Viquesney v. Kansas City

• Decision Date: 08 October 1924
• Docket Number: No. 25127.,25127.
• Parties: VIQUESNEY v. KANSAS CITY et al.
• Court: Missouri Supreme Court

266 S.W. 700

VIQUESNEY v. KANSAS CITY et al.

No. 25127.

Supreme Court of Missouri, in Banc.

October 8, 1924.

Motion for Rehearing Denied November 25, 1924.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Bill for injunction by Jules A. Viquesney against the City of Kansas City and others. From judgment dismissing bill, plaintiff appeals. Affirmed.

Atwood, Wickersham, Hill, Levis & Chilcott, of Kansas City, for appellant.

Solon T. Gilmore and E. F. Halstead, both of Kansas City, for respondents.

WHITE, J.

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 than 20 motor vehicles, $15. Plaintiff's garage had capacity of fewer than 20 motor vehicles, and the $15 rate applied to him. The tax on his gasoline curb pump was $10. 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 50 cents for each $1,000, 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 10 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 $1, and thereafter, on or before the 16th day of January, April, July, and October of each year should pay the license collector the sum of 1 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 16th 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, transportation 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 to the federal Constitution, which provides that no state shall deny equal protection of the laws.

That the ordinances are in violation of section 3, art. 10, of the Constitution of Missouri, which requires taxes to be uniform upon the same class of subject within the territorial limits of the authority levying the tax.

They are in violation of section 4, art. 10, 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, art.

10, 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 10, §

11, of the Constitution of Missouri, which provides that taxation for city, town, and school purposes in cities having 30,000 inhabitants or more shall not, in the aggregate, exceed 100 cents on the $100 valuation.

That they are in violation of section 8704, chapter 72, art. 10, of the Revised Statutes of Missouri of 1919, which provides that municipal corporations shall confine and restrict their jurisdiction in the passage of ordinances to and in conformity with the state law on the same subject, and the ordinances are in conflict with a certain section of the statutes in relation to the taxation of gasoline.

Evidence was introduced which showed that the plaintiff operated a garage at the number mentioned, with a capacity of fewer than 20 cars, and paid $15 a year occupation tax on the garage; that he paid an ad valorem tax of $1.77 on the merchandise which he had on hand; that he paid the license tax of $10 for the maintenance of his gasoline curb pump. The plaintiff testified that he sold from the 10th day of April, 1923, up to the 1st of July, 1923, more than 15,000 gallons of gasoline; that his profit on the same was 2 cents a gallon. Other evidence was introduced showing the location and nature of plaintiff's business, which evidence included photographs showing the situation and location of his garage and gasoline pump.

The trial court rendered judgment for the defendant dismissing the plaintiff's bill, and he appealed from the judgment.

I. The first question for determination is whether the tax of 1 cent a gallon on the gasoline sold by the dealer is a property tax or an excise or occupation tax. Where a tax is imposed and is measured by the amount of business done or the extent to which the privilege is conferred or exercised by a taxpayer, irrespective of the value of his assets, it is an "excise tax." 26 R. C. L. p. 35; American Mfg. Co. v. St. Louis, 270 Mo. loc. cit. 41, 192 S. W. 402; State ex rel. McClung v. Becker, 288 Mo. loc. cit. 614, 233 S. W. 54; Simmons Hdw. Co. v. City of St. Louis (Mo. Sup.) 192 S. W. 397; American Mfg. Co. v. City of St. Louis, 250 U. S. 459. 39 S. Ct. 522, 63 L. Ed. 1084; Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, loc. cit. 354, 205 S. W. 196; 25 Cyc. 608; State v. Applegarth, 81 Md. 293, 31 A. 961, 28 L. R. A. 812; Southeast Express Co. v. City of Charlotte, 186 N. C. 668, 120 S. E. 475; Glasgow v. Rowse, 43 Mo. 479; St. Louis v. United Railways, 263 Mo. loc. cit. 444, 174 S, W. 78; Massachusetts Bonding & Insurance Co. v. Chorn, 274 Mo. 15, loc. cit. 29, 30, 201 S. W. 1122; Kansas City v. Richardson, 90 Mo. App. 450.

Where a tax is measured by the gross receipts of the business, the amount of premiums received by an insurance company, the number of carriages kept by a livery stable, the number of passengers transported by a street railway company, and other taxes of that nature, it is "occupation tax"-one form of excise tax. It has been applied to the volume of gasoline sold, such as the tax we have under consideration here. In re Opinion of the Justices (Me.) 121 A. 902; State v. Hart, 125 Wash. 520, 217 P. 45; Altitude Oil Co. v. People, 70 Colo. 452, 202 P. 180. In case of Bowman et al. v. Continental Oil Co., 256 U. S. 642, 41 S. Ct. 606, 65 L. Ed. 1139, it was held by the federal Supreme Court that such a tax was consistent with the due process and equal protection clauses of the Fourteenth Amendment to the federal Constitution.

Appellant cites the case of State ex rel. v. Shipman, 290 Mo. 65, 234 S. W. 60, in which the court held that the secured debt tax was a property tax and not an excise tax. The opinion in that case quotes from 26 R. C. L. p. 34, a definition of "excise tax" which covers occupation tax and all forms of taxation except property tax. The opinion by Judge Graves clearly points out why the secured debts tax was a tax on property. It has no resemblance to the tax under consideration here.

In the present case the tax is in no sense an ad valorem tax. There is no assessment of the property owned by the taxpayer; it would not matter how much gasoline he owned at any particular time, or whether he owned any gasoline at all. It is measured by the volume of his business, without any regard to the amount of gasoline on hand. Since he did not store or transport gasoline, the tax was measured by the amount of his sales. Therefore it is not a tax on property and does not come within the requirement of section 4, art. 10, of the Constitution, requiring property to be taxed in proportion to its value.

II, It is claimed by the appellant that because the purpose of the tax is to raise revenue, it therefore is not a license or occupation tax. It is pointed out by Cooley, in his Constitutional Limitations (7th Ed. p. 283), that a license for regulation is issued under the police power; but the exaction of the license fee with a view to revenue would be an exercise of the taxing power. The police power cannot be exercised for the purpose of exacting revenue. If the purpose of a license is regulation only, it is beyond the authority of the Legislature or a city government to impose it for the purpose of revenue. However, a license may be imposed strictly as a revenue measure in the exercise of the taxing power. 25 Cyc. 609; 12 C. J. 906; Kansas City v. Grush, 151 Mo. 134, 52 S. W. 286; City of St. Charles v. Elsner, 155 Mo. 680, 56 S. W. 291; State ex rel. McClung v. Becker, 288 Mo....