The State ex rel. Carleton Dry Goods Co. v. Alt

• Decision Date: 21 December 1909
• Citation: 123 S.W. 882,224 Mo. 493
• Parties: THE STATE ex rel. CARLETON DRY GOODS COMPANY, RICE-STIX DRY GOODS COMPANY, HARGADINE-McKITTRICK DRY GOODS COMPANY, and ELY & WALKER DRY GOODS COMPANY, v. LOUIS ALT, License Collector
• Court: Missouri Supreme Court

123 S.W. 882

224 Mo. 493

THE STATE ex rel. CARLETON DRY GOODS COMPANY, RICE-STIX DRY GOODS COMPANY, HARGADINE-McKITTRICK DRY GOODS COMPANY, and ELY & WALKER DRY GOODS COMPANY, v. LOUIS ALT, License Collector

Supreme Court of Missouri

December 21, 1909

Peremptory writs awarded.

Judson & Green and Nagel & Kirby for relators.

(1) The taxation of merchants and manufacturers in Missouri though in form license taxation is in fact property taxation in the form of a license. State v. McKinney, 48 Mo. 373; Cape Girardeau v. Reilly, 72 Mo. 220; State ex rel. v. Tracey, 94 Mo. 217; Aurora v. McGannon, 138 Mo. 38; State ex rel. v. Ashbrook, 154 Mo. 375. The distinction between the two is fundamental, as in license taxation proper the license is fixed by law, there is no assessment as such and no occasion for a hearing. No duty is required but the making up of the license lists and the collection of the license; while in property taxation, there must be a valuation, either by the holder or by some authority definitely appointed by law. County of Santa Clara v. Railroad, 18 F. 409; Hagar v. Reclamation Dist., 111 U.S. 701. (2) It appears from the return that there was no express authority either in the statute or ordinance for the revaluation of the merchants' statements by the so-called Board of License Revision. This is fatal to respondent's case, as such authority must be given expressly by statute and cannot be based upon inference of intendment. State ex rel. v. Shotridge, 56 Mo 126; Valley v. Zeigler, 84 Mo. 214; State v Railroad, 77 Mo. 202; Warrensburg v. Miller, 77 Mo. 56; State v. Railroad, 87 Mo. 236; State ex rel. v. Hagar, 91 Mo. 452; Railroad v Apperson, 97 Mo. 300; Kansas City v. Building and Loan Ass'n, 145 Mo. 50; St. Louis v. Weneker, 145 Mo. 238; State v. Railroad, 149 Mo. 645; State v. Benedict, 11 Vt. 240; Leach v. Blakeley, 34 Vt.; Wiley v. Flurnoy, 30 Ark. 609; White v. City of Apperson, 22 Wis. 639; Mattheson v. Town of Mazomanie, 20 Wis. 195; Ketchum v. Town of Mukwa, 24 Wis. 303; McLean v. Jepfson, 123 N.Y. 142; Coontz v. Simpson, 118 Ind. 1; Stewart v. Palmer, 174 N.Y. 188; Ulman v. Baltimore, 74 Md. 507; State, etc., Commrs. v. Holliday, 105 Ind. 216; Flory v. Sherwood, 128 Ind. 495; Oregon, etc., Co. v. Wasco County, 2 Ore. 206; 1 Cooley on Taxation (3 Ed.), p. 616. (3) It is conclusively shown by a comparison of the provisions of the charter of St. Louis, creating the Board of Equalization for the correction of errors and assessments and the equalization of values of assessed property, with the language of the ordinance creating the Board of License Revision, that the authority to change the valuations of property, and to equalize the same, was intentionally withheld from the latter and that its duties were confined to the correction or revision of the license lists in license taxation. Charter St. Louis, art. 5, sec. 24; Ordinance, sec. 2112, p. 19. (4) Another fundamental distinction between license taxation and property taxation is that in the former there is no necessity for notice of the charge to the taxpayer, as the amount of the tax to be paid is fixed by law, while in taxation of property by valuation notice and opportunity to be heard must be provided for in the law, if the valuation given by the taxpayer is to be changed by any official or board. The ordinance in question makes no provision for notice, for the reason that no notice is required, as it deals wholly with license taxation, as distinguished from property taxation. Stewart v. Palmer, 74 N.Y. 188; Patton v. Green, 13 Cal. 325; Philadelphia v. Miller, 49 Pa. St. 440; Cooley on Const. Lim. 355; Hagar v. Reclamation Dist., 111 U.S. 701; Railroad v. Wright, 207 U.S. 127; Heth v. Radford, 96 Va. 272; Coontz v. Simpson, 117 Ind. 1. Hence it was that notice was provided in the charter and none is provided in the ordinance. Charter, art. 5, sec. 24. (5) Prior to the Act of March 2, 1895 (See Acts 1895, p. 223), there was no revision, provided by the laws of Missouri, of the values placed by merchants and manufacturers upon their stocks of goods. The valuations made by merchants were final, subject only to the penalties of bond forfeiture and prosecution for false swearing. This Act of 1895, extending the power of the county boards of equalization to the equalization of the valuation of merchants' statements with the other property of the county, was expressly limited to the counties of the State, and the county boards of equalization referred to therein existed only in the counties outside of the city of St. Louis; the city of St. Louis being expressly excluded from the statute providing for the county boards of equalization. See Sec. 9130, R. S. 1899. The equalization system of the city of St. Louis provided by charter did not include the equalization of the values of merchants' statements. R. S. 1889, secs. 6899 to 6922; Laws 1895, p. 223; R. S. 1879, secs. 6318 to 6341; 2 Wagner's Stats., par. 938; chap. 95, sec. 6; Gen. Stats. 1865, p. 408, ch. 93, sec. 6; R. S. 1899, sec. 9130; R. S. 1889, sec. 7517; Charter of St. Louis, art. 5, sec. 24, Woerner's Rev. Code, p. 374; Charter of St. Louis, art. 3, sec. 26, clause 5, Woerner's Code, p. 329; Ordinances of St. Louis, sec. 2099, Woerner's Code, p. 1012. (6) As the duty of the City License Collector, under the law, in the issuance of merchants' licenses is clearly ministerial, and it is admitted that the merchants' statements or returns were in due form, properly verified, and the tax payable thereunder was lawfully tendered, the remedy by mandamus is properly invoked in this case. State ex rel. v. Ashbrook, 154 Mo. 375; State ex rel. v. Oliver, 116 Mo. 194.

Lambert E. Walther and Benjamin H. Charles for respondent.

(1) The duty of collecting state revenue and performing all other functions in relation to the state in the same manner as if it were a county is imposed upon the city of St. Louis. Constitution, art. 9, sec. 23; Scheme of Separation, sec. 34; R. S. 1899, secs. 9334 and 9335; Chap. 149, R. S. 1899. (2) The city of St. Louis has power to assess, levy and collect taxes and to license, tax and regulate occupations. Charter, art. 3, sec. 26, clauses 1 and 5; art. 5, sec. 1. (3) And has power to define the duties of all city officers, and may change, increase or diminish their duties, and may transfer and distribute the powers and duties, in whole or in part, of any office provided for in the charter, to another or others. Charter, art. 4, sec. 28; art. 3, sec. 32; art. 4, sec. 45. (4) The provisions of Sec. 8546, R. S. 1899, relating to the correction and equalization of merchants' returns for ad valorem taxes, apply to St. Louis. (a) The law is general in its character, R. S. 1899, sec. 4160. (b) The merchants' ad valorem tax is a property tax. Aurora v. McGannon, 138 Mo. 38; State ex rel. v. Tracy, 94 Mo. 217. (c) And all property must be uniformly taxed and in proportion to its value. State Constitution, art. 10, secs. 3 and 4. (d) To except St. Louis from these provisions of the statute would result in the act becoming violative of art. 10, sec. 3, and art. 5, sec. 53, of the Constitution. Henderson v. Koenig, 168 Mo. 356; State v. Hill, 147 Mo. 63. (e) Where the language is open to two constructions, one of which will render the act valid, and the other invalid, the former will be accepted. 17 Am. and Eng. Ency. Law, p. 17. (f) The consequences of a proposed interpretation may be properly considered to ascertain the legislative intent. State ex rel. v. Rombauer, 104 Mo. 619; Kane v. Railroad, 112 Mo. 34. (g) And likewise, the history of the legislation. Dowdy v. Wamble, 110 Mo. 280; Gabriel v. Mullen, 111 Mo. 119; Greely v. Railroad, 123 Mo. 157. (5) If the said provisions of Sec. 8546, R. S. 1899, have no application to the returns of St. Louis merchants, then the duty of devising a method for correcting and equalizing such returns, in accord with the legislative policy as evidenced by the statute, devolved upon the city. The power to perform such duty is expressly given by the constitutional, statutory and charter provisions cited under points 1 and 2, and particularly by Secs. 9397-8, R. S. 1899, and article 3, section 26, clause 5, of the charter, conferring the power "to license, tax and regulate" merchants. (a) The power to regulate anything means to fix the terms upon which it may be used. Hill v. St. Louis, 159 Mo. 159; St. Louis v. Tel. Co., 149 U.S. 469; Gibbon v. Ogden, 9 Wheat. 1; Sluder v. Transit Co., 189 Mo. 107. (b) The city, in taxing and regulating merchants, has the right to provide for the investigation and correction of the statements required to be filed by them. (c) And the statements or returns thus corrected must be the basis for the state and school taxes, as well as the municipal tax, because the valuation for the last named cannot be greater than the valuation for the tax for state purposes. Constitution, art. 10, sec. 11. (6) The city has, by ordinance, created a Board of License Revision, and empowered it to review, adjust and correct returns made by merchants, and the amount of ad valorem tax required to be paid by relators must be based upon their returns as corrected by this board. (7) The power to adjust and correct the returns is clearly conferred upon the board by the terms of the ordinance. (8) The power to "adjust and correct" authorizes the increasing of the returns when found incorrect. Washington Co. v. Railroad, 58 Mo. 372.

GANTT, J. Valliant, C. J., Fox, Woodson and Graves, JJ., concur; Burgess and Lamm, JJ., not sitting.

OPINION

In Banc

Mandamus.

GANTT J.

These are original proceedings in mandamus to compel the respondent, License Collector of the city of St. Louis, to issue to the relators merchants' licenses. The cases all involve...