154 Mo. 375 | Mo. | 1900
This is a proceeding by mandamus, commenced by the relator in the Buchanan Circuit Court, for the purpose of compelling the auditor, treasurer and comptroller of the city of St. Joseph, the defendants herein, to issue to him a merchant’s license to conduct a department store in said city. The defendants had refused to issue the license applied for, unless the relator would first pay into the city treasury two-thirds and into the State treasury one-third of the amount required to be so paid by section 6 of what is known as the anti-department store act, approved May 16, 1899 (Laws 1899, p. 72), in addition to the tax imposed by the general laws of the city for a merchant’s license.
In the alternative writ, which follows in detail the allegations of the petition therefor, the laws and ordinances of
Eor a return to the alternative writ, the defendants filed a demurrer alleging as grounds therefor that the matters and things set forth in the alternative writ are not sufficient in law or equity to entitle the plaintiff to the relief asked for, or to authorize the issuing of a writ of mandamus.
The court below overruled said demurrer, and in its de
Erom this final decree, the defendants have appealed to this court. The only question involved in this controversy is as to whether this act, known as the anti-department store law, a brief synopsis of which is given below, is operative or constitutional.
By section 1 of the act, all goods, wares and merchandise in the cities to which it now applies are divided into seventy-three classes, and these classes are then re-arranged into twenty-eight groups or departments. By section 2 of the act from and after one hundred and twenty days after its passage, it is made unlawful for any person or persons, firm, corporation or association of persons to have on hand for sale, sell or expose for sale at retail, any goods, wares and merchandise of more than one of these several classes or groups, without first having obtained a license therefor, as provided for in the act.
By section 3 it is provided that during the 120 days from the passage of the act, the board of officers of the city charged with the duty of issuing merchant’s licenses, and after that a license commissioner for each city to be appointed by the governor, are authorized to issue merchants’ licenses. By a proviso in this section, the act is limited in its application to such cities of the state as have or may hereafter have 50,000 inhabitants or more. By section 4, the applicant for license is required to state the class or group under which he proposes to conduct his business, and also
By section 5, the board or license commissioner, charged with the duty of issuing licenses, is empowered to fix the sum to' be paid for licenses required by the act, but which sum is not to be fixed at less than $300 nor more than $500 for every class or group or for any particular article of any class 'Or group named in the application, in addition to the principal business to be conducted by the applicant. The license fee thus fixed is to be uniform in each city. Section 6 prohibits the issuance of any license until the applicant shall have paid into the city treasury two-thirds and into the state treasury one-third of the amount required to secure the license. Section 7 provides a punishment by imprisonment in the county jail for a term not exceeding one year, and the payment of a fine of not less than $100 nor more than $500, for the violation of any provision of the act, and makes each day’s violation a new offense. Section 8 provides that the act “shall not apply to manufacturing establishments, warehouses or auction houses or to any establishment where not more than fifteen persons are employed.”
No question is made here by respondent as to the right of relator to compel by mandamus the issuance to him of the license applied for if the act known as the añti-department store bill is unconstitutional or inoperative as declared by the circuit court in its disposition of the case. The duty of respondents being clearly ministerial, where all the requirements of the law preliminary to acquiring a license have been complied with by relator, its issuance if refused was properly compellable by mandamus. And it might further be added that no question ought to be raised as to the character of the imposition levied by the act, notwithstanding it is called a “license fee,” and the act imposing it is designated, “an act
In order to sustain legislation of the character of the act in question, as a police measure, the courts must be able to see that its object to some degree tends towards the prevention of some offense or manifest evil, or has for its aim the preservation of .the public health, morals, safety or welfare.
No suggestion is made by counsel in their effort to sustain this act, and to our mind none can be conjectured, why the selling of any or all of the articles of merchandise embraced in two or more of the classes or groups designated therein, in one store or building, under one head or unit of management, when fifteen or more persons are employed, is a thing of danger to the public, or that the morals, health, safety or comfort of the community will to any extent be injured or prejudiced thereby, in any manner different or greater than would result if the same articles were sold in different store buildings run by the same person, corporation or company as independent establishments and each employing fifteen or more persons, or when all of the enumerated articles are sold in one store, wherein less than fifteen persons are employed. If the selling of the different articles enumerated in any one of the classes or groups designated by the act is innocent and harmless when pursued separately as a business, how does it become harmful and dangerous merely because the articles in two or more classes or groups designated in the act, become united for sale under one unit of management and conducted in one building where fifteen or more persons are employed that would call for special legislation with increased and onerous license fees or tax burdens imposed. Such grouping together for sale or dis
As said above, the act though entitled “an act to regulate business and trade in cities having a population of fifty thousand inhabitants and over” is clearly an exercise of the power of taxation and must be enforced, if at all, under and according to the constitutional' limitations and restrictions on the subject of taxation. Conceding that the Legislature is not limited to any form of taxation, and that it may impose a license tax as well as a direct tax upon the department store merchant; and further treating the imposition provided in the act in question as a tax imposed direct by the legislature, and not a delegation of power to the commissioner therein named, to fix an uncertain and varying sum between $300 and $500 as his fancy may suggest (which the relator in this case most strenuously contends is done), then the tax to be paid under the act in question, is violative of the provision of section 10 of article X of our Constitution, which declares that “the General Assembly shall not impose taxes upon counties, cities, towns, or other municipal corporations or upon the inhabitants or property thereof, for county, city, town or other municipal purposes, but may, by general laws, vest in the corporate authorities the power to assess and collect taxes for such purposes.” By section one of the same article it is further provided that “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.”
Section six of the act in question, provides that, “No such license shall be issued until the person, firm, corpora
But, aside from the question as to whether the tax to be imp'osed be considered as a municipal or state tax, that should have been imposed by the Legislature of the state or by the cities of the state, relators insist that the act is vitally defective in that it delegates to the commissioner named in the act to be appointed by the Governor, the power to fix the amount of the license fee or tax, and for that reason violates section 1 of article X of the Constitution.
By section 5 of this act it is provided that “the said board or officer in any such city charged with the duty of issuing merchant’s licenses shall have power to fix the sum to be paid for licenses required by this act, but such license fee shall not be fixed at less than three nor more than five hundred dollars for every class or group, or for any particular article of any class or group mentioned in the application for such license,” etc. While a minimum below which and a maximum above which the commissioner can not go, has been designated in the act, the authority to name and fix the amount of the imposition between these designated sums, is plainly delegated to the commissioner, and can be exercised according to his arbitrary discretion in the premises, subject only to the qualification as further set out in the section, “that the license fee exacted shall he uniform in each city, in which it is collected.” Until the commissioner acts and determines upon the rate of the imposition to be levied within the limits of the city for which he is appointed, no one of that community can determine from the law itself what the license fee or tax is or will be; until he acts the rate of the tax is an unknown quantity. In fact, until he acts there is no tax provided. An undetermined tax, is in law no tax. The determination of the amount or rate of a
And here, again, on account of the delegated authority to the commissioner, to be named under the act, to fix the sum to be paid for the license therein required^ the further objection is urged to it, that it is violative of the uniformity clause of our state Constitution, which by section 3 of article X, provides that all taxes to be levied and collected for public purposes “shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general law.” Ignorng for the present the question that the merchant doing business in the cities of our state having a population of 50,000 inhabitants or more, in one store or building when 15 or more persons are employed, have been arbitrarily singled out by this act as a class to themselves, that additional burdens might be imposed upon them, from which all other merchants of the state are exempted, all of the class of merchants thus arbitrarily named, under this act, are not subject to the same uniform rate of tax. Even as to them the tax may vary according to the whim and fancy of the different commissioners to be named by the Governor for the different cities, as will be seen from a reading of the act.
The merchant in St. Joseph, for selling the articles enumerated in each of the classes or groups designated in the act (more than one), may be required to pay three hundred dollars, while for selling the same articles in Kansas City his brother department store merchant may be required to pay four hundred dollars, and the merchant of St. Louis be required to pay five hundred dollars, and all under the same act, and where a part of the tax to be collected from each goes to the same common public purpose. So the practical operation of the act in question not only
But the inequality and want of uniformity in the matter of the application of the act, to the merchant of the designated class, is made more striking when it is suggested that under it the commissioner (say for the city of St. Joseph) may determine that he will require a license fee for selling the articles classified and enumerated under each one of the 28 groups of articles designated in the act to be kept and sold by the merchant of that city (less the articles named in any one group, which he may sell without the requirement of a license) and then the highest license fee that would be required in that city for selling all articles of merchandise enumerated in the act, would be 300 times 27, or $8,100. While in St. Louis, perhaps, the commissioner appointed to look after the interest of that city, being a man of more comprehensive views and of a disposition to give to the act a more liberal and far-reaching interpretation, to meet the financial pressing needs of that city, and being a man of bolder financial reach, might determine that a license fee for each of the 73 classes of articles enumerated in the act was required, and would further fix $500 as the amount of the license fee to be imposed for the selling of articles of each class, over and above the articles of one class that can be
Thus it is seen that the uniformity clause of the Constitution has been violated in this act, not only by the arbitrary and unreasonable classification of merchants of a natural class, for the particular purpose of this particular imposition, and also on account of the discretion given to the commissioner to be named under the act, to fix, in different cities, different license fees or rates of taxation upon the merchants of the same designated class; but the very uncertainty in the language of the act has introduced another element of possible and probable inequality. and want of uniformity in the matter of determining the amount of the tax to be fixed and imposed.
In the exercise of the taxing power, which is the very essence of sovereignty, and of the gravest consequences to the citizen, there ought to be no ambiguity or uncertainty in the language of the law. An act which attempts to levy such burdensome taxation as that provided in the act in question, should at last be plain and past all misunderstanding as to the basis on which the computation is to be made, and yet from a reading of the act no one can tell whether for the selling or exposing for sale, by a merchant of the designated class, all the different articles of goods, wares and merchandise enumerated therein, a license fee, or tax is to be exacted, for selling or exposing to sale the articles named in each of the seventy-three classes, or only the twenty-eight groups of articles.
Section 5 of the act provides that a license fee shall be
But the uncertainty as to the meaning of the act is not only made to appear from the use of irreconcilable words and language found therein, but also on account of the absence of proper words therein defining the life and duration of the license to be issued by the terms of the act. Whether the license provided for in the act is to issue and run for a day, month or a year, or for life of the applicant, or for the duration of his business at a fixed place, nothing is to be found in the act to inform one, and again we are driven to the field of conjecture and speculation, without data upon which to predicate a construction as to what is meant. We know of no rule of construction that would justify this court giving to this act a definite meaning not somewhere disclosed or indicated within its four corners. The act is clearly void for uncertainty.
But independent of all these objections to the form and structure of the act; to the mode, manner and amount of the attempted imposition, or as to whether the imposition be treated as a tax or a license; the act is further assailed upon the broad constitutional ground, that as unwarranted class legislation it is violative of the natural rights of the citizen
The protection of liberty and of property, defined in section 4 of the Constitution, supra; “as the gains of one’s industry,” are among the principal objects for which free government among men has been established, and it is further declared in the closing paragraph of said section, “that when government does not confer this security it fails of its chief design;” and of these rights no person shall be deprived without “due process of law,” which means, as declared by this, as by all courts of the land, to be “the law of the land,” and these words when having reference to legislative enactments, must mean a requirement of action or abstinence, binding upon and affecting alike each and every member of the community of the same class or of similar circumstances, enacted for the general public good or welfare. Does the act in question, by the imposition of the license fee provided for therein, infringe upon the liberty of the citizen whom it is to effect, or of his right to the enjoyment of the gains of his industry, or its equivalent, his property?
If the terms life, liberty and property, as used in the Constitution, are “representative terms and cover every right to which a member of the body politic is entitled under the law,” as said by Sherwood, J., in State v. Julow, 129 Mo. loc. cit. 172, and that within this comprehensive scope are embraced the right to buy and- sell as others may; and to pursue such honest calling, vocation or business, as the citizen may choose, subject only to-such restraints or the imposition of such burdens as may be required or imposed for the general good, and if “due process of law,” is to be defined as “the law of the land,” designed to protect and
It follows from what has been said, that the judgment of the circuit court directing the issuance of the peremptory writ of mandamus -should be affirmed, and it is so ordered.’
SEPARATE OPINION.
I agree to the affirmance of the judgment of the trial court, upon the grounds, first, that the act considered is clearly class legislation and therefore unconstitutional, and, second, that the act is incomplete and is not a law and does not constitute a rule of conduct, and is therefore void. I do not agree that what is commonly termed an occupation tax, which properly expressed means a license or permission to do business, is in any proper sense a tax. Such license fees have always been held constitutional in Missouri and elsewhere provided they apply equally to all persons similarly situated.