The State v. Bixman

• Decision Date: 15 April 1901
• Citation: 62 S.W. 828,162 Mo. 1
• Parties: THE STATE v. BIXMAN, Appellant
• Court: Missouri Supreme Court

62 S.W. 828

162 Mo. 1

THE STATE v. BIXMAN, Appellant

Supreme Court of Missouri

April 15, 1901

Appeal from Henry Circuit Court. -- Hon. W. W. Graves, Judge.

Affirmed.

G. A Finkelnburg for appellant.

(1) The Act of May 4, 1899, is a revenue measure and imposes a tax. The title or phraseology of a statute can not control its ultimate meaning and validity. This must be determined by the courts upon an examination of its true nature and effect. A statute, enacted under all the forms of law, may nevertheless be destructive of some constitutional right or violate some constitutional limitation. "In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect." Henderson v. New York City, 92 U.S. 268; Minnesota v. Barber, 136 U.S. 313; Prentice on Police Powers, p. 31. A bona fide inspection fee is always graduated with some reasonable relation to the cost of the inspection. As its name indicates, it is a fee for the services rendered by the inspector and is paid to him as his compensation and for incidental expenses. Brimmer v. Rebman, 138 U.S. 78; Am. Fertilizer Co. v. Board of Agriculture, 43 F 609; Patapsco Guano Co. v. North Carolina, 171 U.S 345; Willis v. Standard Oil Co. (Minn.), 52 N.W 652; Cooley on Taxation, pp. 90, 603; State ex rel. v. The Judges, 21 Ohio St. 11; Cooley on Constitutional Limitations, 153. (2) The act in controversy imposes a tax upon property. It is hardly admissible at this day to argue that a tax on the sale of an article is not a tax on the article itself. That was settled by the case of Brown v. Maryland, 12 Wheaton, 419. The act here in controversy simply levies a tax on the property which the brewer has manufactured after he has been duly licensed to manufacture it. The question, what is a "property tax," has been before the court on repeated occasions, and the court has always regarded the substance rather than the form of the law imposing the tax. City v. Tooey, 141 Mo. 625; State v. Stephens, 146 Mo. 684; State v. Tracy, 94 Mo. 217; State v. Switzler, 143 Mo. 331; Crow v. State, 14 Mo. 283. In no sense of the word can this tax be called an occupation tax. (3) The tax imposed is in excess of the constitutional limit. City of Kansas v. Johnson, 78 Mo. 666; State v. Tracy, 94 Mo. 225; State v. Stephens, 146 Mo. 662; City v. Tooey, 141 Mo. 625; Black v. McGonigle, 103 Mo. 202; State v. Town of Columbia, 111 Mo. 365; State v. Railroad, 123 Mo. 78; Arnold v. Hawkins, 95 Mo. 569; Book v. Earl, 87 Mo. 255; Overall v. Ruenzi, 67 Mo. 203; State ex rel. v. Switzler, 143 Mo. 331. (4) The tax imposed by the act is not uniform. Chicago v. Collin, 174 Ill. 445; City v. Arndt (Ala.), 28 So. Rep. 70; State v. Switzler, 143 Mo. 333; Ex Parte Jones (Texas), 43 S.W. 513; Pullman Car Co. v. State, 64 Texas, 274; City v. Stearns, 2 Pa. Dist. Rep. 351; City of Savannah v. Weed, 84 Ga. 683; Kansas City v. Grush (Mo.), 52 S.W. 286; State v. Tucker (S. C.), 35 S.E. 215; State v. Hoyt (Vt.), 42 A. 973; Amoskeag Mfg. Co. v. City (N. H.), 47 A. 74. (5) The tax proposed is not in proportion to value. Redmond v. Commissioners, 106 N.C. 122; City v. Stearns, 2 Pa. Dist. Rep. 351. (6) The title of the act violates the requirements of the Constitution. City of Kansas v. Payne, 71 Mo. 162; State v. Heege, 135 Mo. 112; State v. Jackson County, 102 Mo. 531; State v. Lafayette County, 41 Mo. 39; State v. County Court, 128 Mo. 427, 441; Wittman v. Railroad, 131 Mo. 612; State v. Persinger, 70 Mo. 346. (7) The act violates the right of interstate commerce. Brown v. Maryland, 12 Wheaton, 419; Schollenberger v. Pennsylvania, 171 U.S. 1; Leisy v. Hardin, 135 U.S. 100; Packet Co. v. Keokuk, 95 U.S. 86; State v. Enert, 103 Mo. 241. (8) The act is void for want of proper provisions to carry it into effect. The act is nugatory and void for the same reason that the "Julian Law" was held void in State v. Railroad, 146 Mo. 155, that is, for want of adequate provisions in the act to carry it into practical effect. The reasons for this may be summarized as follows: (a) It conclusively appears that one inspector and four deputies can not possibly inspect all the beer produced and sold in all the breweries in the State of Missouri without subjecting the business to delays so ruinous as to practically destroy the same. (b) It has been shown that it is scientifically as well as practically impossible to ascertain from inspection or analysis of the finished product of what cereal the beer has been brewed, whether barley, corn, wheat or other malt grain. (c) It has been shown that an attempt to inspect or analyze the beer after it has passed into its final stage ready for consumption involves a spoliation of every package thus inspected. (d) As heretofore explained, beer can not be brewed exclusively of the materials mentioned in section 4 of the act.

Kehr & Tittmann for appellant.

(1) Courts will, at all times, examine a statute, and, regardless of its recitals, determine its character by its natural and reasonable effect. City of St. Louis v. Spiegel, 75 Mo. 146; State v. Julow, 129 Mo. 177; Hnderson v. New York, 92 U.S. 268; Austin v. Murray, 16 Pick. 126; Mugler v. Kansas, 123 U.S. 661; Muehlenbrink v. Coms., 42 N. J. L. 364; Burlington v. Ins. Co., 31 Iowa 102. (2) The act contains two subjects, one expressed and the other omitted in the title. It therefore violates section 28 of article 4 of the Constitution, and is void. City of Kansas v. Payne, 71 Mo. 162; State v. Burgdoerfer, 107 Mo. 30; St. Louis v. Weitzell, 130 Mo. 616; State ex rel. v. County Court, 102 Mo. 537; State ex rel. v. Lafayette County Court, 41 Mo. 39; State ex rel. v. Heege, 135 Mo. 119; Henderson v. Ins. Co., 34 N.E. 565; Coms. Sedgwick Cty. v. Bailey, 13 Kas. 600; Swayze v. Briton, 17 Kas. 625; Shepherd v. Helman, 23 Kas. 504; Railroad v. Sanders City, 9 Neb. 507; Parish of Bossier v. State, 13 La. Ann. 433; Grosvenor v. Duffy, 80 N.W. 19. (3) The necessary effect of the method of inspection provided for by the act, is to injure or destroy the article inspected. Any injury to property whereby its use is destroyed or its value lessened is a taking without due process of law and without just compensation. Matter of Application of Jacobs, 98 N.Y. 105; Constitution, art. 2, secs. 21 and 30; Pumpelly v. Green Bay Co., 13 Wall. 179; Hanson v. Vernon, 27 Iowa 90. (4) Whether the subject of the act is within the scope of the police power of the State is a judicial question. State v. Fisher, 52 Mo. 177; Tiedeman on Lim. Police Power, pp. 197, 198 and 431; Lake View v. Rose Hill Cem., 70 Ill. 192; Tiedeman on Mun. Corp., p. 208, sec. 122; Lawton v. Steele, 152 U.S. 137; Forster v. Scott, 136 N.Y. 584. (5) The act does not relate to or tend to promote the public health, comfort, safety or welfare, and therefore is not within the police power of the State. State v. Fisher, 52 Mo. 177; Matter of Application of Jacobs, 98 N.Y. 115; State v. Julow, 129 Mo. 177; People v. Marx, 99 N.Y. 387; People v. Gilson, 109 N.Y. 401; Health Dept. v. Rector Trinity Church, 145 N.Y. 42; Colon v. Lisk, 153 N.Y. 196; People ex rel. v. Wardon of Prison, 157 N.Y. 126; People v. Compagnie, G. T. 107 U.S. 63; People v. Crowley, 113 U.S. 710; Mugler v. Kansas, 123 U.S. 661; Minnesota v. Barber, 136 U.S. 319; Brimmer v. Rebman, 138 U.S. 81; State ex rel. v. Judges, 21 Ohio St. 11; Austin v. Murray, 16 Pick. 127. (6) To be an inspection fee, the charge must be limited to the necessary or probable expense of the service rendered. If it exceeds that, it is a tax. The total cost of inspection is fixed by the act at $ 12,000 per annum. The income is $ 558,000 per annum. Therefore, it is a tax. City v. Boatman's Ins. & T. Co., 47 Mo. 152; City v. Spiegel, 75 Mo. 145; Pace v. Burgess, 92 U.S. 372; Wittler v. Standard Oil Co., 50 Minn. 290; Minnesota v. Barber, 136 U.S. 313; Brimmer v. Rebman, 138 U.S. 78; Mays v. Cincinnati, 1 Ohio St. 268; Tiedeman on Municipal Corp., p. 213, sec. 123; St. Paul v. Traeger, 25 Minn. 51; Taylor v. Pine Bluff, 34 Ark. 603; Vansant v. Harlem S. Co., 59 Md. 330; State v. Bean, 91 N. Car. 544; Kansas City v. Grush, 151 Mo. 128. (7) A valid classification for the purposes of taxation must have a just and reasonable basis. State v. Loomis, 115 Mo. 307; State ex rel. v. Miller, 100 Mo. 439; Railroad v. Ellis, 165 U.S. 150; Cooley Const. Lim. (6 Ed.), p. 481; State v. Julow, 129 Mo. 165; Dunne v. Kansas City C. Co., 131 Mo. 1; State v. Grannemann, 132 Mo. 326. (8) The act contravenes the fourteenth amendment to the Constitution of the United States. Virginia v. Rives, 100 U.S. 313; Ex Parte Virginia, 100 U.S. 339; United States v. Cruikshank, 92 U.S. 542; Slaughter House cases, 16 Wall. 36; Railroad Tax cases, 13 F. 722. (9) The act contravenes the second clause of section 10, article 1, of the Constitution of the United States. Brown v. Maryland, 12 Wheat. 419; Almy v. California, 24 How. 169; Packet Co. v. Keokuk, 95 U.S. 86; Leisy v. Harding, 135 U.S. 100; State v. Shapleigh, 27 Mo. 344; State v. North, 27 Mo. 464; Crow v. State, 14 Mo. 237; State v. Emert, 103 Mo. 241.

Koehler & Reiss also for appellant.

(1) The trial court erred in refusing to admit evidence of the fact that corn and cereals other than those designated in the Act of May 4, 1899, are wholesome and not deleterious and have been used in the manufacture of beer for many years. People v. Marx, 99 N.Y. 387; Waterbury v Newton, 50 N. J. L. 544. (2) The court erred in refusing to admit evidence to show that there is a species of malt liquor (weiss beer) that is and can only be made of wheat. People v. Marx, 99 N.Y. 387; Waterbury v. Newton, 50 N. J. L. 544. (3) The court erred in admitting evidence as to the possibility of determining from an inspection and analysis of the "mash" what...