State v. Ashbrook

• Decision Date: 20 February 1900
• Citation: 55 S.W. 627,154 Mo. 375
• Parties: STATE ex rel. WYATT v. ASHBROOK et al.
• Court: Missouri Supreme Court

55 S.W. 627

154 Mo. 375

STATE ex rel. WYATT v. ASHBROOK et al.

Supreme Court of Missouri.

February 20, 1900.

CONSTITUTIONAL LAW — DEPARTMENT STORES — LICENSE — POLICE POWER — TAXATION — STATUTES — VALIDITY — UNCERTAINTY.

1. Act May 16, 1899 (Acts 1899, p. 72) imposing a uniform license tax on merchants, etc., to be fixed by a board of commissioners, and requiring two-thirds of such tax to be paid into the city treasury and one-third to the state treasury as a condition to the issuance of a license to do business, and fixing a fine for its violation, neither tends towards the preservation of the public health, morals, safety, nor welfare, and hence cannot be sustained as a proper police regulation.

2. Such act is void as contravening Const. art. 10, §§ 1, 10, vesting the taxing power in the general assembly for state purposes, and in municipal corporations, under authority of the general assembly, for municipal purposes, and prohibiting the general assembly from imposing taxes on municipal corporations, or on the property or inhabitants thereof for municipal purposes.

3. Act May 16, 1899 (Acts 1899, p. 72), which divides merchandise into a certain number of classes, which are rearranged into groups, and prohibits any person, firm, or corporation employing more than 15 persons from selling any goods or merchandise of more than one of the several classes or groups, without paying a license of from $300 to $500, fixed by a board of commissioners for each city, and which is to be uniform only in the same city, violates Const. art. 10, § 3, declaring that all taxes for public purposes shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax, and that all taxes shall be levied and collected by a general law.

4. Act May 16, 1899 (Acts 1899, p. 72), which divides merchandise into a number of classes, which are rearranged into groups, and prohibits any person, firm, or corporation employing more than 15 persons from selling any merchandise of more than one of the classes or groups without first paying a license for each class or group, is void for uncertainty, since there is nothing to show whether the fee is to be exacted for classes or groups, nor the duration of the license to be issued.

5. Act May 16, 1899 (Acts 1899, p. 72), which divides merchandise into classes, which are rearranged into groups, and prohibits any person, firm, or corporation employing more than 15 persons from selling any merchandise of more than one of the classes or groups, in cities of 50,000 inhabitants or more, without paying a license, contravenes Const. art. 2, §§ 4, 30, declaring that no person shall be deprived of his property without due process of law.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Mandamus by the state, on the relation of John C. Wyatt, against Thomas R. Ashbrook, Rice D. Gilkey, and John F. Johnson, auditor, treasurer, and comptroller of the city of St. Joseph, to compel them to issue him a merchant's license to conduct a department store. From a decree for plaintiff, defendants appeal. Affirmed.

Culver & Phillip, for appellants. B. R. Vineyard and F. N. Judson, for respondent.

ROBINSON, J.

This is a proceeding by mandamus, commenced by the relator in the Buchanan circuit court, for the purpose of compelling the auditor, treasurer, and comptroller of the city of St. Joseph, the defendants herein, to issue to him a merchant's license to conduct a department store in said city. The defendants had refused to issue the license applied for unless the relator would first pay into the city treasury two-thirds and into the state treasury one-third of the amount required to be so paid by section 6 of what is known as the "Anti-Department Store Act," approved May 16, 1899 (Acts 1899, p. 72), in addition to the tax imposed by the general laws of the city for a merchant's license. In the alternative writ, which follows in detail the allegations of the petition therefor, the laws and ordinances of the city of St. Joseph prescribing the various requirements necessary to be followed in order to secure a merchant's license are set forth. The writ then shows that the relator complied with all those requirements in his application for a license; and it was refused by the defendants on the sole ground, as shown in the writ, that he had not paid into the state and city treasury the license fees required by the act referred to, in addition to the ad valorem tax required of all merchants under the general laws of the city, and which the relator has tendered in connection with his application. The writ further shows that in his application for the license the relator clearly indicated that he desired the license to conduct a department store within the city for the sale of five different classes or departments of goods as defined by said act. It shows that he intended to sell the goods at retail and through 20 clerks or employés engaged by him for that purpose; that the relator filed his application for the license desired by him with the defendant Ashbrook, as city auditor, on September 15, 1899, — 122 days after the passage and approval of the act in question, — ignoring its provisions, tendering the license fee under the general levy made by the city for taxes, and demanding of the defendants, and each of them, that they perform the acts required by the general laws and ordinances of the city where a merchant's license is applied for, and which are set forth in the alternative writ of mandamus. The alternative writ also shows that the license was refused by defendants solely on the ground that relator had not complied with the provisions of said act. For a return to the alternative writ, the defendants filed a demurrer, alleging as grounds therefor that the matters and things set forth in the alternative writ are not sufficient in law or equity to entitle the plaintiff to the relief asked for, or to authorize the issuing of a writ of mandamus. The court below overruled said demurrer, and in its decree specially held the act under consideration to be unconstitutional and void. The defendants declined to plead further, and the court thereupon rendered final decree for the plaintiff, and directed the issuance of a peremptory writ of mandamus, commanding the defendants, and each of them, to do and perform the acts and things required conditionally by the alternative writ, and which were necessary to be performed in the issuance of the license applied for by the relator. From this final decree, the defendants have appealed to this court.

The only question involved in this controversy is as to whether this act, known as the "Anti-Department Store Law," a brief synopsis of which is given below, is operative or constitutional. By section 1 of the act, all goods, wares, and merchandise in the cities to which it now applies are divided into 73 classes, and these classes are then rearranged into 28 groups or departments. By section 2 of the act, from and after 120 days after its passage it is made unlawful for any person or persons, firm, corporation, or association of persons to have on hand for sale, sell, or expose for sale, at retail, any goods, wares, and merchandise of more than one of these several classes or groups, without first having obtained a license therefor, as provided for in the act. By section 3 it is provided that during the 120 days from the passage of the act the board of officers of the city charged with the duty of issuing merchants' licenses, and after that a license commissioner for each city, to be appointed by the governor, are authorized to issue merchants' licenses. By a proviso in this section the act is limited in its application to such cities of the state as have or may hereafter have 50,000 inhabitants or more. By section 4 the applicant for license is required to state the class or group under which he proposes to conduct his business, and also state what additional class or group, or what additional article or articles in any class or group, he desires to keep or sell, and also the street number at which he proposes to conduct his business. By section 5 the board or license commissioner charged with the duty of issuing licenses is empowered to fix the sum to be paid for licenses required by the act, but which sum is not to be fixed at less than $300 nor more than $500 for every class or group, or for any particular article of any class or group named in the application, in addition to the principal business to be conducted by the applicant. The license fee thus fixed is to be uniform in each city. Section 6 prohibits the issuance of any license, until the applicant shall have paid into the city treasury two-thirds and into the state treasury one-third of the amount required to secure the license. Section 7 provides a punishment by imprisonment in the county jail for a term not exceeding one year, and the payment of a fine of not less than $100 nor more than $500, for the violation of any provision of the act, and makes each day's violation a new offense. Second 8 provides that the act "shall not apply to manufacturing establishments, warehouse or auction houses, or to any establishment where not more than fifteen persons are employed."

No question is made here by respondent as to the right of relator to compel by mandamus the issuance to him of the license applied for if the act known as the "Anti-Department Store Bill" is unconstitutional or inoperative, as declared by the circuit court in its disposition of the case. The duty of respondent being clearly ministerial where all the requirements of the law preliminary to acquiring a license have been complied with by relator, its issuance, if refused, was properly compellable by mandamus. And it might further be added that no question ought to be raised as to the character of the imposition levied by the act, notwithstanding it is called a "license fee," and the act...