The State ex rel. Asotsky v. Regan

• Citation: 298 S.W. 747,317 Mo. 1216
• Decision Date: 27 September 1927
• Docket Number: 28218
• Parties: The State ex rel. Max Asotsky and Frank Hilmes v. Charles W. Regan, City Clerk of Kansas City
• Court: United States State Supreme Court of Missouri

298 S.W. 747

317 Mo. 1216

The State ex rel. Max Asotsky and Frank Hilmes v. Charles W. Regan, City Clerk of Kansas City

No. 28218

Supreme Court of Missouri

September 27, 1927

Motion for Rehearing Denied September 27, 1927.

Alternative writ discharged.

R. R Brewster, Frank W. McAllister and James P. Aylward for relator.

(1) Under the Charter of Kansas City, the city clerk, in receiving and filing notices of referendum petitions in his office, acts in a ministerial capacity, and has no discretion with reference to receiving and filing said notices of referendum. Secs. 430 and 15, Charter; State ex rel. v Roach, 230 Mo. 445; State ex rel. v. Carter, 257 Mo. 77; State ex rel. Stokes v. Roach, 190 S.W 278. An ordinance requiring the payment of a one dollar registration fee, as a condition precedent to the carrying on of a business in the city, and levying an occupational stamp tax of twenty per cent on the retail sales price of cigarettes in packages sold in the conduct of such business, is not an emergency measure or ordinance "fixing any tax rate or assessment," within the meaning of that phrase used in the charter. Sec. 15, Art. 2, Article 12, and Sec. 87, Art. 4, Charter; Book v. Earl, 87 Mo. 251; State ex rel. v. Jaudon, 286 Mo. 191; Missouri Constitution, Art. X, sec. 4; City of Kansas v. Railroad Co., 81 Mo. 294; State ex rel. Koeln v. Lesser, 237 Mo. 318; Brown-Forman Company v. Kentucky, 217 U.S. 571, 54 Law Ed. 886; Kansas City v. Richardson, 90 Mo.App. 456; State ex rel. Thompkins v. Shipman, 290 Mo. 75; Wire Company v. Woolbrink, 275 Mo. 339; State ex rel. Tax Commission v. Crawford, 303 Mo. 52; State v. Seebold, 192 Mo. 720; State v. Dixman, 162 Mo. 1; State v. Distilling Company, 236 Mo. 219; Valle v. Fargo, 1 Mo.App. 344; Commerce Trust Company v. Lot Co. & Johnson, 208 Mo.App. 265; Webb v. Bidwell, 15 Minn. 483; Naylor et al. v. Board of Education, 288 S.W. 692; Shropshire v. Commission Farm Credit Co., 266 S.W. 614; People v. Noglel, 1 Cal. 232, 52 Am. Dec. 312. (3) The council cannot destroy the right of referendum, by attaching to an ordinance a pretended emergency clause. State ex rel. Westhues v. Sullivan, 283 Mo. 547; Fahey v. Hackman, 291 Mo. 381; State ex rel. v. Carter, 257 Mo. 52; State ex rel. Pollock v. Becker, 289 Mo. 660. (4) The ordinance under consideration permitting retail dealers of cigarettes in Kansas City an allowance of ten per cent discount on each tax stamp purchased from the city, and to receive a ten per cent profit out of such public funds on the amount of tax required to be paid by the consumer, is unconstitutional, null and void because the tax thereby attempted to be levied is not wholly laid for public purposes. Kawk v. Drainage District, 248 Mo. 384; State ex rel. v. Zeigenhein, 144 Mo. 289; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. St. Louis, 216 Mo. 47, 90. (5) An ordinance levying a twenty per cent occupation stamp tax on cigarettes sold in packages, and excluding from such tax other cigarette tobacco, cigars, chewing tobacco, and all other forms of tobacco, tobacco products and substitutes, is unreasonable, arbitrary, oppressive, and violates Section 3, Article X, of the Constitution of Missouri, requiring uniformity in taxation, and violates Article XIV, Section 1, of the Amendments to the Constitution of the United States, in that it deprives relators of their liberty and property without due process of law, and denies to them the equal protection of the laws. Gulf, C. & S. F. Railroad Co. v. Ellis, 165 U.S. 150, 41 Law Ed. 666; State v. Loomis, 115 Mo. 307; Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 33 Law Ed. 892.

John T. Barker, E. F. Halstead and Marcy K. Brown, Jr., for respondent.

(1) The ordinance is an emergency ordinance and immune from the referendum. The city clerk properly refused to accept referendum petitions asking a reference of such emergency ordinance, as he was compelled to assume the ordinance was what it purported to be, an emergency ordinance. Sec. 15, Art. II, Charter; State ex rel. v. Gordon, 251 Mo. 311; State ex rel. v. Becker, 289 Mo. 660; State ex rel. v. Sullivan, 283 Mo. 547; State ex rel. v. Roach, 190 S.W. 277; State ex rel. v. Graham, 257 Mo. 52; Fahey v. Hackmann, 291 Mo. 351; State ex rel. v. Kimmel, 256 Mo. 643; State ex rel. v. Williams, 232 Mo. 71. (2) The ordinance is one fixing a tax rate or assessment within the meaning of the charter, and became effective upon its passage and approval, and is not subject to the referendum provisions of the charter. Sec. 15, Art. II, Charter; Sec. 2, Art. X, Constitution of Missouri; Clause 1, Sec. 1, Charter; 26 R. C. L. 13, 34; Sec. 8926, R. S. 1919; State ex rel. v. Jost, 265 Mo. 84. (3) The imposition of an occupation tax on retail dealers in cigarettes does not offend any constitutional provision. Clause 2, sec. 1, Charter; Clause 57, sec. 1, Charter; St. Charles ex rel. v. Schulte, 305 Mo. 124; Viquesney v. Kansas City, 305 Mo. 488; Gundling v. Chicago, 177 U.S. 183; Insurance Co. v. Chorn, 274 Mo. 129; Theater Co. v. Chicago, 228 U.S. 69; Machine Co. v. Brickell, 233 U.S. 315; Oil Co. v. Texas, 217 U.S. 126; Bowman v. Oil Co., 256 U.S. 649. (4) If the ordinance is an excepted one and immune from the referendum, no reason exists for compelling the city clerk to file same. Mandamus is never a proper remedy where it can serve no useful purpose. State ex rel. v. Draper, 50 Mo. 28; 26 Cyc. 147.

White, J. All concur, except Blair, J., not sitting.

OPINION

WHITE

The relators filed their petition in this court praying for a writ of mandamus to compel the respondent to receive a notice, as Clerk of the City of Kansas City, of a petition, signed by a number of citizens of that city, of their intention to cause to be circulated a referendum petition for the purpose of putting into effect a referendum vote upon an ordinance passed by the City Council of Kansas City.

Our alternative writ was issued upon the filing of such petition and upon that writ respondent filed his return.

On May 18, 1927, the relators filed a motion for judgment on the pleadings so that we have for consideration only the facts as admitted and alleged in the return to determine whether the permanent writ should be issued.

The admitted facts are as follows:

The relators are taxpayers in the city of Kansas City; the relator Max Asotsky is and was at all times a registered and qualified voter in Kansas City and a duly licensed merchant engaged in the retail sale of drug sundries, tobacco and cigarettes; the relator Frank Hilmes is and was at all times a taxpayer and a registered and qualified voter in the said city, and they bring this action on behalf of themselves and more than one hundred other registered voters of Kansas City similarly situated.

The City Council, on April 11, 1927, enacted an ordinance amending Ordinance No. 38141, entitled, "An ordinance providing for the regulation and licensing of occupations, callings and trades and fixing penalties for the violation of same," as amended by various ordinances mentioned.

Section 1 of the ordinance contains a new section, 3-H, as follows:

"Section 3-H. Every person, firm or corporation engaged in the retail business of selling cigarettes or offering or displaying the same for sale within the city, shall procure a license therefor, and at the time such license is issued, shall pay to the Commissioner of Licenses the sum of one dollar as a registration fee, and in addition thereto, every such person, firm or corporation, engaged in said business, shall pay an occupation tax in an amount equal to twenty per cent of the retail sales price (exclusive of tax) of each package of cigarettes so sold, offered or displayed for sale within the city. Said tax shall be paid and the stamps hereinafter provided for affixed by the person, firm or corporation selling such cigarettes or displaying or offering the same for sale, after the same shall have come to rest in this city and before being displayed or offered for sale by such retailer in this city; provided nothing in this ordinance shall be construed to require a distributor or dealer to fix the retail price, or construed to require any retailer to sell at any particular price, but the amount of stamps affixed at time of sale shall in no event be less than twenty per cent of the price at which the retail sale is made."

Section 2 of the ordinance declares it to be an emergency measure within the meaning of the Charter of Kansas City, to become effective immediately upon its passage.

The relators claim their right to cause a submission of this ordinance to a referendum vote under Section 15 of Article II of the new charter, adopted February 24, 1925, as follows:

"Section 15. Ordinances: When Effective. Emergency measures shall take effect immediately upon their passage. An emergency measure is any ordinance passed by the affirmative vote of six members of the council for the immediate preservation of the public peace, property, health, safety or morals, in which the emergency is set forth and defined in a preamble thereto; any ordinance calling any election, or providing for the submission of any proposal to the people; any ordinance making an appropriation for the payment of principal or interest of the public debt, or for current expenses of the city government; any general appropriation ordinance; any ordinance fixing any tax rate or assessment; or any ordinance relating to any public improvement to be paid for by special assessment. No ordinance granting, enlarging or affecting any franchise or amending or repealing any ordinance adopted by the people under the initiative shall be an emergency measure.

"All other ordinances shall take effect ten days after the date of their passage, unless a...