CITY OF CAPE GIRARDEAU, а Municipal Corporation, v. FRED A. GROVES MOTOR COMPANY, a Corporation, Appellant
Division Two, Missouri Supreme Court
September 10, 1940
142 S. W. (2d) 1040
“Q. He has some automobiles—isn‘t that a drainage ditch right behind his line (indicating)? A. I never located that.
“Mr. EUBANKS: I don‘t see the materiality of that.
“Mr. FEIGENBAUM: I want to show the inaccuracy of this plat. I will show it is way back here (indicating).
“The COURT: Objection sustained.”
As we read this record, the ditch referred to was on property not involved in this litigation. Therefore, its accuracy as to other properties was not material to any issue in this case. Moreover, the witness indicated the incompleteness and some probable inaccuracy in the plat by the following answer:
“The lines indicate the gеneral direction of the drain basin, although it may be curved out slightly. This does not show the detailed plans of construction, since we have that on our construction plans.”
We think if this was error, it was harmless.
Appellants next contend that the court erred in overruling their objection to the following question asked their witness Calquhoun:
“Q. You don‘t know of a single sale in the neighborhood at $50.00 a foot made within a few miles of this property within the last two years?”
This was objected to on the grounds that the date of injury should be confined to January 1, 1935, the date of the appropriation. Of course, the value of the land appropriated is to be fixed as of the time the land was appropriated. But this was cross-examination and it was proper to test the qualifications of the witness.
There are other assignments of error made by appellants, but we have disposed of the collateral questions raised by them under their first assignment of error.
We find no reversible error in the record; therefore, the judgment should be affirmed. It is so ordered. All concur.
Appellant, since November, 1914, has been engaged in business as an automobile dealer and automobile parts dealer in Cape Girardeau. Cape Girardeau is a city of the third class and authorized “. . . to levy and collect license tax оn wholesale houses, . . . wholesale merchants, merchants of all kinds, . . . automobile agents and dealers, automobile accessory dealers, . . .” et cetera. [
Article 1 of Ordinance No. 752 is entitled “Definitions” and, in part, reads:
“Section 1: The follоwing words, terms and phrases, when used in this ordinance, have the meanings ascribed to them in this section except where the context clearly indicates a different meaning:
“‘Auto Accessory Dealer’ includes any person, etc., who shall buy, manufacture, or assemble and sell or offer for sale any tires or other fixtures, appliances or accessories to or for automobiles, trucks or trailеrs except persons, etc., who are licensed as merchants.
“‘Automobile Dealer’ includes any person, etc., who shall buy, for the purpose of sale or trade, or who shall sell, trade or offer to sell or trade automobiles or motor vehicles.”
The definitions of many other occupations and businesses are set forth.
Other provisions, material here, are found in Article II of the ordinance and read:
“Section 1: There is hereby levied a license tax upon the privilege of engaging within the limits of this City, in any of the following named occupations or businesses, or doing or operating any of the following named things to-wit: Auto Accessory Dealer, . . . Automobile Dealer, Bakery, . . . [Some forty odd occupations or businesses are specifically named.]
“Section 2-A: Said license tax shall be in an аmount to be determined in each individual case as follows: Where the annual gross sales or gross receipts of such licensee or applicant for license from such business, occupation, or calling, during the preceding calendar year, have amounted to less than Five Thousand ($5000.00) Dollars, the sum of $11.25 per annum; Where the annual gross sales or gross receipts of such licensee or applicant for license from such business, occupation or calling, during the preceding calendar year, have amounted to more than Five Thousand ($5000.00) Dollars, the said license tax shall, per annum, be $11.25 for the first Five Thousand
($5000.00) Dollars and $2.25 per One Thousand ($1000.00) Dollars for each Thousand Dollars or fractional part thereof in excess of said Five Thousand ($5000.00) Dollars.” “Section 6: Upon making applicatiоn for license under provisions of this Article, the applicant shall, in person or by duly authorized officer or agent, make and file with the City Clerk in a manner and form prescribed by him and upon blanks furnished by said City Clerk, a statement showing the amount of gross receipts from sales, services and transactions by such applicant during the preceding year and such statement shall be verified by the affidavit of the applicаnt or his duly authorized officer or agent. Provided that when any person and etc., who has not been engaged in such business during the preceding calendar year shall make application for license, the City Clerk shall estimate the annual gross business which such applicant may be expected to enjoy during the first fiscal year and shall fix the amount of license tax which shall be paid before the licensе is issued, upon such estimated gross business at the rates set forth in Section II of this Article. At the end of the year for which such license was issued the licensee shall furnish the sworn statement in this Section provided and a readjustment of the license tax for such year shall then be made upon the basis of the gross receipts actually enjoyed.”
Other articles of the ordinance are immaterial; but we mention, for instance, that Article 3 levies specified annual license taxes upon a large number of specifically named subjects.
That the ordinance is a revenue, not a regulatory measure, an exercise of the taxing power, and subject to the provisions of
Appellant says the measuring of the tax by the “annual gross sales or gross receipts” “during the preceding calendar year” of licensees who were engaged in business during such calendar year under Sec. 2-A of the ordinance and measuring the tax of licensees who had not “engaged in such business during the preceding calendar year” by estimating “the annual gross business which such applicant may be expected to enjoy during the first fiscal year” and at the end of the year adjusting the tax for such year “upon the basis of gross receipts actually enjoyed” by said licensee under Sec. 6 of the ordinance results in nonuniformity of the tax upon the same class of subjects. For instance: If appellant did a $500,000 business in the calendar year of 1937, then when appellant‘s license expired on July 16, 1938, its license for the year ending July 15, 1939, would be $1125. Now if a new dealer began business on July 16, 1938, and did $250,000 worth of business between July 16, 1938, and July 15,
At first of a different view, we are of opinion our course has been charted. “The tax is uniform when it operates with the same force and effect in every place where the subject is found.” Head Money Cases, 112 U. S. 580, 594, 28 L. Ed. 798, 802, 5 Sup. Ct. 247, 252, speaking of
Section 1 of Art. 1 of the ordinance specifically defines the classes of subjects affected. The legislative department of the city made no attempt to subclassify any of the forty-odd classes of subjects specifically named in Sec. 1 of Art. 2 of the ordinance into those who had been and those who had not been “engaged in such business during the preceding calendar year” in said city; but so far as any classification provisions of the ordinance are concerned, placed all in the same class for license tax purposes irrespective of the time they first engaged in such business within said city. Consistent therewith Sec. 2-A of Art. 2 imposed a graduаted rate or measure of the license tax upon all subject to the tax. Section 6, however, prescribed a different rate or measure of the license tax for those specifically named in Sec. 1 of Art. 2 who had not been engaged in such business within the city “during the preceding calendar year.” To hold the subjects named in Sec. 1 of Art. 2 of the ordinance are subdivided and again classified unto thosе who had been and those who had not been engaged in such business within the city “during the preceding calendar year” is to establish classes of subjects not specifically established by the lawmakers in the classification provi-
The first case presenting an issue of uniformity under
In Boonville National Bank v. Schlotzhauer (Banc), 317 Mo. 1298, 1319, 298 S. W. 732, 741, 55 A. L. R. 489, 502, the bank sought to enjoin the collection of an alleged illegal portion of a tax resulting from the intentional and systematical assessing of its shares of stock for the purposes of taxation at 100 per centum while all other property was assessed at only 75 per centum of its true value. The court said: “There is no reason why bank stock should be assessed at its full value and all other property at only seventy-five per cent of its full value. Such action is not only a fraud upon the taxpayers who are thus assessed the full value of their property, but it is a violation of the uniformity and due process clauses of our State Constitution, as well as a violation of the
Brinkerhoff-Faris Trust & Savings Co. v. Hill, was twice before court en banc. Plaintiff‘s complaint was that its bank stock was assessed at 100 per centum of its value, whereas other property was assessed at 75 per centum of its value or less. Upon first consideration (323 Mo. 180, 194, 19 S. W. (2d) 746, 752) plaintiff‘s bill was dismissed for reasons not material here, but court en banc said: “We do not recede from any of the positions taken in the Schlotzhauer case . . .” Upon second consideration (the cause having been remanded by the United States Supreme Court—see 281 U. S. 673, 50 Sup. Ct. 451, 74 L. Ed. 1107), court en banc, upon the authority of the
[See, also, Columbia Terminals Co. v. Koeln (Banc), 319 Mo. 445, 455, 3 S. W. (2d) 1021, 1024[5]; Jefferson City Bridge & Transit Co. v. Blaser, 318 Mo. 373, 386, 300 S. W. 778, 785[11, 13, 14]; City of St. Louis v. Consolidated Coal Co., 113 Mo. 83, 88(III), 20 S. W. 699, 700(3).]
In the instant case the ordinance provisions specifically direct the nonuniform appliсation of the rate or measure of the tax upon identical classes of subjects as established and recognized by the ordinance.
If we treat the division of those subject to the tax into those who had been and those who had not been “engaged in such business during the preceding calendar year” as a subclassification of the classes subject to the tax, rather than as affecting the uniformity of the rate or measure of the tax, such subclassification may not be sustained.
Ex parte Dreibelbis, 133 Tex. Cr. 83, 85, 109 S. W. (2d) 476[4], had under consideration an ordinance imposing a license fee on temporary merchants, defined as “any person, . . . resident or otherwise, who shall engage in the business of selling . . . any merchandise . . . in the city . . . and who has not been engaged in and conducting a similar business for at least twelve months prior to the effective date of this ordinance.” The court held: “That the ordinance in question is discriminatory is clearly demonstrated by the fact that a person who has been engaged in one of the designated businesses in said city for a year or more is exempt from the payment of the tax, while another person who has not been so engaged for such length of time is subject to the payment of the tax, and, for his failure to do so, punishable by fine, although both parties may be engaged in the same kind of business, carrying the same kind and the same amount of merchandise. If this is not discrimination, then what is it?”
In Ex parte Wacholder, 1 Cal. App. (2d) 254, 258[4, 5, 6, 7, 9], 36 Pac. (2d) 705, 707[4, 5, 9, 10, 12], the court considered an ordinance requiring florists “not heretofore having been so engaged for at least 365 days last past” to, in addition to obtaining a license, “post a cash bond” et cetera. The court said: “Here is a plain discrimination between the persons engaged in a like business made dependent upon the time in which they have been so engaged.” “Nor has the city council the power to impose a penalty upon one person transacting a like business with another person simply because person No. 1 may not have been in business for quite so long a period as person No. 2. Such ordinances . . . are simply exclusive and discriminatory . . .”
Jersey City v. Chasan, 81 N. J. L. 315, 79 Atl. 1058[2], considered an ordinance requiring a license to drive a horse attached to a busi-
The city cites many authorities. Ploch v. City of St. Louis (Banc), 345 Mo. 1069, 138 S. W. (2d) 1020, 1023[1], involved an ordinance requiring the annual registration of merchants engaged in selling cigarettes and “a tax of $1 per thousand on cigarettes sold, offered, or displayed for sale at retail. The tax is collected by the sale of stamps to the merchant, who must place them on packages of cigarettes for sale.” The measure of the tаx was the same upon all subject to the tax. The court said (1023[4]) cigarettes are not a “‘useful commodity;‘” “the nicotine is harmful;” the size and mildness “tempt the young to indulgences which produce tobacco addicts. This justifies the isolation of cigarettes from other forms of tobacco.” Ex parte Asotsky (Banc), 319 Mo. 810, 820, 5 S. W. (2d) 22, 25[4], is to like effect. The city‘s cases do not rule the issue under discussion; see, for instance: Simmons Hardware Co. v. St. Louis (Mo.), 192 S. W. 394, 396[2]; Viquesney v. Kansas City (Banc), 305 Mo. 488, 499 (V), 266 S. W. 700, 703[11]; State ex rel. People‘s Motorbus Co. v. Blaine (Banc), 332 Mo. 582, 590[4], 58 S. W. (2d) 975, 978[3]; City of Sedalia ex rel. v. Standard Oil Co., 66 Fed. (2d) 757, 760[4, 5]; Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 445, 32 S. W. (2d) 281, 284[9]. State ex rel. International Shoe Co. v. Chapman, 311 Mo. 1, 14, 276 S. W. 32, 35, held an ordinance did not authоrize the computation of a license tax on shoes manufactured beyond the jurisdiction of the city. State ex rel. International Shoe Co. v. Chapman, 318 Mo. 99, 106, 300 S. W. 1076, 1078, involved the commerce clause of the Federal Constitution.
Statutes and ordinances which relate to persons or things of a class are general laws, but statutes and ordinances which relate to particular persons or things of a class are special laws, setting up forbidden discriminations and arbitrary classifications. An ordinance levying a license tаx on all occupations within the city which has not been engaged in the business “during the preceding calendar year” while exempting those which had been so engaged during the preceding calendar year, or vice versa, would not meet constitutional requirements. The difference between the instant ordinance provisions and the illustration is one of degree and not of principle under a constitutional provision requiring the tax to be uniform upon the same class of subjects. For instance, all automobile dealers within the ordinance definition of automobile dealers are engaged in precisely the same business. There is no natural and substantial difference, inhering in the subject matter with respect to localities, persons, occupations or property, between the automobile dealers who have
The City sаys that since there was no evidence “of a new automobile dealer just starting in the business,” appellant is in no position to urge the issue. The constitutionality of an ordinance is generally a question of law involving an interpretation of its terms, objects, purposes and practical operation rather than a question of fact. The ordinance exacts a license tax and provides penalties. Appellant is subject to its provisions, if valid. The city seeks to enforce the ordinance against appellant. St. Louis v. Spiegel, 75 Mo. 145, was before the court upon a judgment sustaining defendant‘s motion to dismiss a prosecution under an ordinance on the ground the ordinance contravened
It follows that the provisions of the ordinance establishing different measures for the tax upon automobile dealers who had not been engaged in such business during the preceding calendar year and upon automobile dealers who had been engaged in such business during the preceding calendar year are unconstitutional and void.
The judgment is reversed. Cooley and Westhues, CC., concur.
PER CURIAM:—The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.