Standard Oil Co. v. City of Moberly, 17018.

• Decision Date: 01 December 1930
• Docket Number: No. 17018.,17018.
• Citation: 33 S.W.2d 157
• Parties: STANDARD OIL CO. v. CITY OF MOBERLY.
• Court: Missouri Court of Appeals

33 S.W.2d 157

STANDARD OIL CO. v. CITY OF MOBERLY.

No. 17018.

Kansas City Court of Appeals. Missouri.

December 1, 1930.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

"Not to be officially published."

Action by the Standard Oil Company against the City of Moberly. From the judgment, both parties appeal. Case transferred from the Supreme Court, 23 S.W.(2d) 1004.

Affirmed.

Hunter & Chamier, of Moberly, for Standard Oil Co.

M. J. Lilly, Hulen & Walden, and W. B. Stone, all of Moberly, for City of Moberly.

ARNOLD, J.

This is an action to recover the sum of $3,226.67, paid by plaintiff to defendant in four installments, under an ordinance levying a tax of 1 cent a gallon on sales of petroleum products by wholesale oil stations in the city of Moberly, Mo.

The cause was tried without a jury, the court finding (1) the ordinance was void; (2) that plaintiff voluntarily made the first of the four payments in issue; and (3) that the remaining three payments were made under duress. Judgment was for defendant on the first payment and for plaintiff on the other three, in the total sum of $2,767.48. A separate motion for a new trial on behalf of each litigant was overruled, and each appealed to the Supreme Court. The petition alleges the ordinance therein pleaded is in contravention of the Fourteenth Amendment to Constitution of the United States and of sections 3, 4, and 11, art. 10, of the Constitution of Missouri. The answer is a general denial, together with an allegation that defendant has long since spent the funds involved. In its mandate now before us the Supreme Court finds defendant's motion for a new trial charged the court erred in holding the ordinance unconstitutional, and in its brief defendant assigns error on that ground, but this charge is not mentioned in defendant's points, and no mention is made of it in its argument; that defendant's brief states "the question of duress is the sole and only question to be determined." The mandate further calls attention to the fact that plaintiff in its brief states: "Judge Walker who tried this case, in a case (Moberly Oil Company v. City of Moberly) tried by him in the Randolph County Circuit Court a short time before this case was tried, held that the ordinance in question was void, and this case was tried by all parties concerned on the theory that the ordinance was unconstitutional and void. Since the payments were made under an admittedly void ordinance, the only question involved in this appeal is, whether or not the payments were involuntary and made under compulsion and duress."

Based upon the record, the Supreme Court (23 S.W.(2d) 1004) ruled appellant city abandoned its contention that the ordinance is valid, and that the court is without jurisdiction to review the case, and accordingly transfers the case to this court for consideration. As stated above, both parties have appealed, but upon the same record, and hence the two appeals will be considered together.

The cause was tried upon an agreed statement of facts, supplemented by testimony of witnesses and some documentary evidence. The stipulated facts are as follows:

"It is stipulated and agreed by and between the parties hereto, that the following facts shall be taken as evidence in the above cause, subject to the objection on the part of either party hereto, for relevancy, competency and materiality.

"That the plaintiff is an Indiana corporation, and since January 1, 1924, and prior thereto, was engaged in the business of selling, supplying and furnishing gasoline, naptha and other petroleum products in the City of Moberly, Missouri, and was there operating and running retail and wholesale oil and filling stations.

"That the defendant is a municipal corporation duly organized under the laws of Missouri as a city of the third class.

"That on the 21st day of January, 1924, the following ordinance was passed and adopted by the council of defendant city and on said date was approved by its mayor, Rolla R. Rothwell, and was duly published."

The caption of the ordinance in question is as follows:

"An ordinance providing for the licensing of and payment of a license tax by persons, firms or corporations, whether principal or agent, conducting or operating wholesale oil stations within the city of Moberly, Missouri, and providing penalties for violations of the terms of the ordinance and repealing certain conflicting ordinances."

It is further stipulated:

"The plaintiff made the following payments after the passage of said ordinance to the City Collector of Moberly, Missouri, and that the dates thereof and amounts and the period covered, are as follows:

                  Date.            Period Covered.          Amount
                May 9,   1924   Feb. March, April,   1924   $  506 21
                Sept. 4, 1924   May, June July,      1924    1,046 22
                Nov. 24, 1924   Aug. Sept. Oct.,     1924    1,119 43
                Feb. 1,  1925   Nov. Dec. 1924, Jan. 1925      601 83
                                                            _________
                  Total ..................................  $3,273 69
                

"Which sum of money has been demanded by plaintiff of defendant but no part thereof has been returned to plaintiff by defendant."

The second amended petition is in two counts, the first of which charges duress, and the second is bottomed on an alleged agreement. During the course of the trial plaintiff dismissed the second count and elected to stand on the first; hence this conflict is centered around the one question of duress. The parties agree as to this situation. As stated above, the answer was a general denial, and for affirmative defense it is alleged that all moneys paid by plaintiff to defendant at the times and on the dates mentioned in the second amended petition went into the treasury of said defendant and long since have been distributed and paid out according to law and the ordinances of defendant city. The cause was tried upon the issues thus made.

The ordinance introduced provides that every person, principal or agent, conducting a wholesale oil station in Moberly, Mo., should procure a license from the city clerk; that any store, building, stand, or other place of business, occupied by any person, whether principal or agent, engaged thereat in selling, supplying, or furnishing gasoline, naptha, motor spirits, or other liquid petroleum products, to garages, retail oil stations, or any person retailing same, should be construed to be a wholesale oil station; that such license would authorize the person to conduct a wholesale oil station, until the next succeeding quarter annual license paying date; that the license should be obtained four times each year, to wit, on the 16th of May, August, November, and February; that, before issuing the license, the person should pay to the clerk a license tax equal to 1 cent on every gallon of such products sold, supplied, or furnished during the three-month period ending on the last day of the month prior to obtaining such license; that the person conducting the wholesale oil station should keep an accurate record of sales of such products, and on the 7th day of May, August, November, and February, file with the collector a sworn statement showing such sales during the preceding quarter, and the collector was authorized to investigate the correctness of such return, and for such purpose should have access to the records of such station; that a failure to make such return, or the making of a false or fraudulent return, or the interference with the...