Springfield City Water Co. v. City of Springfield

• Decision Date: 09 October 1944
• Docket Number: 39038
• Parties: Springfield City Water Company, a Corporation, Appellant, v. The City of Springfield, Missouri, a Municipal Corporation, and Herschel E. Bennett, Commissioner of Revenue for said City
• Court: Missouri Supreme Court

182 S.W.2d 613

353 Mo. 445

Springfield City Water Company, a Corporation, Appellant, v. The City of Springfield, Missouri, a Municipal Corporation, and Herschel E. Bennett, Commissioner of Revenue for said City

No. 39038

Supreme Court of Missouri

October 9, 1944

Appeal from Greene Circuit Court.

Affirmed.

Neale Newman & Wampler and W. D. Tatlow for appellant.

(1) The sole charter power of the city to levy a tax based on the gross receipts is Sec. 6609, Par. XVII, R.S. 1939. (2) By making the classification in Paragraph XVII without any provision for a division or separation, and in the same section and in the next paragraph in the concluding part thereof expressly providing in detail for such separation and division, "abundantly shows that the mind of the lawgiver was directed to the subject," and when the power to subdivide was intended to be exercised it is expressly so provided and when it was withheld it is not so expressed. This has been directly decided in exactly parallel cases dealing with the identical subject -- an occupation tax -- under exactly similar statutes. St. Louis v Boatmen's Ins. & Trust Co., 47 Mo. 150; Kroger Grocery & Baking Co. v. St. Louis, 106 S.W.2d 435; Kansas City v. J.I. Case Threshing Mach. Co., 337 Mo. 913, 87 S.W.2d 195. (3) Those cases apply the rule that the expression of one thing is the exclusion of another. This is an ancient canon for the construction of statutes, and has been applied by the Missouri court in numerous cases, a few of which are as follows: Ex parte Arnold, 128 Mo. 256; State ex rel. v. Taylor, 220 Mo. 618, 119 S.W. 373; In re Oppenstein, 289 Mo. 412, 233 S.W. 440; Brueninger v. Hill, 277 Mo. 239, 210 S.W. 67; State ex rel. v. McElhinney, 315 Mo. 731, 286 S.W 951; State ex rel. v. Seibert, 123 Mo. 424, 27 S.W. 624; Kansas City v. Mercantile Mut. B. & L. Assn., 145 Mo. 50, 46 S.W. 624; Taylor v. Pullen, 152 Mo. 434, 53 S.W. 1086; Schlaflay v. Baumann, 341 Mo. 755, 10 S.W.2d 363; State ex rel. K.C. Power & Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; State ex rel. Donnell v. Osborne, 347 Mo. 469, 147 S.W.2d 1065; State ex inf. v. Sweaney, 270 Mo. 685, 195 S.W. 714. (4) It is a cardinal rule of construction that every word, clause, sentence and section of an act must be given some meaning, unless it is in conflict with the legislative intent. State v. Wipke, 345 Mo. 283, 133 S.W.2d 354. Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W.2d 620; State ex rel. K.C. Power & Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; Johnson v. Kruckemeyer, 224 Mo.App. 351, 29 S.W.2d 730. (5) And where the language of the statute is plain and unambiguous it must not be construed. It must be given effect as written. St. Louis Amusement Co. v. St. Louis County, 347 Mo. 456, 47 S.W.2d 667; State ex rel. v. Lucas, 348 Mo. 1153, 153 S.W.2d 10; St. Louis Rose Co. v. Unemployment Compensation Comm., 348 Mo. 1153, 159 S.W.2d 249; State ex rel. v. Phillips Petroleum Co., 349 Mo. 360, 160 S.W.2d 764; State ex rel. v. Hughes, 173 S.W.2d 877; State v. Hallenberg, 341 Mo. 771, 108 S.W.2d 398. (6) The express power to classify and subdivide the two hundred or more businesses named in Paragraph XVIII of said Section 6609 by necessary implication prohibits the reclassification of the comparatively few utility companies named in Paragraph XVII of said section. (7) The express power to classify and subdivide the two hundred or more businesses named in Paragraph XVIII necessarily refers to the power to tax as well as the power to regulate. The difference in the various businesses so named, apparent on the face of said paragraph, implies the power to classify without an express provision, as is expressly and directly held in a case much leaned on by respondents. St. Charles v. Schulte, 305 Mo. 124, 264 S.W. 654. (8) The express power to classify, given in said Paragraph XVIII, cannot be read out of the statute or its legal effect minimized by construing Paragraph XIX, which contains no such express provision. Paragraph XIX of said section is a catch all provision, naming certain activities that hardly rises to the dignity of a business, and contains a much broader power, to wit, the power to suppress, and a prohibition against either regulating or taxing certain activities. Whatever may be the proper construction of Paragraph XIX, it sheds no light on the proper construction of Paragraph XVII. This has been directly decided by the Court en Banc in an exactly parallel case. State ex rel. inf. v. Sweaney, 270 Mo. 685, 195 S.W. 714. (9) The collection of an occupation tax, based upon the gross receipts of the respective companies as accurately measures the value of the right or privilege to conduct the respective businesses as does the valuation of their respective tangible properties. The constitutional provision, Sec. 3 of Art. X, applies with equal force to both the physical property and an occupation tax. This is expressly so decided in the case much relied upon by the respondents in the trial court. St. Charles v. Schulte, 305 Mo. 124, 264 S.W. 654; Kansas City v. J.I. Case Threshing Mach. Co., 337 Mo. 913. (10) It is also directly held in those cases that Paragraph XVII supra, is solely a revenue measure, as well as in Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281. (11) The Supreme Court of the United States in a very recent case has dealt with a very similar question. Davis Warehouse Co. v. Bowles, 64 S.Ct. 474, 88 L.Ed. 379. (12) Paragraph XVII of the charter clearly classifies public utilities for the purpose of taxation, by whatever standard they may be judged. (13) This court has directly held in a similar situation, that Paragraph XVII of the charter classifies these utilities for the purpose of levying an occupation tax. State ex rel. v. Cairo Bridge & Terminal Co., 340 Mo. 190, 100 S.W.2d 441. (14) The classification made by Paragraph XVII of the charter in the instant case is the one which is mandatorily required by the constitutional provision. Sec. 3 of Article X. Village of Beverly Hills v. Schulter, 130 S.W.2d 532. (15) The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not therefore what a law includes that makes it special, but what it excludes. Laclede Power & Light Co. v. St. Louis, 182 S.W.2d 70. (16) It is important to keep clearly in mind that this is solely a revenue measure. St. Charles v. Schulte, 305 Mo. 124, 264 S.W. 654; Kansas City v. J.I. Case Threshing Machine Co., 337 Mo. 913; Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281; Edmonds v. St. Louis, 156 S.W.2d 619. (17) The question of the propriety of a classification, measured by Section 3, Article X, is largely one for the Legislature. The courts may not declare a particular classification unreasonable and violative of said Section 3, Article X, unless the classification made cannot be justified on any reasonable grounds. Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22. (18) The Legislature may not classify by characteristics or qualities which might distinguish individuals unless that distinction applies to the particular matter under consideration. Ballentine v. Nester, 350 Mo. 58, 164 S.W.2d 378. (19) The occupation tax is limited to two per cent of the gross receipts. Sec. 7442, R.S. 1939; International Harvester Co. v. Dept. of Treas., 64 S.Ct. 1019. (20) The sale of property made and completed in Missouri is subject to the tax, even though as a part of the same transaction it is to be transported in interstate commerce to another state. American Bridge Co. v. Smith, 179 S.W.2d 12.

Alfred Page, Theodore Beezley, W. L. Vandeventer and J. Weston Miller for respondents.

(1) Under Section 3, Article X, Missouri Constitution, it has always and uniformly been held that it is constitutional legal, and proper to classify for the purposes of taxation. State ex rel. Daily Record v. Hartmann, 253 S.W. 991; Village of Beverly Hills v. Schulter, 130 S.W.2d 532. (2) A municipal corporation has power to divide a taxable class, that is, a class taxable under its charter, into subclasses and tax these subclasses differently. Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281; St. Charles ex rel. Palmer v. Schulte, 305 Mo. 124, 264 S.W. 654; Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22, 62 A.L.R. 95. (3) Under Subsection XVII of Sec. 6609, R.S. 1939 specific right to "license and tax" water companies, as well as other specifically named companies. In the exercise of this power, the city had the right to classify the various businesses named for the purpose of license taxes. Union Electric Co. v. St. Charles, 181 S.W.2d 526; Ex parte Asotsky, 5 S.W.2d 22; Ballentine v. Nester, 164 S.W.2d 378; Thompson v. St. Louis-S.F. Ry. Co., 69 S.W.2d 936. (4) The provision of subsection, or Paragraph XVIII, of Section 6609, Revised Statutes of Missouri, 1939, providing that as to the many kinds and character of businesses and occupations therein listed that the city, in exercising its powers given under such paragraph, might: "Divide the various occupations, professions, trades, pursuits, corporations, and other institutions and establishments, articles and commodities into different classes," is not by implication or otherwise any limitation upon the powers and rights of the respondent city under subsection XVII. Edmonds v. St. Louis, 156 S.W.2d 619; Joplin Supply Co. v. Smith, 167 S.W. 649; State ex rel. v. Public Serv. Comm., 34 S.W.2d 486; State ex rel. Kelsey v. Smith, 75 S.W.2d 832. (5) Even where a Charter does not give express authority to classify one kind of merchant from another kind of merchant, it is now held that the power to so classify exists. In other words, held that when the charter power is simply to tax "merch...