State ex rel. Transport Mfg. & Equipment Co. v. Bates

• Decision Date: 14 November 1949
• Docket Number: 41456
• Parties: The State of Missouri, at the Relation of Transport Manufacturing and Equipment Company, a Corporation, Relator, v. G. H. Bates, Director of Revenue of the State of Missouri, Ralph Copher, Collector of Revenue of the State of Missouri, and John H. Allison, Supervisor of Motor Vehicle Registration of the State of Missouri, Respondents
• Court: Missouri Supreme Court

224 S.W.2d 996

359 Mo. 1002

The State of Missouri, at the Relation of Transport Manufacturing and Equipment Company, a Corporation, Relator, v. G. H. Bates, Director of Revenue of the State of Missouri, Ralph Copher, Collector of Revenue of the State of Missouri, and John H. Allison, Supervisor of Motor Vehicle Registration of the State of Missouri, Respondents

No. 41456

Supreme Court of Missouri

November 14, 1949

Rehearing Denied December 12, 1949.

Original Proceeding in Mandamus.

WRIT MADE PEREMPTORY.

SYLLABUS

Original action in mandamus to compel the registration of a motor vehicle purchased outside the state upon which the use tax has not been paid. The act levying a use tax upon such motor vehicles did not violate the constitutional provision against more than one subject, but the exemption of buses having a seating capacity of ten passengers or more was arbitrary and invalid, and rendered the entire act void. The writ of mandamus should be made peremptory.

Hendren & Andrae by John H. Hendren and Henry Andrae for relator; Berryman Henwood of counsel.

(1) The Act in question contains more than one subject, as indicated by the title, and therefore the Act is violative of Section 23, Article III, of the Constitution of Missouri: 1 Cooley's Const. Lim. (8th Ed.), p. 296; 36 Cyc., p. 1029, n. 27; Witzman v. So. Ry. Co., 131 Mo. 612, 33 S.W. 181; State v. Borden, 164 Mo. 221, 64 S.W. 172; State v. Coffee Co., 171 Mo. 634, 71 S.W. 1011; State ex rel. v. Wiethaup, 231 Mo. 449, 133 S.W. 329; State v. Rawlings, 232 Mo. 544, 134 S.W. 530; State v. Gordon, 233 Mo. 383, 135 S.W. 929; State v. Hurley, 258 Mo. 275, 167 S.W. 965; State v. Sloan, 258 Mo. 305, 167 S.W. 500; State v. McEniry, 269 Mo. 228, 190 S.W. 272; State v. Crites, 277 Mo. 194, 209 S.W. 863; State ex rel. v. Gideon, 277 Mo. 356, 210 S.W. 358; Vice v. Kirksville, 280 Mo. 348, 217 S.W. 97; State ex inf. v. Imhoff, 291 Mo. 603, 238 S.W. 122; Southard v. Short, 8 S.W.2d 903; State ex rel. v. Walker, 326 Mo. 1233, 34 S.W.2d 124; State ex rel. Becker, 329 Mo. 1041, 47 S.W.2d 781; City of Columbia v. P.S.C., 329 Mo. 38, 43 S.W.2d 813; Sherrill v. Brantley, 334 Mo. 497, 66 S.W.2d 529; Fidelity Adjustment Co. v. Cook, 339 Mo. 45, 95 S.W.2d 1162; Hunt v. Armour & Co., 345 Mo. 667, 136 S.W.2d 312; Lbr. & Mfg. Co. v. Ginsburg, 347 Mo. 119, 146 S.W.2d 604. (2) The use tax imposed by the Act on certain motor vehicles is not uniform because other motor vehicles of the same class are exempted from the payment of the use tax, in violation of Section 3, Article X, and Section 2, Article I, of our state constitution, and in violation of Section I, Amendment XIV of the Constitution of the United States. City of St. Louis v. Spiegel, 75 Mo. 145; City of St. Louis v. Spiegel, 90 Mo. 587; Kansas City v. Grush, 151 Mo. 128, 52 S.W. 286; State ex rel. Ashbrook, 154 Mo. 375, 55 S.W. 627; State v. Baskowitz, 250 Mo. 82, 156 S.W. 945; Kroger Co. v. St. Louis, 341 Mo. 62, 106 S.W.2d 435; City of Cape Girardeau v. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040; City of Washington v. Wash. Oil Co., 346 Mo. 1183, 145 S.W.2d 366. (3) The enforcement of the Act against relator and others in the same situation would deprive them of their property without due process of law, in violation of Section 10, Article I of the state constitution, and Amendment V and Section 1, Amendment XIV, of the Constitution of the United States. 2 Story on the Constitution (5 Ed.), secs. 1950, 1951; State v. Julow, 129 Mo. 163; State ex rel. v. Ashbrook, 154 Mo. 375, 55 S.W. 627; Kroger Co. v. St. Louis, 341 Mo. 62, 106 S.W.2d 435.

J. E. Taylor, Attorney General, Arthur M. O'Keefe and Robert R. Welborn, Assistant Attorneys General, for respondent.

(1) The act of the 64th General Assembly, found in Laws of Missouri, 1947, Volume II, pages 431 to 436, inclusive, does not violate the requirements of Section 23 of Article III of the Constitution of Missouri, 1945. The act in question is presumed to be constitutional. Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543; State ex rel. Lorantos v. Terte, 324 Mo. 402, 23 S.W.2d 120; Forgrave v. Buchanan County, 282 Mo. 599, 222 S.W. 755. (2) The constitutional provision relating to titling of legislative acts is liberally construed. Sec. 32, Art. IV, Constitution of 1865; Sec. 28, Art. IV, Constitution of 1875; Sec. 23, Art. III, Constitution of 1945; State v. Miller, 45 Mo. 495; Thomas v. Buchanan County, 330 Mo. 627, 51 S.W.2d 95; State ex rel. Garvey v. Buckner, 308 Mo. 390, 272 S.W. 940; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543. (3) Application of constitutional provision to act in question. Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543; City of St. Louis v. Tiefel, 42 Mo. 578; Edwards v. Business Men's Assur. Co., 350 Mo. 666, 168 S.W.2d 82; Asel v. City of Jefferson, 287 Mo. 195, 229 S.W. 1046; State ex rel. Wolfe v. Bronson, 115 Mo. 271, 21 S.W. 1125; Thomas v. Buchanan County, 330 Mo. 627, 51 S.W.2d 95; Sec. 23, Art. III, Constitution of 1945; 129 A.L.R. 222; 153 A.L.R. 609; Henneford v. Silas Mason Co., 300 U.S. 577, 81 L.Ed. 814, 57 S.Ct. 524; Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 85 L.Ed. 888, 61 S.Ct. 586; Brown v. State, 323 Mo. 138, 19 S.W.2d 12; Sec. 30, Art. IV, Constitution of 1945; Secs. 8382(c), 8367, R.S. 1939; Laws 1945, p. 1194; Laws 1947, pp. 380, 387. (4) The tax imposed by Section 11412(c) of the act in question does not violate Section 3 of Article X or Section 2 of Article I of the Constitution of Missouri, 1945, or Section 1 of the Fourteenth Amendment to the Constitution of the United States. Sec. 3, Art. X, Constitution of 1945; Sec. 2 of Art. I, Constitution of 1945; Sec. 1, Fourteenth Amendment, Constitution of United States; State ex rel. Jones v. Nolte, 350 Mo. 271, 165 S.W.2d 632; 51 Am. Jur., sec. 173, p. 230; Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22; State ex rel. McClung v. Becker, 288 Mo. 607, 233 S.W. 54; Brashear Freight Lines v. Public Service Comm., 23 F.Supp. 865; Stebbins v. Riley, 268 U.S. 137, 69 L.Ed. 884, 45 S.Ct. 424; State v. Peterson, 159 Minn. 269, 198 N.W. 1011, 114 A.L.R. 855; Sec. 5728, R.S. 1939; Cape Girardeau v. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040. (5) If the exemption complained of renders the act invalid the exemption should be considered void and the act should remain in effect. Fairley v. Duluth, 150 Minn. 374, 185 N.W. 390, 32 A.L.R. 1258; State ex rel. Tolerton v. Gordon, 236 Mo. 142, 139 S.W. 403; State ex rel. McDaniel v. Schramm, 272 Mo. 541, 199 S.W. 194. (6) Enforcement of the use tax against relator will not deprive relator of its property without due process of law in violation of Section 10 of Article I of the Constitution of Missouri, 1945 and the Fifth and Fourteenth Amendments to the Constitution of the United States. Powell v. Maxwell, 210 N.C. 211, 186 S.E. 326; State Tax Comm. v. General Trade Co., 233 Iowa 877, 10 N.W.2d 659; Banner Laundering Co. v. State Bd. of Tax Adms., 297 Mich. 419, 298 N.W. 73.

OPINION

Conkling, J.

This original action in mandamus presents to us the question of the constitutionality of the statute imposing a 2% use tax on motor vehicles required to be registered in Missouri, and upon which the 2% sales tax was not paid to the state. Laws of Missouri, 1947, Vol. II, pages 431 to 436, particularly Section 11412. Relator's petition prayed our writ requiring respondents to issue to it a Certificate of Title for a truck-tractor purchased by it in North Carolina. Relator's petition was taken by respondents as and for the alternative writ. Respondents filed their return. Relator then filed a motion for judgment on the pleadings.

Relator, an Illinois corporation doing business in North Kansas City, Missouri, purchased the truck-tractor in and accepted delivery at Henderson, North Carolina. It caused the vehicle to be driven to Missouri for use on Missouri highways. It later made application to respondents for a Certificate of Title and tendered the proper fees. No sales tax was paid to the State of Missouri. The vehicle was not registered in any other state. Respondents refused to issue the Certificate of Title and demanded payment of the use tax as provided in the above Act. Relator refused to pay that tax.

Relator challenges the validity of the statute with these main contentions, (1) that the Act contains more than one subject, in violation of Section 23 of Article III of the Constitution, and (2) that the use tax imposed is not uniform because other motor vehicles (those "having a seating capacity of ten passengers or more") by the Act are exempt from the tax in violation of Section 3, Article X of the Constitution.

The Act in question repeals and re-enacts five sections of the Sales Tax Act; Section 11412 transfers from the vendor to the State Director of Revenue the duty to collect sales taxes on motor vehicles; Subsection (c) of Section 11412 levies an additional use tax for the use of the state highways upon motor vehicles required to be registered in Missouri; Subsection (d) of Section 11412 exempts from the use tax any motor vehicle upon which the sales tax has been paid to Missouri; and the Act provides that the payment of either a sales tax or a use tax is a condition precedent to the right of an owner to be issued a Certificate of Title for a motor vehicle. No general use tax was enacted.

Relator contends the Act contains "two unrelated incongruous subjects, first, the sales tax on the purchase price of motor vehicles purchased in this state; and, second, a use tax on motor vehicles purchased outside this state but acquired for use on the highways of this state". Relator's position is that the Act violates the Constitution "in attempting to engraft a use tax upon the sales tax and to make the provisions for the use tax a part of the sales tax...