296 S.W. 415 | Mo. | 1927
This case comes to the writer on reassignment. Petitioner, George M. Siemens, is an architect residing in Kansas City, Missouri, and there practicing his profession. On May 20, 1926, he was convicted in the municipal court of said city on an information charging him with the violation, on or about May 19, 1925, of a city ordinance imposing a license or occupation tax on architects. Refusing to pay the fine imposed by the court he was committed as by said ordinance provided, whereupon he filed petition for writ of habeas corpus in this court. Respondents waived the issuance of a formal writ and made return, and petitioner waived the production of his body before the court.
In their return respondents admit the detention of petitioner and seek to justify the same by pleading the conviction aforesaid, and showing that it was had under Ordinance No. 38141 of Kansas City, approved July 1, 1920, as amended by Ordinance No. 45745, approved June 6, 1923, which, among other like provisions relating to other occupations, imposes a tax as follows:
"The fee for such license shall be as follows: Architects employing not more than one draftsman, one year, $25. Employing more than one draftsman, one year, $50. . . ."
Petitioner filed answer to the return in which he invokes the due process clause, Section 1 of the Fourteenth Amendment, of the Constitution of the United States; also Section 4, Article II, of the Constitution of Missouri, which provides that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; and further urges that the ordinance is illegal and void because the city charter of 1908, which was effective from its adoption until April 10, 1926, in limiting and defining the city's power, did not specially name the occupation, calling or profession of an architect as taxable by said city; that said city is not authorized by any general statute of Missouri to tax the same, and that said ordinance insofar as it attempts or pretends to impose a license tax upon architects as a class, or upon this petitioner as an architect, is void, illegal and invalid, and of no force or effect, and is in direct violation of the terms of Section 8702, Revised Statutes 1919, which provides:
"No municipal corporation in this State shall have the power to impose a license tax upon any business avocation, pursuit or calling, unless such business avocation, pursuit or calling is specially named as taxable in the charter of such municipal corporation, or unless such power be conferred by statute."
Petitioner contends that the above statute, under the provisions of Section 16 of Article IX of the Constitution, and Section 1, Article III, of the city charter, supersedes said, ordinance and renders it invalid; while it is the position of respondents that said ordinance was enacted pursuant to city powers defined in the fourth clause of *740 Section 1, Article III, of Kansas City's charter framed in 1908 under Section 16 of Article IX of the Constitution of 1875, and is not affected by the provisions of the above statute. The parts of Section 1, Article III. of the charter which are here referred to are as follows:
"Sec. 1. All powers conferred upon the city by the charter or the general laws of the State of Missouri shall be exercised by ordinance, except as otherwise provided in this charter, and the mayor and common council shall have power and authority, by ordinance, not inconsistent with the Constitution and laws of this State, and subject to the limitations expressed in this charter:" . . .
"Fourth: To license, tax and regulate manufacturers" (Here follow many specially named occupations ending with "common carriers," architects not being included.)
"And to license, tax and regulate all occupations, professions, trades, pursuits, corporations and other institutions and establishments, articles, utilities and commodities, not heretofore enumerated, of whatsoever name or character, like or unlike, and to fix the license tax to be paid thereon or therefor; and in the exercise of the foregoing powers to divide the various occupations, professions, trades, pursuits, corporations and other institutions and establishments, articles, utilities and commodities into different classes." . . .
It is conceded that the license tax here sought to be imposed is an attempted exercise of the taxing power, and not a police regulation. A city has no inherent power to tax. This power rests primarily in the State and may be delegated by constitutional provision or by statutory enactment. The authority to tax must be expressly granted or necessarily incident to the powers conferred, and in case of doubt the power is denied. [7 McQuillin on Municipal Corporations (Suppl.) sec. 987.]
The taxing power here sought to be exercised is not conferred upon Kansas City by any statute. If authority therefore exists it must be found in the charter.
A city framing its own charter under the Missouri Constitution has been declared by the highest judicial authority in the land to be in a very just sense an imperium in imperio, and to the prescribed extent this is true. [St. Louis v. Western Union Tel. Co.,
The above constitutional limitation was construed by Judge GANTT speaking for this court en banc in Kansas City v. Bacon,
Again, in Brunn v. Kansas City,
We look then to "the general scope of the policy of our Constitution and laws" pertaining to this particular exercise of the taxing power. As early as the year 1848 this court held that the State had power to tax all professions. [Simmons v. State,
This clear vindication of the salutary and generally recognized policy of the law that any delegation of the taxing power must be in clear and unambiguous terms jealously guarded and strictly construed has always been adhered to in this State. [Am. Express Co. v. St. Joseph,
The Laughlin decision was a judicial expression of the policy of the law with reference to this particular exercise of the taxing power and was before the framers of the Constitution of 1875. When by that instrument they granted cities having a population of more than one hundred thousand inhabitants the power to frame charters for their "own government," they also provided Section 1 of Article X, not found in the previous Constitution of 1865, which reads as follows: "The taxing power may be exercised by the General Assembly for state purposes, and by counties and other municipal corporations, under authority granted to them by the General Assembly, for county and other corporate purposes."
Evidently, therefore, when the limitation was written in Section 16 of Article IX that such charters should be "consistent with and subject to the Constitution and laws of the State" and "always be in harmony with and subject to the Constitution and laws of the State," it was intended that they should be consistent with and subject to statutes of general application defining the scope of the policy of the law with reference to the all important and jealously-guarded power to tax.
That Section 8702, Revised Statutes 1919, first appearing as Section 1900, Revised Statutes 1889, is the consistent outgrowth and statutory expression of the policy announced in the Laughlin case, is apparent from an examination of the trend of special charter provisions and judicial decisions preceding its enactment. In 1885 a charter provision of the city of St. Louis was construed which conferred power upon the mayor and assembly to license, tax and regulate certain named occupations and professions, among which were those of lawyers, doctors, dentists, etc., and immediately following the occupations named were the words: "and all other business trades, avocations or professions whatever." The court held in city of St. Louis v. Herthel,
In City of St. Louis v. Bowler,
From the foregoing it appears that the city of St. Louis, under its constitutional grant of power to frame a charter, had by a blanket clause arrogated to itself the power to impose a tax on all occupations, professions and pursuits, whether specially named or not, and what the city of St. Louis had done every other city, whether chartered under constitutional grant of power or by legislative enactment, would seek to do. Such was the situation after the Bowler decision in 1887, and it was evidently for the purpose of checking this wholesale delegation of the taxing power through a statutory expression of a previously well-defined, salutary policy that Section 1900, Revised Statutes 1889, was enacted. It is, in effect, a legislative finding and declaration of policy that unless the business avocation, pursuit or calling sought to be taxed by the municipal corporation is specially named as taxable in the charter, or unless such power is conferred by statute, the power to tax is not clearly and unambiguously delegated and therefore, consistent with the general sound policy of the law, it cannot be exercised. We think this statute applies to all municipal corporations whether under general or special charter. We inferentially so held in Pierce City v. Hentschel, 210 S.W. 31, l.c. *744
32; Kansas City v. Grush,
For the reasons above stated we rule that Section 8702, Revised Statutes 1919, controls as against the general provision of Kansas City's charter adopted in 1908 under which it is sought to tax petitioner. This being decisive of the case we deem it unnecessary to rule upon other questions raised.
It follows that petitioner should be discharged, and it is so ordered. All concur, except Gantt, J., not sitting.