803 S.W.2d 106 | Mo. Ct. App. | 1990
Plaintiffs appeal the judgment of the trial court in favor of defendant license collector. The action brought by plaintiffs sought the return of tax monies paid in protest pursuant to § 139.031, RSMo 1986. We affirm.
Plaintiffs are five automobile dealerships who assert that the St. Louis City Merchants’ License Fee is invalid. The present suit attempted to achieve the return of funds paid to the License Collector in 1986. In their petition plaintiffs alleged the tax is authorized by the Revised Code of the City of St. Louis,
The trial court determined that “the wording of the city code section describing the method of computation as $2.00 on each $1,000 or fractional part thereof of sales by the merchant clearly indicates that the tax is a sales tax and not a gross receipts tax.” However, the court held that the license fee was valid and enforceable because it was enacted prior to the effective date of the “City Sales Tax” law which required voter approval of sales tax issues.
On appeal plaintiffs argue that by its terms the Merchants’ License Fee is determined by reference to the sales of each merchant. This, according to plaintiff, makes this fee a sales tax which is prohibited by § 94.510, RSMo 1986 which states: “no [city sales tax] ... shall be effective unless the legislative body submits to the voters of the city, at a public election, a proposal to authorize the legislative body of the city to impose a tax under the provisions of sections 94.500 to 94.570.” In addition, plaintiff refers us to § 94.510.9 of the “City Sales Tax Act” which states: “All laws and parts of laws inconsistent or in conflict with the provisions of this Act are hereby repealed to the extent of such inconsistency or conflict only.” We note that this repealing section was itself repealed by the legislature in 1977.
Although the city argues that the tax is not a sales tax, we agree with the trial court that it is and thus we must confront plaintiffs’ complaints. Initially we state that the act involved here has subsequently been repealed and the issue here is only as to recovery of money paid under that tax.
Plaintiffs’ argument, relative to its assertion that the tax is unenforceable because there was not a vote, has two parts: first, that by its terms the “City Sales Tax Act” prohibits the imposition of a license fee based upon sales so long as the funds
In the present case, while there is an apparent conflict, there is also substantial evidence to suggest that the legislature intended the “City Sales Tax Act” to be applied prospectively. An analogous enactment, the “Hancock Amendment”, which by referendum amended the state constitution to require voter approval of any increase in spending or taxing, specifically limited its scope to actions taken after its ratification. See Roberts v. McNary, 636 S.W.2d 332 (Mo. banc 1982). The purpose of passage of both these measures was to prevent governmental bodies from increasing taxes and fees without voter approval. Since both the “City Sales Tax Act”, enacted in 1969, and the “Hancock Amendment”, enacted in 1980, sought to solve similar problems it is reasonable that similar procedures were contemplated for both.
This interpretation of § 94.510, RSMo 1986 also conforms to several recognized assumptions that guide courts in statutory construction. Article I, § 13 of the Missouri Constitution specifically prohibits the enactment of any law retrospective in its operation. The only exceptions are if 1) the legislature clearly intended that it do so, and 2) where the statute is procedural and does not affect any substantive right. State ex rel. Webster v. Cornelius, 729 S.W.2d 60, 65 (Mo.App.1987). A substantive right has been defined as “those which take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability.” Id. at 66. Clearly, retrospective repeal of the ordinance in question would impair the City’s “vested right” to collect the license fee.
In addition, at the time § 94.510 was enacted the enabling statute for the city ordinance, § 92.045, RSMo 1986, was specific in its approval of sales as a measure of the amount of fee that could be charged to merchants. We must presume the legislature was aware of the existence of § 92.045 at the time it enacted § 94.510.
Plaintiffs also complain that the Merchants’ License Fee discriminates against established merchants in violation of both the state and federal constitutions. Plaintiffs claim that since new merchants pay only $20 for the first year while they, as established merchants, pay at the rate of $2.00 per $1000 of sales, they have been denied equal protection of the law. We disagree. The flat rate is applicable to both new businesses, whose sales obviously cannot be determined, and to any business that has less than $10,000 of sales. Plaintiff has cited two cases to us that they allege support their constitutional challenge. Neither City of Cape Girardeau v. Fred A. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040 (1940) nor Kansas City v.
Judgment affirmed.
. Hereafter City Code.
. Section 94.510 was effective October 13, 1969. The License Tax provisions of the City Code were passed on August 16, 1969.
. The subsequent repeal of the repealing section (9) of § 94.510 in 1977 lends support to the premise that its intent was perhaps not as broad as its language and that legislators were themselves unsure of its meaning or uncomfortable with its implications.
. Section 92.045 was enacted in 1967.