an architect, is void, illegal, and invalid, and of no force or effect, and is in direct violation of the terms of section 8702, R. S. 1919, which provides:

"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."

Petitioner contends that the above statute, under the provisions of section 16, art. 9, of the Constitution, and section 1, art. 3, of the city charter, supersedes said ordinance and renders it invalid; while it is the position of respondents that said ordinance was enacted pursuant to city powers defined in the fourth clause of section 1, art. 3, of Kansas City's charter framed in 1908 under section 16 of article 9 of the Constitution of 1875, and is not affected by the provisions of the above statute. The parts of section 1, art. 3, of the charter, which are here referred to, are as follows:

"Section 1. All powers conferred upon the city by the charter or the general laws of the state of Missouri shall be exercised by ordinance, except as otherwise provided in this charter, and the mayor and common council shall have power and authority, by ordinance, not inconsistent with the Constitution and laws of this state, and subject to the limitations expressed in this charter. * * *

"Fourth: To license, tax and regulate manufacturers". [here follow many specially named occupations ending with "common carriers," architects not being included], "and to license, tax and regulate all occupations, professions, trades, pursuits, corporations and other institutions and establishments, articles, utilities and commodities, not heretofore enumerated, of whatsoever name or character, like or unlike, and to fix the license tax to be paid thereon or therefor; and in the exercise of the foregoing powers, to divide the various occupations, professions, trades, pursuits, corporations and other institutions and establishments, articles, utilities and commodities into different classes. * * *"

It is conceded that the license tax here sought to be imposed is an attempted exercise of the taxing power, and not a police regulation. A city has no inherent power to tax. This power rests primarily in the state and may be delegated by constitutional provision or by statutory enactment. The authority to tax must be expressly granted or necessarily incident to the powers conferred, and in case of doubt the power is denied. 7 McQuillin on Municipal Corporations (Suppl.) § 987. The taxing power here sought to be exercised is not conferred upon Kansas City by any statute. If authority therefor exists, it must be found in the charter.

A city framing its own charter under the Missouri Constitution has been declared by the highest judicial authority in the land to be in a very just sense an imperium in imperio, and to the prescribed extent this is true. St. Louis v. Western Union Tel. Co., 149 U. S. 465, loc. cit. 468, 13 S. Ct. 990, 37 L. Ed. 810; Dillon on Munic. Corp. (5th Ed.) p. 112. A charter framed by a city for itself under direct constitutional grant of power so to do has, within the limits therein contemplated, the force and effect of one granted by an act of the Legislature when unrestrained by constitutional provision. Morrow v. Kansas City, 186 Mo. 675, 85 S. W. 572. Important restraining provisions, however, appear in clauses of section 16, art. 9, of the Constitution of 1875, the very section that permits cities having a population of more than 100,000 inhabitants to frame charters for their "own government" and under which this charter was framed, limiting the exercise of this power to the formation of such charters only as shall be "consistent with and subject to the Constitution and laws of the state," and "always be in harmony with and subject to the Constitution and laws of the state." Both the grant and the limitation must be given effect. If the limitation is construed to mean that the charter must be consistent with every provision of the Constitution and every law of the state, then the limitation simply nullifies the grant. Kansas City v. Oil Co., 140 Mo. 458, loc. cit. 470, 41 S. W. 943. On the other hand, to treat the charter as "out of, and beyond, all legislative influence," would be to nullify the express constitutional limitation. State ex rel. Kansas City v. Field, 99 Mo. 352, loc. cit. 355, 12 S. W. 802. Either construction would be extreme and unthinkable. Even if the imposition of this license tax be a matter purely local and municipal in character, as to which we express no opinion, we take it that any attempted charter grant of such power is subject to the above restraining clauses of the Constitution. The question is therefore whether or not Kansas City in framing its charter in 1908 in the face of and in apparent conflict with above section 8702, R. S. 1919, first appearing as section 1900, R. S. 1889, and ever since continued in full force and effect, transcended the scope of its powers thus granted and limited by the Constitution.

The above constitutional limitation was construed by Judge Gantt, speaking for this court in banc in Kansas City v. Bacon, 147 Mo. 259, loc. cit. 272, 48 S. W. 860, 863:

"`Consistent with' does not import exact conformity, but means substantial harmony with the principles of the Constitution and the general laws of the state."

Again, in Brunn v. Kansas City, 216 Mo. 108, loc. cit. 117, 115 S. W. 446, 449, Judge Lamm construed these constitutional provisions to mean that charters thus framed should not be "inimical to the general scope of our Constitution and laws."

We look, then, to "the general scope of the policy of our Constitution and laws" pertaining to this...

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