State ex rel. v. Broeker

• Decision Date: 06 November 1928
• Docket Number: No. 20496.,20496.
• Parties: THE STATE OF MISSOURI, AT THE INFORMATION OF WM. F. BLOEBAUM, PROSECUTING ATTORNEY OF ST. CHARLES COUNTY, MISSOURI, RELATOR, v. HENRY BROEKER, RESPONDENT.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

11 S.W.2d 81

THE STATE OF MISSOURI, AT THE INFORMATION OF WM. F. BLOEBAUM, PROSECUTING ATTORNEY OF ST. CHARLES COUNTY, MISSOURI, RELATOR, v. HENRY BROEKER, RESPONDENT.^*

No. 20496.

St. Louis Court of Appeals. Missouri.

Opinion filed November 6, 1928.

Appeal from the Circuit Court of Warren County. — Hon. Emil Roehrig, Judge.

AFFIRMED.

Wm. F. Bloebaum, Prosecuting Attorney of St. Charles County, Missouri, Wm. F. Achelpohl and Wm. Waye, Jr., for appellant.

(1) The city of St. Charles, Missouri, a city of the third class, had a legal right to impose an occupation license tax on painting and paper-hanger contractors. And ordinance No. 881, of said city, imposing an occupation license tax on respondent as a painting and paper-hanger contractor was legally imposed. Section 8322, R.S. 1919. (2) The occupation license taxes imposed upon the various occupations in the city of St. Charles, including that imposed upon respondent as a painter and paper-hanger contractor, by the provisions of ordinance No. 881, are paid into the general revenue fund of said city and said tax is a revenue measure and said occupation license taxes are taxes within the meaning of section 8230 of the Revised Statutes of Missouri 1919. Lamar v. Adams, 90 Mo. App. 35; City of St. Charles ex rel. Palmer v. Schulte, 305 Mo. 124; Viquesney v. City of Kansas City et al., 305 Mo. 488; American Manufacturing Co. v. City of St. Louis, 270 Mo. 40; State v. Freehold Investment Co., 305 Mo. 88; State ex rel. Dike v. Kingsbury, 105 Mo. App. 22; In re Zook's Estate, 296 S.W. 778; 37 C.J., p. 168, sec. 3; 37 C.J., p. 169, sec. 6; 3 C.J., p. 232; Louisiana Citizens Bank v. Parker, 192 U.S. 73. (3) The lower court in its decision and opinion failed to draw a distinction between a license fee imposed purely as a police regulation and one imposed for revenue only. Where the license fee is imposed purely as a police regulation under the police power it is not a tax within the meaning of the law, but where it is imposed purely for revenue under the power to raise revenue, it is a tax within the meaning of the law. And in this case the occupation tax is imposed as a revenue measure and is a tax. Authorities cited under point 2; State v. Distilling Co., 236 Mo. 219; State ex rel. v. Hudson, 78 Mo. 302. (4) Even though respondent possessed all the qualifications prescribed by statute for the office of mayor of the city of St. Charles he was ineligible to be elected to said office because he was in arrears for certain unpaid city taxes at the time of his election and he cannot hold the office of mayor because of his failure to pay said taxes. Section 8230. Revised Statutes of Missouri 1919. (5) The Legislature has a right to fix the eligibility for public office and they have a right to say, as they did say in section 8230, Revised Statutes of Missouri 1919, that no person shall be elected or appointed to any office who shall at the time be in arrears for any unpaid city taxes. State ex rel. Thomas v. Williams, 99 Mo. 291: State ex rel. Snyder v. Neurman, 91 Mo. 445; State ex rel. Weed v. Meek, 129 Mo. 431; State ex inf. v. Page, 140 Mo. 501. (6) The lower court erred in holding that when section 8230 (the disqualifying statute was passed) occupation taxes were unknown to cities of the third class. The facts are that both section 8230 (the disqualifying statute) and section 8322 (the statute authorizing the licensing and taxing of occupations) were passed at the same time as a part of the same bill by the same Legislature. Section 8230 was section 25 of that bill and section 8322 was section 107 of said bill. Session Laws of 1893, page 65 and following.

Osmund Haenssler, Theodore C. Bruere, Hensley, Allen & Marsalek and William H. Allen for respondent.

(1) The object of all rational construction of statutory enactment is to seek out and effectuate the purpose and intent of the Legislature in enacting the same. This is the great cardinal rule to which all others are incidental and subordinate. De Hart v. School District No. 39, 214 Mo. App. 651; Consolidated School District v. Hackman, 302 Mo. 558; Grier v. Railway, 286 Mo. 523; Hannibal Trust Co. v. Elzea, 315 Mo. 485; State ex rel. Tadlock v. Moneyham, 212 Mo. App. 573; Grimes v. Reynolds, 94 Mo. App. 576. (2) The word "taxes," used in section 8230, Revised Statutes 1919, being a common word, is, by the command of our statute as well as the decisions of our courts, to be taken in its "plain or ordinary and usual sense." Sec. 7058, R.S. 1919; Grier v. Railway, 286 Mo. 523; Clark v. Railroad, 219 Mo. 524; Betz v. Railway Co., 314 Mo. 390; State ex rel. Clayton v. Bland, 301 Mo. 131; State ex rel. Koeln v. Y.M.C.A., 259 Mo. 233; 36 Cyc. 1114. (3) In construing section 8230, Revised Statutes 1919, providing that "no person shall be elected or appointed to any office who shall at the time (he) be in arrears for unpaid city taxes," the word "taxes," when taken in its plain, usual and ordinary acception, as it must be regarded as having been used in the statute, means ordinary, direct property taxes, levied upon real and personal property by a municipality, and does not include a mere license fee or "license tax" imposed by the municipality for the privilege of carrying on a business therein. Trenton v. Humel, 134 Mo. App. 595; State ex inf. Sutton v. Fasse, 189 Mo. 532; State ex inf. Barrett v. Clements, 305 Mo. 297; Castilo v. State Highway Commission, 312 Mo. 244; 37 Cyc. p. 711, Subdiv. C; 3 McQuillin on Municipal Corporations, p. 2207, sec. 992; 17 R.C.L. 474, 475. (4) While a license fee imposed by a city may sometimes be regarded as a tax, in the generic and broad sense of that term there is, properly speaking, and as usually and generally understood, a clear distinction between such license charges and "taxes" in the ordinary sense of that term. 37 Cyc, p. 711, Subdiv. C; 3 McQuillin on Municipal Corporations, p. 2207, sec. 992; 17 R.C.L. 474, 475; Trenton v. Humel, 134 Mo. App. 595; City of Savannah v. Cooper, 131 Ga. 670; Distilling Co. v. City of Chicago, 112 Ill. 19; Conklin Lumber Co. v. Chicago, 127 Ill. App. 103. (5) In construing a statute the legislative intent is to be determined from a general view of the whole act with reference to the subject-matter to which it applies and the particular topic under which the language in question is found. 36 Cyc 1128; Consolidated School District v. Hackman, 302 Mo. 558. (6) Sections of the same act, relating to the same general subject and enacted at the same time, must be read and construed together in interpreting the act and parts thereof. And statutes in pari materia, whether enacted at the same time or not, should be read and construed together in order to arrive at the intention of the lawmaking body. Palmer v. Omer, 295 S.W. 123; State v. Davis, 284 S.W. 465; State ex rel. Jones v. Chemical Works, 249 Mo. 702; State ex rel. v. Public Service Commission, 259 Mo. 704. (7) The Legislature, in effect, defined the term "taxes," as used in section 8230, Revised Statutes 1919, as not including licenses, i.e., license fees or license taxes, when in a subsequent section of this same act, section 8273, Revised Statutes 1919, it deemed it necessary to specifically designate "licenses" immediately following the word "taxes" in order to authorize the council of a city of the third class to impose and collect such licenses. Sec. 8273, R.S. 1919. (8) The use of the words "city taxes" in other sections of this same act is such as to show that the Legislature used these words throughout the act in their usual and popular meaning, i.e., as applying only to ordinary municipal property taxes, levied and collected in the usual way, and not to license impositions. Secs. 8267, 8268, 8278, R.S. 1919. (9) In view of the fact that there is no assessment of this so-called license tax, but the statute provides that no license shall be issued until the amount prescribed therefor shall be paid to the city collector, respondent, by failing to take out a license, could not be held to be in arrears for unpaid city taxes within the meaning of section 8230, supra. Sec. 8278, R.S. 1919. (10) To interpret the word "taxes" or the words "city taxes" in section 8230, supra, so as to include every form of license, license fee or license tax, as contended for by appellant, would clearly violate the rule that a statute will not be construed so as to produce absurd, harsh or unreasonable results. Stack v. General Baking Co., 283 Mo. 396; Darlington Lumber Co. v. Railroad, 216 Mo. 658; Ruter v. Carothers, 223 Mo. 631; Vassen v. Monckton, 308 Mo. 641; Corrigan v. Kansas City, 211 Mo. 608; Beeber v. Smith, 201 Mo. App. 86; Hanna v. Aetna Life Insurance Co., 217 Mo. App. 261; State ex rel. Browning v. Juden, 264 S.W. 101; State v. Duckworth, 297 S.W. 150; 25 R.C.L., pp. 1018 to 1921, sections 256, 257.

BENNICK, C.

This is a proceeding by quo warranto, instituted at the information of the Prosecuting Attorney of St. Charles county, in his official capacity, against Henry Broeker, as respondent, having for its purpose the ouster of the latter from the office of mayor of the city of St. Charles, a city of the third class. After a hearing upon an agreed statement of facts, the court rendered its judgment, denying the writ, from which relator has duly appealed.

Without particular regard to the contents of the several pleadings in the case, all of which are in conventional form, it will suffice to say that the controversy between the parties centers wholly around the effect to be given that portion of section 8230, Revised Statutes 1919, applicable to cities of the third class, providing that "no person shall be elected or appointed to any office who shall at the time be in arrears for any unpaid city taxes, or forfeiture or defalcation in office." It appears from the agreed statement of facts that respondent, in private life, was engaged in business as a painting and paper-hanging contractor, in...