State ex rel. People's Motorbus Co. of St. Louis v. Blaine

• Citation: 58 S.W.2d 975,332 Mo. 582
• Decision Date: 21 March 1933
• Docket Number: 32666
• Parties: State ex rel. the People's Motorbus Company of St. Louis, a Corporation, v. James G. Blaine, Judge of City Court No. 1, City of St. Louis, a Municipal Corporation; William E. Duffy, City Marshal of St. Louis, and Julius T. Muench, City Counselor of St. Louis
• Court: United States State Supreme Court of Missouri

58 S.W.2d 975

332 Mo. 582

State ex rel. the People's Motorbus Company of St. Louis, a Corporation, v. James G. Blaine, Judge of City Court No. 1, City of St. Louis, a Municipal Corporation; William E. Duffy, City Marshal of St. Louis, and Julius T. Muench, City Counselor of St. Louis

No. 32666

Supreme Court of Missouri

March 21, 1933

Provisional rule discharged.

Carter Jones & Turney for relator.

(1) The tax attempted to be imposed by Ordinance No. 39354 has the fundamental characteristics of a property tax, and regardless of the fact that it is denominated a license tax in the ordinance, it may well be held to be a property tax. Crow v. State, 14 Mo. 262; Thompson v. Kreutzer, 112 Miss. 165; Fruth v. Charleston, 75 W.Va. 456; Trans-Continental Oil Co. v. Emmerson, 298 Ill. 394; Barnes v. Jones, 139 Miss. 675; Eaton v. Boston C. & M. Railroad Co., 51 N.Y. 504; Thompson v. J. D Thompson Carnation Co., 203 Ill.App. 525; In re Comingore, 96 F. 552; In re Crook, 219 F. 979; 4 Cooley on Taxation (4 Ed.) sec. 1676; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Dawson v. Kentucky Distilleries, 255 U.S. 288; City of Brookfield v. Tooey, 141 Mo. 619; Eastern Gulf Oil Co. v. Kentucky State Tax Comm., 17 F.2d 394; Royal Mineral Assn. v. Lord, 13 F.2d 227; Barnes v. Jones, 103 So. 773; Thompson v. McLeod, 112 Miss. 383; Large Oil Co. v. Howard, 163 P. 537; In re Skelton Lead & Zinc Companies Gross Production Tax, 81 Okla. 134; Pittsburg Rys. Co. v. Pittsburg, 211 Pa. 479; Bromley v. McCaugh, 280 U.S. 124; Anderson v. McNeir, 16 F.2d 970; Astor v. Marritt, 111 U.S. 202; State v. Davis, 33 A. 439; State v. Lawrence County 92 N.W. 16; In re Moore's Estate, 128 N.W. 198; United States v. Anjerhead, 46 F. 664; Hightower v. State, 72 Ga. 482; Easley Town Council v. Pegg, 63 S.C. 98; State v. Freeman, 93 S.E. 13; State v. Burns, 133 S.C. 238; State v. Campbell, 141 S.C. 428; Rafferty v. New Brunswick Fire Ins. Co., 18 N. J. L. 480; Lee v. Vacuum Oil Co., 7 N.Y.S. 426; Viquesney v. Kansas City, 305 Mo. 488. (2) If the tax is held to be a property tax, then it is invalid because it violates Section 4, Article X of the Constitution of Missouri, providing that all property subject to taxation shall be taxed in proportion to its value, and also violates Section 3, Article X of the Constitution of Missouri, requiring that all taxes shall be uniform on the same class of subjects. Const. of Mo., sec. 4, Art. X; Const. of Mo., sec. 3, Art, X; State v. Shipman, 290 Mo. 65; State v. Gehner, 319 Mo. 1048; Bridge & Transit Co. v. Blaser, 318 Mo. 384. (3) If the tax is held to be an excise or license tax, then it is invalid for the reason that it attempts to impose a tax upon a business avocation, pursuit or calling not specifically named as taxable in the charter of the city of St. Louis. Sec. 7287, R. S. 1929; Para. 24, sec. 1, Art. I of the Charter of the City of St. Louis; Art. XX of the Charter of the City of St. Louis. (a) The city of St. Louis has only such powers of taxation as are granted to it by its charter, and these are subject to the limitation that its charter shall be subject to and in harmony with the Constitution and laws of the State of Missouri, and the provisions of the Constitution of the United States. Albers v. St. Louis, 268 Mo. 349; St. Louis v. Independent Ins. Co., 47 Mo. 446; St. Louis v. Associated Firemen's Ins. Co., 47 Mo. 168; St. Louis v. Anchor Life Ins. Co., 47 Mo. 176. (b) The Charter of the city of St. Louis confers no power upon the city, in any event, to impose such a tax as Ordinance No. 39354 attempts to impose upon the relator. Charter of the City of St. Louis (Revised Code 1926), sec. 1, par. 1, Art. I; Charter of the City of St. Louis (Revised Code 1926), sec. 1, par. 24, Art. I; Charter of the City of St. Louis, Art. XX; St. Louis v. Laughlin, 49 Mo. 558; Siemens v. Shreeve, 296 S.W. 415; Keane v. Strodtman, 323 Mo. 165; State ex rel. v. C. R. I. & P. Ry. Co., 138 S.W. 555. (c) The storage of gasoline under the facts in this case constitutes a business or pursuit of the relator, and the city of St. Louis has no authority to impose an excise or license tax on such business. Sec. 7287, R. S. 1929; Ordinance No. 30423, City of St. Louis; Revised Code, city of St. Louis, sec. 1157-a; 1 Bouvier's Law Dictionary, Rawle's Revision, p. 273; Foster & Creighton Co. v. Graham, 285 S.W. 570; State v. Pioneer Creamery Co., 245 S.W. 361; Reynolds Tobacco Co. v. Lexington, 205 S.W. 592. (4) Ordinance No. 39354 is invalid because paragraph 24, section 1, Article I of the Charter of the city of St. Louis, permits but one license tax on the business of relator, and such license tax already is in force, being a tax of three per cent on relator's gross revenues. Ordinance No. 30911, city of St. Louis; Revised Code of St. Louis 1926, Sec. 1645; Charter of the City of St. Louis, sec. 1, par. 24, Art. I; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281; State ex rel. Pearson v. Railroad Co., 196 Mo. 523.

Julius T. Muench and Oliver Senti for respondents.

(1) The city of St. Louis has power to assess, levy and collect taxes for all general and special purposes on all subjects or objects of taxation. Charter of St. Louis, Para. 1, Sec. 1, Art. I. (a) The taxes which the city is authorized to levy on all objects and subjects of taxation include excise taxes. Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 285. (b) The privilege of storing gasoline is an object of taxation. Foster & Creighton v. Graham, 154 Tenn. 412, 285 S.W. 570, 47 A. L. R. 971; Jerome H. Sheip & Co. v. Amos, 130 So. 699. (2) An excise tax on gasoline used does not violate the due process or equal protection clause of the Fourteenth Amendment. Bowman v. Continental Oil Co., 256 U.S. 642, 65 L.Ed. 1139. (a) Since an excise tax levied under the authority of a State on all gasoline used does not violate the Fourteenth Amendment, an excise tax imposed on only that part which is stored does not violate the Fourteenth Amendment. (b) Ordinance 39354 imposes an excise tax, and, since it operates alike upon all to whom it applies, it does not violate Section 3, Article X of the Missouri Constitution. Viquesney v. Kansas City, 266 S.W. 700; Bowman v. Continental Oil Co., 256 U.S. 642, 65 L.Ed. 1139. (c) The tax imposed by Ordinance 39354 is an excise tax and not a property tax. (d) Excise taxes do not fall within the requirement of the Constitution that all property subject to taxation shall be taxed in proportion to its value. Viquesney v. Kansas City, 266 S.W. 700; Foster & Creighton v. Graham, 154 Tenn. 412, 285 S.W. 570, 47 A. L. R. 971; J. H. Sheip & Co. v. Amos, 130 So. 699. (e) Excise taxes do not fall within the requirements of Section 6, Article X of the Constitution of Missouri. State ex rel. v. Henderson, 160 Mo. 217; State v. Parker Dist. Co., 236 Mo. 219. (3) Ordinance 39354 does not violate Paragraph 24, Section 1 of Article I of the Charter. (4) An excise tax does not fall within the requirement of the Constitution that property shall be taxed in proportion to its value. Viquesney v. Kansas City, 266 S.W. 700. (a) It is not double taxation to impose an ad valorem tax on property used in a business, and also to impose a license tax on the use of the property. Cooley on Taxation (4 Ed.) sec. 232. (b) The storage of gasoline within the city of St. Louis and outside of the city of St. Louis is severable, and it is feasible to enforce Ordinance 39354 as to gasoline stored in St. Louis. Bowman v. Continental Oil Co., 256 U.S. 642, 65 L.Ed. 1139. (c) If Ordinance 39354 is susceptible of two constructions, one of which renders it constitutional and the other renders it unconstitutional, the courts will adopt the former. Weisberg v. Boatmen's Bank, 280 Mo. 204.

OPINION

Frank, J.

Original proceedings in prohibition to prohibit respondent, James G. Blaine, Judge of City Court No. 1 of the city of St. Louis, from proceeding with the trial of a cause pending in said court, wherein the relator, The People's Motorbus Company, is charged with storing gasoline and other motor fuel on which a storage tax is levied by Ordinance 39354 of said city, and refusing to file with the comptroller of said city a sworn statement of the amount of gasoline and other motor fuel so stored, as provided in said ordinance.

Relator seeks to prohibit respondent, judge, from proceeding further with said cause on the ground that the ordinance upon which the charge is based is void.

The pertinent provisions of the ordinance read as follows:

"Section 1157F. No person, firm or corporation shall store gasoline or other motor fuel in quantities in excess of ten gallons without first having obtained a license therefor from the license collector.

"Section 1157G. Every person, firm or corporation defined in Section 1157F, shall pay the license collector a quarterly annual fee on the 16th day of January, April, July and October of each year for the period of three months, ending respectively on the last days of the preceding December, March, June and September, the amount of said quarterly license to be determined at a sum equal to one cent for every gallon of gasoline, or other motor fuel stored by such person, firm or corporation during the preceding period of three months and ending as aforesaid, provided, however, that if a license fee of one cent per gallon upon the storing, sale or transportation, shall have been paid by a previous storer, vender or transporter, such payment shall be sufficient, the intention being that the fee shall be paid but once.

"Section 1157H. Every person, firm or corporation storing gasoline, as defined in section 1157F, shall keep an accurate record of all receipts of gasoline and other motor fuel, showing the number of gallons received and on or before...