Village of Beverly Hills v. Schulter

• Decision Date: 07 July 1939
• Docket Number: 35587
• Parties: Village of Beverly Hills v. Ernest S. Schulter, Doing Business as Schulter Service Station, Appellant
• Court: Missouri Supreme Court

130 S.W.2d 532

344 Mo. 1098

Village of Beverly Hills v. Ernest S. Schulter, Doing Business as Schulter Service Station, Appellant

No. 35587

Supreme Court of Missouri

July 7, 1939

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Reversed.

Cobbs Logan, Roos & Armstrong for appellant.

(1) This court has jurisdiction of this appeal. Art. VI, Sec. 12 Mo. Const.; Art. X, Sec. 3, Mo. Const.; Art. II, Sec. 30, Mo. Const.; Fourteenth Amend., U.S. Const.; Kansas City v. Grush, 151 Mo. 128; State v. Frances, 95 Mo. 44, 8 S.W. 1; State v. Chandler, 132 Mo. 155, 33 S.W. 797. (2) Ordinance No. 13, which imposes the license tax complained of, is void because in the enactment thereof the respondent Village did not comply with the mandatory provision of Section 7133, Revised Statutes 1929. Sec. 7133, R. S. 1929; Stekert v. East Saginaw, 22 Mich. 104; Monett E. L., P. & I. Co. v. Monett, 186 F. 360; State ex rel. Barkwell v. Trimble, 309 Mo. 546, 274 S.W. 683; Aurora Water Co. v. Aurora, 129 Mo. 540; State ex rel. v. Mead, 71 Mo. 266; City of New Franklin v. Edwards, 23 S.W.2d 235; Rumsey Mfg. Co. v. Shell City, 21 Mo.App. 175. (3) Ordinance No. 13 is unconstitutional in that it violates Article X, Section 3, of the Constitution of the State of Missouri, and is contrary to the provisions of Section 7287, Revised Statutes 1929. Art. X, Sec. 3, Mo. Const.; Secs. 7046, 7097, 7287, R. S. 1929; Pierce City v. Hentschel, 210 S.W. 31; Keane v. Strodtman, 18 S.W.2d 896; Siemens v. Shreeve, 296 S.W. 415; Kroger Gro. & Bak. Co. v. St. Louis, 106 S.W.2d 435; Viquesney v. Kansas City, 266 S.W. 700; Kansas City v. Grush, 151 Mo. 128; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281; St. Louis v. Baskowitz, 201 S.W. 870; Ex parte Asotsky, 5 S.W.2d 22. (4) Ordinance No. 13 constitutes a confiscation of property of appellant without due process of law and in violation of the Fourteenth Amendment to the Constitution of the United States and Article II, Section 30, of the Constitution of the State. Fourteenth Amend. U.S. Const.; Art. II, Sec. 30, Mo. Const.; 37 C. J., pp. 190, 193; Scriven v. Lebanon, 99 Kan. 602, 62 P. 307, L. R. A. 1917C, 460; Duff v. Garden City, 251 P. 1091.

C. A. Peterson, A. J. Goodbar and Thos. P. Moore for respondent.

(1) It is the settled law of this State that a constitutional question, to be available on appeal, must be made at the earliest opportunity that orderly procedure affords and must thereafter be kept alive by appropriate steps. To raise a constitutional question it is not sufficient that certain sections of the Constitution are set out and the contention made that the rights of appellant thereunder have been violated. The facts which create the conflict must be set out. Burns v. Prudential Ins. Co., 247 S.W. 159; Lavelle v. Met. Ins. Co., 231 S.W. 617; Grandview v. McElroy, 298 S.W. 760; Lohmeier v. Cordage Co., 214 Mo. 685; State v. Goad, 296 Mo. 452, 246 S.W. 917; State v. Swift & Co., 270 Mo. 694; Bealmer v. Hartford Ins. Co., 281 Mo. 495; Dorrah v. Pemiscot County Bank, 248 S.W. 960; State v. Nece, 248 S.W. 963; Hines v. Hook, 338 Mo. 114, 89 S.W.2d 52; A. Coast Line Railroad Co. v. Mims, 242 U.S. 532, 50 L.Ed. 478; Wheat v. Platte City Special Road Dist., 52 S.W.2d 856. (2) "The regularity of proceedings by a legislative municipal body will be presumed. If a municipal ordinance is to be overthrown because irregularly adopted, it must affirmatively appear from the journal of the municipality that the mandatory provisions of law relative to the passage of the ordinance have not been observed." Mere silence of the record does not amount to such a showing. 19 R. C. L. 889; Cox v. Mignery, 126 Mo.App. 669; State v. Atchison, T. & Santa Fe, 92 Kan. 431; Portland v. Yick, 44 Ore. 439; Louisville v. Hyatt, 41 Ky. 177; Buffalo Railroad Co. v. Buffalo, 5 Hill, 209. (3) The ordinance of the plaintiff Village complies with the provisions of Section 7133, Revised Statutes 1929. State v. Telephone Co., 127 Iowa 194; German Ins. Co. v. Manning, 95 F. 597; Buck v. Monroe, 85 Wash. 1; Marion Water Co. v. Marion, 121 Iowa 306; Goodyear Rubber Co. v. Eureka, 135 Cal. 613, 67 P. 1043; State ex rel. Barkwell v. Trimble, 309 Mo. 546; Bayard v. Baker, 76 Iowa 220; McCormick v. Bay City, 23 Mich. 457. (4) The ordinance in question is one which the Village was competent to pass under the express authorization of the statute. Secs. 7097, 7287, R. S. 1929; Visquesney v. Kansas City, 266 S.W. 700.

Bradley, C. Hyde, C., concurs; Dalton, C., not sitting.

OPINION

BRADLEY

This is an action to recover for license taxes on the sale of gasoline in the village of Beverly Hills, St. Louis County. The cause was submitted to the court on agreed statement of facts, and the finding and judgment for $ 510.76, including interest, were for plaintiff. Defendant appealed, and the appeal came to this court on the theory that the construction of the Federal and State Constitutions is involved.

Section 1 of Ordinance No. 13 provides: "No person, firm, or corporation shall engage in, carry on, or conduct the business of selling gasoline or motor fuel and/or transporting the same in barrels, tank wagons, or other containers having a capacity of more than five gallons and/or storing gasoline or other motor fuel in quantities in excess of ten gallons without first having obtained a license therefor from the village collector."

Section 2 sets out what an applicant has to do in order to obtain such license. Section 3 provides:

"Every person, firm or corporation that shall store gasoline or other motor fuel as defined in section 1 hereof, or shall be engaged in the business defined in section 1 hereof, shall pay the village collector a monthly license on the fifteenth day of each month for the preceding period of one month ending, respectively, on the last day of the preceding month, the amount of said monthly license to be determined at a sum equal to one half cent for every gallon of gasoline stored or sold by such person, firm or corporation during the preceding period of one month, and ending as aforesaid."

Section 4 relates to the keeping, by such dealer, of records, etc., and making monthly reports to the village collector, and the collector's duties. Other sections prescribe penalties.

From September 1, 1935, to July 1, 1936, defendant sold 97,226 gallons of gasoline, an average of 972.26 gallons per month. The license tax on these sales was $ 486.13, an average of $ 48.61 per month.

Defendant contends: (1) That under the statute (Sec. 7287, R. S. 1929, Mo. Stat. Ann., p. 5871, and Sec. 7097, R. S. 1929, Mo. Stat. Ann., p. 5796) Ordinaice 13 is not authorized; (2) that the ordinance violates Section 3, Article 10 of the Constitution which requires taxes to be uniform "upon the same class of subjects" of taxation; (3) that the ordinance violates Section 30, Article 2, Constitution of Missouri (due process), and the due process and equal protection provisions of the Fourteenth Amendment of the Constitution of the United States; and (4) that the ordinance is void because "the yeas and nays" were not entered on the journal when the ordinance was passed by the village board of trustees.

Plaintiff (respondent) makes the point that defendant's answer is not sufficient to raise these constitutional questions. The point is that the answer does not allege "how the sections (of the Constitution) are violated by the ordinance." In some cases, in order to raise a constitutional question, it is necessary to state in what way constitutional rights are transgressed (Village of Grandview v. McElroy et al., 318 Mo. 135, 298 S.W. 760), but such is apparent here, if defendant is correct respecting validity on constitutional grounds.

Section 7287 provides that "no municipal corporation in this State shall have the power to impose a license tax upon any business avocation, pursuit or calling, unless such business avocation, pursuit or calling is specially named as taxable in the charter of such municipal corporation, or unless such power be conferred by statute." This section is applicable to plaintiff village. [Siemens v. Shreeve et al., 317 Mo. 736, 296 S.W. 415, l. c. 418, and cases there cited.]

Plaintiff village was organized under Article 9, Chapter 38, Revised Statutes 1929, Sections 7091 et seq. (Mo. Stat. Ann., pp. 5792 et seq.), relating to towns and villages. Section 7097 specifies what ordinances may be passed by the board of trustees of a town or village. Among other provisions, this section provides that the "board of trustees shall have power to pass by-laws and ordinances . . . to license, tax, and regulate merchants." The point is that defendant's business of selling gasoline is not specifically named in Section 7097.

Viquesney v. Kansas City et al., 305 Mo. 488, 266 S.W. 700, was to enjoin the enforcement of an ordinance requiring those selling gasoline to pay (quarterly) to "the license collector the sum of 1 cent for each gallon . . . so sold, transported or stored," etc. There, as here, it was contended that the business of selling gasoline was not specifically named as taxable in the city charter. In ruling the point the court said (305 Mo. l. c. 498, 266 S.W. l. c. 702):

"Appellant calls attention to Section 8702, Revised Statutes 1919 (now Sec. 7287), which provides that no municipal corporation shall have the power to impose a license tax upon any business, avocation, etc., unless such business avocation, etc., is specifically named as taxable in the charter of such municipality. Section 1, Article 3, Clause 4, of the Charter enumerates 'merchants' among others who may be taxed and regulated. The dictionary definition of 'merchant' is: 'One making a business of buying and selling commodities; a trafficker;...