142 S.W.2d 1040 | Mo. | 1940
Lead Opinion
The City of Cape Girardeau, Missouri, recovered a judgment of $1,140.75 against Fred A. Groves Motor Company, a *766 corporation, for a city license tax due July 16, 1938. Defendant appealed and presents the main contention that the ordinance provisions for measuring the tax violate the uniformity provision of Sec. 3, Art. 10, of the Missouri Constitution.
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 on wholesale houses, . . . wholesale merchants, merchants of all kinds, . . . automobile agents and dealers, automobile accessory dealers, . . ." et cetera. [Laws 1931, p. 276, Sec. 6840, R.S. 1929.] Ordinance No. 752, adopted September 11, 1926, and Ordinance No. 829, substituting Section 2-A in lieu of original Section 2 of Article 2 of Ordinance No. 752, adopted July 5, 1938, are involved.
Article 1 of Ordinance No. 752 is entitled "Definitions" and, in part, reads:
"Section 1: The following 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 trailers 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 amount 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 *767 ($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 application 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 applicant 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 license 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.
[1] That the ordinance is a revenue, not a regulatory measure, an exercise of the taxing power, and subject to the provisions of Sec. 3 of Art. 10 of the Missouri Constitution is not questioned. [City of St. Charles v. Schulte,
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, *768 1939, such licensee would pay $562.50. If appellant's business was only $250,000 between July 16, 1938, and July 15, 1939, appellant would still pay $1125 for the privilege. If the new dealer and appellant each did a $1,000,000 business between July 16, 1938, and July 15, 1939, the new dealer would pay a tax of $2250 whereas appellant would pay only the $1125 for the same privilege. There was testimony, uncontradicted, that following the calendar year 1937 appellant's business fell off more than forty per cent.
[2] 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,
[3] 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 graduated 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 those 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 provisions *769
of the ordinance, and smacks of judicial legislation and classification. The issue, as the writer views it, goes to the uniformity of the rate or measure of the tax rather than the reasonableness of the lawmakers' classification of the subjects of the tax; and since the ordinance provisions inform us the lawmakers placed, for instance, all automobile dealers in one class for the purpose of the license tax, constitutional requirements that the tax be "uniform upon the same class of subjects within the territorial limits of the authority levying the tax," which requires the rate or the measure of the tax to be the same for all automobile dealers within the city, necessitates a holding that the ordinance contravenes constitutional provisions by reason of Sec. 6 prescribing a rate or measure of the tax for some automobile dealers differing from that prescribed for other automobile dealers. [Consult Kansas City v. Grush,
The first case presenting an issue of uniformity under Sec. 3, Art. 10, Mo. Const., held an ordinance placing a license tax of $100 upon owners of meat-shops in one portion of a city and $25 in other portions of said city in conflict with said constitutional provison; reasoning: ". . . all persons engaged in the same business should be taxed alike." [St. Louis v. Spiegel,
In Boonville National Bank v. Schlotzhauer (Banc),
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 (
[See, also, Columbia Terminals Co. v. Koeln (Banc),
In the instant case the ordinance provisions specifically direct the nonuniform application 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,
In Ex parte Wacholder,
Jersey City v. Chasan,
The city cites many authorities. Ploch v. City of St. Louis (Banc),
[4] 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 tax 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 *772
been engaged in business for a number of years and those who have been engaged in such business for less than a year within a given city justifying any distinction for the purposes of taxation for revenue. [Consult Ex parte French,
[5] The City says 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,
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.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur. *773