Viquesney v. City of Kansas City
| Decision Date | 25 November 1924 |
| Docket Number | 25127 |
| Citation | 266 S.W. 700,305 Mo. 488 |
| Parties | JULES A. VIQUESNEY, Appellant, v. CITY OF KANSAS CITY, FRANK H. CROMWELL et al |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 305 Mo. 488 at 500.
Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.
Affirmed.
Atwood Wickersham, Hill, Levis & Chilcott for appellant.
(1) The ordinances in question levy a tax upon property and not a license fee upon occupations. St. Louis v. Speigel, 75 Mo. 145; St. Louis v. Weitzel, 130 Mo. 600; Brookfield v. Tooey, 141 Mo. 619; State ex rel. v. Stephens, 146 Mo. 662; State ex rel. Wyatt v. Ashbrook, 154 Mo. 375; State v. Bengsch, 170 Mo. 81; State ex rel. v. Parker Dist. Co., 236 Mo. 219; Brown v. Maryland, 12 Wheat. 425; Welton v. Missouri, 91 U.S. 275; Brenner v. Titusville, 163 U.S. 289; Dawson v. Friedburg, 274 F. 420, 255 U.S. 288, 65 L.Ed. 638. (2) When a license measure is for revenue, or a tax on property, it must conform to the constitutional limitations and restrictions in regard to taxation, or it is void. Crow v. Missouri, 14 Mo. 180; City of Aurora v. McGannon, 138 Mo. 38; City of Springfield v. Smith, 138 Mo. 645; City of Brookfield v. Tooey, 141 Mo. 619; State v. Bengsch, 170 Mo. 81; State ex rel. v. Eby, 170 Mo. 497; State v. Parker Dist. Co., 236 Mo. 219; City of Troy v. Harris, 102 Mo.App. 51. (3) The license measures levying fees in excess of the amount required for police or regulation or inspection purposes are taxes upon property and take a greater proportion of plaintiff's property to support the municipality than is required of other persons, thereby denying plaintiff the equal protection of the laws and are void. 14 Amendment; Russell v. Croy, 164 Mo. 69; State v. Bengsch, 170 Mo. 81; State v. Eby, 170 Mo. 497. (4) The taxes being property taxes are not uniform, plaintiff being required to pay a higher rate of taxes upon his property than other taxpayers, and the ordinances levying the same are, therefore, void. Sec. 3, art. 10, Mo. Constitution; St. Louis v. Speigel, 75 Mo. 145; Brookfield v. Tooey, 141 Mo. 619; State ex. rel. v. Ashbrook, 154 Mo. 375; State v. Bengsch, 170 Mo. 81; State ex rel. v. Railroad, 196 Mo. 523. (5) The taxes levied by the ordinances in question are not in proportion to the value of the property taxed, and the ordinances are, therefore, void. Sec. 4, art. 10, Mo. Constitution; State v. Bengsch, 170 Mo. 81; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Railroad, 215 Mo. 479. (6) Ordinance No. 44965 exempts certain gasoline, naphtha and benzine from the burden of the tax and is, therefore, void. Secs. 6 and 7, art. 10, Mo. Constitution; State v. Bengsch, 170 Mo. 81. (7) The State having already designated the manner in which gasoline should be taxed, and indicated the purpose therefor, the City of Kansas City was restricted and confined to passing ordinances in conformity therewith. Secs. 6070, 6073, 8704, R. S. 1919. (8) The charter not having designated gasoline merchants as a separate class for the purpose of licensing, taxing and regulating them, the city did not have power or authority to levy an occupation tax against such class different from that levied against merchants generally and the ordinances in question, therefore, are void. Sec. 8702, R. S. 1919; Kansas City v. Grush, 151 Mo. 128. (9) The occupation tax levied against gasoline merchants is unjust, unreasonable, discriminatory and void. Carrigan v. Gage, 68 Mo. 541; City of Cape Girardeau v. Riley, 72 Mo. 220; Springfield v. Jacobs, 101 Mo.App. 339; Stoltman v. Clayton, 205 Mo.App. 568; Illinois v. Wilson, 35 L. R. A. (N. S.) 1074.
Solon T. Gilmore and E. F. Halstead for respondent.
(1) The ordinance in question is an occupation tax and is not a tax upon property. American Mfg. Co. v. St. Louis, 270 Mo. 40; American Mfg. Co. v. St. Louis, 250 U.S. 459; St. Louis v. United Rys. Co., 263 Mo. 387, 449; City of St. Joseph v. Ernst, 95 Mo. 360; Clark v. Titusville, 184 U.S. 329; Alaska Fish Co. v. Smith, 255 U.S. 44; Bowman v. Continental Oil Co., 256 U.S. 642. (2) Since the ordinance in question is not a tax upon property, the limitations upon the taxation of property found in Sections 4, 6, 7 and 11 of Article 10 of the Constitution of Missouri, have no application in this case. Mass. Bonding & Ins. Co. v. Chorn, 274 Mo. 15; Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339; St. Louis v. United Rys. Co., 263 Mo. 387, 449; Glasgow v. Rowse, 43 Mo. 479; Bowman v. Continental Oil Co., 256 U.S. 642. (3) Neither the Fourteenth Amendment of the Constitution of the United States nor Section 3 of Article 10 of the Constitution of Missouri prohibit reasonable classification. S.W. Oil Co. v. Texas, 217 U.S. 114; Bowman v. Continental Oil Co., 256 U.S. 642; Metropolis Theater Co. v. Chicago, 228 U.S. 61. (4) The imposition of an occupation tax upon a trade or calling is not in conflict with Section 4, Article 2, of the Constitution of Missouri. St. Louis v. McCann, 157 Mo. 301. (5) Sec. 6073, R. S. 1919, Laws 1921, p 404, sec. 3, deals with the inspection of petroleum and gasoline and the inspection fee is not in any sense a tax of any kind, and the provisions of Section 8704 do not, by virtue of the state gasoline inspection law, prevent imposition of occupation taxes by the city. (6) For the purpose of occupation taxes, Kansas City has express charter powers to make reasonable classification of merchants. Art. 3, sec. 1, pars. 1 and 4, Charter of Kansas City; Kansas City v. Grush, 151 Mo. 128; St. Louis v. Baskowitz, 273 Mo. 543, 563, 574.
This action is brought to restrain by injunction the City of Kansas City and its officers from enforcing certain ordinances providing for levy and collection of certain taxes which affect plaintiff's business.
The plaintiff, Jules A. Viquesney, maintained a public garage at 4605 Prospect Avenue; also, at the same place, in the parkway between the curb and sidewalk he maintained and operated a gasoline pump and tank.
Ordinance No. 38141, of Kansas City, entitled: "An Ordinance providing for the restriction and licensing of various occupations," etc., fixed a license tax on garages: those with capacity less then twenty motor vehicles, $ 15.
Plaintiff's garage had capacity of fewer than twenty motor vehicles, and the fifteen-dollar rate applied to him. The tax on his gasoline curb-pump was ten dollars.
That ordinance also provided for a tax on retail merchants. Ordinance 39337 amended Ordinance 38141, by providing that every wholesale merchant, manufacturer, and every retail merchant, "except as otherwise provided in this ordinance" (enumerating numerous kinds of businesses affected), should obtain a license for such business and pay to the city the sum of fifty cents for each one thousand dollars, or fraction thereof, of the annual gross receipts of the business so operated or managed.
Ordinance No. 44965 further amended Ordinance No. 38141, by adding several new sections:
New Section 3a required every person engaged in the business of selling or offering for sale gasoline, benzine, or naphtha, and every person, firm or corporation storing the same in quantities in excess of ten gallons, etc., to procure a license therefor;
New Section 3c provided that every person, etc., engaged in the business described in the preceding section should pay for the license the sum of one dollar, and thereafter, on or before the sixteenth day of January, April, July and October of each year, should pay the license collector the sum of one cent for each gallon of gasoline, benzine, or naphtha so sold, transported or stored by such person during the preceding three months;
New Section 3d required that every person, etc., engaged in the business described in Section 3b, should keep an accurate record of all sales and file a sworn statement of the same with the City License Collector on the sixteenth day of January, April, July and October of each year;
New Section 3f provided that the provisions in this ordinance should not be construed as intended to require the payment of a tax in those cases where, and in so far as, the imposition of the same would be unlawful by reason of any provision of the Constitution and the laws of the United States or of the State of Missouri, mentioning interstate commerce, and that the provisions of the Sections 3b, 3c and 3e should not "be held to include the sale, transporation or storage of gasoline, benzine or naphtha used on the premises of a manufacturer, cleaner or renovator in manufacturing, cleaning or renovating process for which a license tax is, in this ordinance, elsewhere provided."
Appellant claims that Ordinance 38141, and the other ordinances in amendment of the same, should not be enforced for several reasons, among them the following:
That those ordinances violate the Fourteenth Amendment of the Federal Constitution, which provides that no state shall deny equal protection of the laws;
That the ordinances are in violation of Section 3, Article X, of the Constitution of Missouri, which requires taxes to be uniform upon the same class of subjects within the territorial limits of the authority levying the tax;
That they are in violation of Section 4, Article X, of the Constitution of Missouri, which requires that all property subject to taxation shall be taxed in proportion to its value;
That they are in violation of Section 6, Article X, of the Constitution of Missouri, which specifies what property shall be exempt from taxation on the ground that property exempted in the ordinance is not within the purview of that section.
That they are in violation of Article X,...
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