The State ex rel. McClung v. Becker

• Decision Date: 08 July 1921
• Citation: 233 S.W. 54,288 Mo. 607
• Parties: THE STATE ex rel. D. C. McCLUNG v. CHARLES U. BECKER, Secretary of State
• Court: Missouri Supreme Court

233 S.W. 54

288 Mo. 607

THE STATE ex rel. D. C. McCLUNG v. CHARLES U. BECKER, Secretary of State

Supreme Court of Missouri

July 8, 1921

Writ denied.

Irwin & Haley for relator.

(1) Section 7558, R. S. 1919 is violative of Sec. 3, Art. X, of the Constitution in that the tax levied under the provisions of said section is not uniform upon the same class of subjects within the territorial limits of the State; (b) said section is violative of Sec. 4 of Art. X of the Constitution in that all property of the State subject to the tax imposed by said section is not taxed in proportion to the value of said property; and (c) because it places a special tax in the sum of nine dollars upon relator's property, which is already assessed and taxed as all other personal property. State v. North, 27 Mo. 483; Hamilton v. St. L Co. Ct., 15 Mo. 24; Glasgow v. Rowse, 43 Mo 489; St. Louis v. Spiegel, 75 Mo. 145; Wire Co v. Wollbrinck, 275 Mo. 353. (2) Said section constitutes double taxation, and is clearly an act to produce revenue. Vernor v. Secretary of State, 146 N.W. 338; Chicago v. Collins, 175 Ill. 445; Livingston v. Paducah, 80 Ky. 656.

Jesse W. Barrett, Attorney-General, and Merrill E. Otis, Assistant Attorney-General, for respondent.

(1) The motor vehicle license fee is not a tax upon the property in motor vehicles, but a tax upon the privilege of operating motor vehicles on the public highways. Secs. 7553, 7558, R. S. 1919; St. Louis v. Green, 70 Mo. 562, 7 Mo.App. 468. (2) The motor vehicle license fee, being a tax upon a privilege and not on property, cannot violate Section 4 of Article X of the Constitution, which applies only to taxes on property. St. Louis v. Green, 70 Mo. 562, 7 Mo.App. 468. (3) The fee, being a tax on a privilege and not on property, is not a property tax on motor vehicles in addition to the general property tax thereon, and cannot, therefore, constitute double taxation. St. Louis v. Green, 70 Mo. 562, 7 Mo.App. 468. (4) The General Assembly may classify subjects of taxation, if the classification is reasonable. Classifying the privilege of operating motor vehicles upon the public highways upon the basis of horsepower, which means upon the basis of relative destructiveness to roads, is reasonable. Within each class so made the fee is uniform. Hence there is no violation of Section 3 of Article X of the Constitution. St. Louis v. Green, 70 Mo. 562, 7 Mo.App. 468. (5) The Legislature has the general power to impose a tax or license fee on privileges. Sec. 1, Art. X, Mo. Constitution. (6) The precise points made here by the relator have been ruled adversely to his position by the Supreme Court of Missouri in an exactly parallel case. St. Louis v. Green, 70 Mo. 562, adopting the opinion in St. Louis v. Green, 7 Mo.App. 468. (7) The entire current of authority in this country is to the effect that statutes similar to ours are constitutional. Saviers v. Smith, 128 N.E. 269; Ex parte Schuler, 139 P. 685; Ex parte Kessler, 146 P. 113 (Idaho) ; Lillard v. Melton, 87 S.E. (S. C.) 421; Ard v. People, 182 P. 892; Transfer Co. v. Nichol, 215 S.W. 579; Atkins v. State Highway Dep., 201 S.W. 226; Smith v. Commonwealth, 194 S.W. 367; Ex parte Hoffert, 148 N.W. (S. D.) 20; State v. Lawrence, 66 So. 745; Kane v. Titus, 80 A. (N. J.) 453; State v. Ingalls, 135 Pac. (N. M.) 1177; Vernor v. Secretary of State, 146 N.W. 338. For collections of cases, see 1 L.R.A. (N. S.) 215; 37 L.R.A. (N. S.) 440; 52 L.R.A. (N. S.) 949; L.R.A. 1915D, 332.

HIGBEE, J. Graves, J., concurs in separate opinion.

OPINION

In Banc.

Mandamus.

HIGBEE J.

This is an application for a writ of mandamus directed to respondent, commanding him to register in his office relator's automobile truck, authorizing him to operate said car upon the public highways of the State of Missouri, upon the payment of a fee of one dollar. The petition, in substance, avers that relator is a resident of Jefferson City, Cole County, Missouri; that he is the owner of a Kelly-Springfield motor truck, which he operates and drives upon the public highways of this State; that said motor truck is propelled by a gas engine, has four cylinders, "4 1/2" bore, and that the horse power of said motor truck is 30 h. p.; that on May 27, 1921, he presented to the respondent Secretary of State an application in due form for the registration of said motor truck, on a blank furnished by the Secretry of State for that purpose, which it is admitted was in accordance with Section 7553, Revised Statutes 1919, and tendered to the said respondent a fee of one dollar for the registration of said truck, but that said respondent refused to register said truck unless the said relator paid to the said respondent, for the use and benefit of the State of Missouri, a registration fee of ten dollars in accordance with the schedule provided in Section 7558, relating to motor vehicles; that the action of the respondent in refusing to register said automobile truck and in demanding a greater sum than one dollar as a license fee for the registration of said motor vehicle, is unwarranted, unlawful and unjust in the following particulars, to-wit:

(1) Because said sum of one dollar tendered by the relator to the respondent is in excess of and amply sufficient to pay all costs incident to the issuance of the certificate of registration, two duplicate number plates, the printing of the application blanks, the cost of clerical help, together with all other costs incident to the registration of said automobile.

(2) Because the sum demanded of relator by respondent is nine dollars in excess of all costs and expenses incident to the registration of said automobile, and that said excess is a tax upon this relator in the sum of nine dollars.

(3) Because Section 7558 is violative of Section 3 of Article X of the Constitution, in that the tax levied under the provisions of said section is not uniform upon the same class of subjects within the territorial limits of the State.

(4) Because said Section 7558 is violative of Section 4 of Article X of the Constitution in that all property of the State subject to the tax imposed by said section is not taxed in proportion to the value of said property.

(5) Because Section 7558 is unconstitutional for the reason that it places a special tax in the sum of nine dollars upon relator's property, which is already assessed and taxed as personal property. Wherefore, relator prays, etc.

The issuance of the alternative writ was waived. The respondent's return admits all the facts alleged, but denies that his action in refusing to register relator's automobile truck and in demanding a greater sum than one dollar as a license fee for the registration thereof, was unwarranted, unlawful and unjust. On the contrary, respondent states that it was his duty to refuse to register said truck except upon the payment of a registration fee of ten dollars, as required by Section 7558, Revised Statutes 1919.

Respondent denies that Section 7558 is violative of either of the sections of the Constitution specified in the petition. Respondent says that the motor-vehicle-license fee provided for by Section 7558 is not a tax upon property, but a license fee exacted for the privilege of operating motor vehicles on the public highways of the State, and that Section 3 of Article X of the Constitution only requires uniformity as to taxes on property in this State.

I. Section 7553, Revised Statutes 1919, requires the annual registration by the Secretary of State of very motor vehicle operated upon the public highways (except as otherwise provided), and Section 7558 requires the payment of registration fees thereon according to a schedule of horse-power ratings. The fee for those rating 24 and less than 36 horse-power is ten dollars. By Section 7604 (also 10902) the registration fees provided by the act must be paid by the Secretary of State into the State Treasury for the benefit of the State Road Fund, less the cost of administering the provision of the chapter relative to motor vehicles. It is therefore avowedly a revenue measure. The owner of such vehicle may operate it on his own premises without being subject to the payment of the registration fee imposed by the statute. In such case he will pay the general property tax. The State maintains roads and bridges at great expense and exacts a license fee for the privilege of driving or operating these high-powered vehicles thereon. It is clear therefore that the registration fee is not a tax on the vehicle, but upon the privilege of operating it on the highways of the State.

II. The constitutional questions raised by the relator were thoroughly considered in St. Louis v. Green, 7 Mo.App. 468, 473. An ordinance of the City of St. Louis imposed an annual license tax on vehicles, from two dollars upon a handcart, three dollars on a buggy, up to thirty dollars for a six-horse omnibus. It was contended that the ordinance was violative of the identical provisions of the Constitution now urged by the relator. The court said. "Every burden imposed for revenue purposes is levied under the taxing power, by whatever name the tax is called. License-fees, when for revenue, tolls, polls, taxation of money, and of corporations in proportion to their capital stock, are instances of special cases of taxes which are regarded as exempted by implication from the constitutional rules as to ad valorem assessments. It is therefore a mistake to suppose that the constitutional provisions in question include every species of taxation. These provisions as to equality and uniformity of taxation apply to property alone, not to taxes on privileges or occupations, or on the exercise of a civil right."

The court held that the tax, being general and uniform as to each class of...