The State ex rel. Wyatt v. Ashbrook

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

55 S.W. 627

154 Mo. 375

THE STATE ex rel. WYATT v. ASHBROOK et al., Appellants

Supreme Court of Missouri

February 20, 1900

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

Culver & Phillip for appellants.

(1) The first objection made in the lower court was that "a license fee so large as to become an exaction for revenue, is a tax. A license may be imposed: 1, for regulation; 2, for revenue; 3, to give monopolies; 4, for prohibition," and it may be imposed for any one or all of these purposes at the same time. Cooley on Tax., p. 403. "A license is a privilege granted by the state usually on the payment of a valuable consideration, though this is not essential. The thing to be done may be something lawful in itself, and only prohibited for the purpose of a license; that is prohibited in order to compel the taking out of a license." Cooley on Tax., p. 406. "It is perfectly competent for the State to collect an ad valorem tax upon property used in a calling and at the same time impose a license tax on the pursuit, as a condition to the right to carry on the pursuit." Aurora v. McGannon, 138 Mo. 45; St. Joseph v. Ernst, 95 Mo. 367. (2) Another objection strenuously urged, as showing the unconstitutionality of this act, is that its provisions are limited to merchants employing more than fifteen persons, and therefore lacks uniformity in its application and is class legislation in violation of section 53, article IV of the Constitution of Missouri. It must be admitted that this objection is well taken, provided, the distinction made by the legislature between those merchants employing over fifteen persons and those employing fifteen persons or less is an arbitrary and unnatural one. The elaboration of this point involves the discussion of the questions as to whether or not such legislation as this is wise or unwise, beneficial or detrimental; whether or not a department store is an evil or a blessing to the community where located and the public generally and whether or not the policy of this State, as declared by the Legislature in this respect, has any foundation in reason and justice, or is "legislative will run mad." This court held an ordinance of the city of St. Louis providing for the payment of a license by hotels and boarding houses and defining boarding houses and hotels to be "a house where persons are furnished with either board or lodging or both, and having more than four bedrooms for the use of guests," valid and constitutional affirming the decision of the St. Louis Court of Appeals. St. Louis v. Bircher, 76 Mo. 431; s. c. 7 Mo.App. 169. (3) The objection made to this act and apparently most relied on is that it is vague, indefinite and uncertain in its provisions and incapable of enforcement because it does not provide what length of time a license issued thereunder shall run. We can only say as to this point that the Legislature apparently intended that when a department store had once taken out the license required by this act, that it should have the right to conduct its store thereunder so long as it continued in business. Like an attorney at law, or a doctor of medicine, the license is issued for an indefinite time and is good until revoked.

B. R Vineyard for respondent; F. N. Judson of counsel.

(1) Mandamus will lie to compel an officer to discharge a ministerial duty. State ex rel. v. Smith, 104 Mo 661; State ex rel. v. Oliver, 116 Mo. 188; State ex rel. v. Chase, 42 Mo.App. 343. And mandamus will likewise lie where the aggrieved party has a clear legal right with no adequate remedy at law. State ex rel. v. St. Louis, 145 Mo. 577. (2) Mandamus will lie to compel the issuance of a license, where all the requirements of law have been complied with. State ex rel. v. Meyers, 80 Mo. 601; State ex rel. v. Ruark, 34 Mo.App. 325; Bean v. County Court, 33 Mo.App. 635; State ex rel. v. Baker, 32 Mo.App. 98; St. Louis v. Weitzel, 130 Mo. 620. (3) A license fee, beyond that required for the purposes of regulation, and so large as to constitute an exaction mainly for revenue, is a tax. City v. Boatmans Ins. Co., 47 Mo. 150; City v. Ernst, 95 Mo. 366; City v. Spiegel, 75 Mo. 145; City v. Corrigan, 18 Mo.App. 214; Kansas City v. Grush, 151 Mo. 128; R. S. 1889, sec. 1334. (4) The power of taxation in this State must be exercised directly by the Legislature or directly by counties or other municipal corporations, acting under legislative grant through their governing bodies. The power of taxation is legislative, and can not be delegated to ministerial agencies. Munday v. Radway, 43 N. J. L. 339; State v. Koster, 38 N. J. L. 308; East St. Louis v. Wehrung, 50 Ill. 29; Kinmundy v. Mahan, 72 Ill. 462; State ex rel. v. Mayor, 72 N.W. 639; Reelfoot v. Dawson, 36 S.W. 1041; Board v. Abbott, 34 P. 148; McCabe v. Carpenter, 36 P. 836; Inhabitants v. Allen, 39 A. 716; Bank v. Ridge, 62 Mo.App. 324; City v. Clemmons, 43 Mo. 395; City v. Clemons, 52 Mo. 133; Lammert v. Lidwell, 62 Mo. 188; Mathews v. City, 68 Mo. 119; Darling v. St. Paul, 19 Minn. 389; 13 Am. and Eng. Ency. of Law (1 Ed.), 531; 25 Am. and Eng. Ency. of Law, 79; Cooley on Tax. (2 Ed.), pp. 61, 62, 65; Cooley Const. Lim. (5 Ed.), 139-148; Walsh v. Denver, 53 P. 458; Ex parte Jones, 43 S.W. 513. (5) In so far as this imposition is a State tax, it is not uniform throughout the State, it being confined in its operations to the cities of St. Louis, Kansas City and St. Joseph. Nor is it uniform as a State or municipal tax throughout "the territorial limits of the authority levying the tax," in that the tax may be fixed at $ 500 in St. Joseph, $ 400 in Kansas City and $ 300 in St. Louis for each department operated. This lack of uniformity makes the license tax thus imposed unconstitutional. St. Louis v. Spiegel, 75 Mo. 145; St. Louis v. Spiegel, 90 Mo. 587; Ex parte Sing Lee, 96 Cal. 354; Kansas City v. Grush, 151 Mo. 128. (6) The act lacks uniformity in its application, not only in the license fee to be exacted, but in limiting its provisions to retail merchants, and to those retail merchants employing more than fifteen persons, and in excluding manufacturing establishments, warehouses and auction houses from its penalties. It is also clearly a species of class legislation, and violates sec. 53, art. IV of the Constitution of Missouri, inhibiting the passage of "any special law granting to any individual any special right, privilege or immunity." The act in question fixes an arbitrary and unnatural distinction between different kinds of merchants and between merchants of the same class, and is therefore void. State v. Thomas, 138 Mo. 100; State v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 405; State v. Loomis, 115 Mo. 307; State ex rel. v. Hermann, 75 Mo. 340; Lippman v. People, 175 Ill. 101; Frorer v. People, 141 Ill. 171; Braceville v. People, 147 Ill. 66; State v. Gardiner, 51 N.E. 136; Ex parte Jones, 43 S.W. 513; State v. Conlon, 65 Conn. 478; Hannibal v. M. & K. Tel. Co., 31 Mo.App. 23; In re Sam Kee, 31 F. 680; Ex part Sing Lee, 96 Cal. 354; Schmalz v. Wooley, 39 A. 539. (7) The act in question is violative of section 30 of article II of the Constitution, which provides that "no person shall be deprived of life, liberty or property without due process of law." People v. Gilson, 109 N.Y. 399; State v. Loomis, 115 Mo. 313; State v. Julow, 129 Mo. 173. The respondent and all others proposing to operate a department store at retail, employing more than fifteen clerks, must pay the enormous license fees provided in the act, while the wholesale merchant, and the retail merchant employing only fifteen clerks, engaging in the same kind of business, is exempted from its provisions. Thus is the relator deprived of the liberty "to freely buy and sell as others may." In re Jacobs, 98 N.Y. 98; People v. Warden, 157 N.Y. 126; Millett v. People, 117 Ill. 294; Eden v. People, 161 Ill. 304; Frorer v. People, 141 Ill. 184; Ex parte Kuback, 85 Cal. 274; State v. Goodwill, 33 W.Va. 179; Godcharles v. Wigeman, 113 Pa. St. 431; Com. v. Perry, 155 Mass. 117.

ROBINSON, J. Gantt, C. J., Brace and Valliant, JJ., concur; Burgess, J., concurs in the result; Marshall, J., specially. Sherwood, J., not being present at the hearing, takes no part in the decision. MARSHALL, J., concurring and dissenting.

OPINION

In Banc.

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 (Laws 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 these 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...