Viquesney v. City of Kansas

*493 WHITE, J. This action is brought to restrain by injunction the City of Kansas City and its officers from enforcing certain ordinances providing for levy and collection of certain taxes which affect plaintiff’s business. The plaintiff, Jules A. Viquesney, maintained a public garage at 4605 Prospect Avenue; also, at the same place, in the parkway between the curb and sidewalk he maintained and operated a gasoline pump and tank. Ordinance No. 38141, of Kansas City, entitled: “An Ordinance providing for the restriction and licensing of various occupations,” etc., fixed a license tax on garages: those with capacity less then twenty motor vehicles, $15. Plaintiff’s garage had capacity of fewer .than twenty motor vehicles, and the fifteen-dollar rate applied to him. The tax on his gasoline curb-pump was ten dollars. That ordinance also provided for a tax on retail merchants. Ordinance 39337 amended Ordinance 38141, by providing that every wholesale merchant, manufacturer, and every retail merchant, “except as otherwise provided in this ordinance” (enumerating numerous kinds of businesses affected), should obtain a license for such business and pay to the city the sum of fifty cents for each one thousand dollars, or fraction thereof, of the annual gross receipts of the business so operated or managed. Ordinance No. 44965 further amended Ordinance No. 38141, by adding several new sections: New Section 3a required every person engaged in the business of selling or offering for sale gasoline, benzine, or naphtha, and every person, firm or corporation storing the same in quantities in excess of ten gallons, etc., to procure a license therefor; New Section 3c provided that every person, etc., engaged in the business described in the preceding section should pay for the license the sum of one dollar, and thereafter, on or before the sixteenth day of January, April, July and October of each year, should pay the license collector the sum of one cent for each gallon of gasoline, benzine, or naphtha so sold, transported or *494 stored by snob person during the preceding three months; New Section 3d required that every person, etc., engaged in the business described in Section 3b, should keep an accurate record of all sales and file a sworn statement, of the same with the City License Collector on the sixteenth day of January, April, July and October of each year; New Section 3f provided that the provisions in this ordinance should not be construed as intended to require the payment of a tax in those cases where, and in so far as, the imposition of the same would be unlawful by reason of any provision of the Constitution and the laws of the United States or of the State of Missouri, mentioning' interstate commerce, and that the provisions of the Sections 3b, 3c and 3e should not “be held to include the sale, transporation or storage of gasoline, benzine or naphtha used on the premises of a manufacturer, cleaner or renovator in manufacturing, cleaning or renovating process for which a license tax is, in this ordinance, elsewhere provided. ’ ’ Appellant claims that Ordinance 38141, and the other ordinances in amendment of the same, should not be enforced for several reasons, among them the following: That those ordinances violate the Fourteenth Amendment of the Federal Constitution, which provides that no state shall deny equal protection of the laws; That the ordinances are in violation of Section 3, Article X, of the Constitution of Missouri, which requires taxes to be uniform upon the same class of subjects within the territorial limits of the authority levying the tax; That they are in violation of Section 4, Article X, of the Constitution of Missouri, which requires that all property subject to taxation shall be taxed in proportion to its value; That they are in violation of Section 6, Article X, of the. Constitution of Missouri, which specifies what property shall be exempt from taxation on the ground that *495 property exempted in the ordinance is not within the purview of that section. That they are in violation of Article X, Section 11, of the Constitution of Missouri, which provides that taxation for city, town and school purposes in cities having thirty thousand inhabitants or inore shall not, in the aggregate, exceed one hundred cents on the hundred dollar, valuation; That they are in violation of Section 8704, Chapter 72, Article X, of the Revised Statutes of Missouri of 1919, which provides that municipal corporations shall confine and restrict their jurisdiction in the passage of ordinances to and in conformity with the state law on the same subject, and the ordinances are in conflict with a certain section of the statutes in relation to the taxation of gasoline. Evidence was introduced which showed that the plaintiff operated a garage at the number mentioned, with a capacity of fewer than twenty cars, and paid $15 a year occupation tax on the garage; that he paid an ad valorem tax of $1.77 on the merchandise which he had on hand; that he paid the license tax of ten dollars for the maintenance of his gasoline curb-pump. The plaintiff testified that he sold from the 10th day of April, 1923, up to the first of July, 1923, more than 15,000 gallons of gasoline; that his profit on the same was two cents a gallon. Other evidence was introduced showing the location and nature of plaintiff’s business, which evidence included photographs showing the situation and location of his garage and gasoline pump. The trial court rendered judgment for the defendant, dismissing the plaintiff’s hill, and he appealed from the judgment. *496 *495 I. The first question for determination is whether the tax of one cent a gallon on the gasoline sold by the dealer is a property tax or an excise or occupation tax. "Where a tax is imposed and is measured "by the amount *496 of business done or the extent to which the privilege is conferred or' exercised by a taxpayer, irrespective 0f the value of his .assets, it is an excise tax. [26 R. C. L. p. 35; American Mfg. Co. v. St. Louis, 270 Mo. 1. c. 41; State ex rel. McClung v. Becker, 288 Mo. 1. c. 614; Simmons Hdw. Co. v. St. Louis, 192 S. W. 397; American Mfg. Co. v. St. Louis, 250 U. S. 459; Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, 1. c. 354; 25 Cyc. 608; State v. Applegarth, 28 L. R. A. (Md.) 812; Southeastern Express Co. v. City, 120 S. E. 475; Glasgow v. Rowse, 43 Mo. 479; St. Louis v. United Rys., 263 Mo. 1. c. 444; Massachusetts Bond. & Ins. Co. v. Chorn, 274 Mo. 15, 1. c. 29-30; Kansas City v. Richardson, 90 Mo. App. 450.] Where a tax is measured by the gross receipts of the business, the amount of premiums received by an insurance company, the number of carriages kept by a livery stable, the number of passengers transported by a street railway company, and other taxes of that nature, it is occupation tax — one form of excise tax. It has been applied to the volume of gasoline sold, such as the tax we have under consideration here. [In re Opinion of the Justices, 121 Atl. (Me.) 902; State v. Hart, 217 Pac. (Wash.) 45; Altitude Oil Co. v. People, 202 Pac. (Colo.) 180.] In case of Bowman v. Continental Oil Co., 256 U. S. 642, it was held by the Federal Supreme Court that such a tax was consistent with the due-process and equal-protection clauses of the Fourteenth Amendment of the Federal Constitution. Appellant cites the case of State ex rel. v. Shipman, 234 S. W. 60, in which the court held that the secured-debt tax was a property tax and not an excise tax. The opinion in that case quotes from 26 R. C. L. p. 34, a definition of excise tax which covers occupation tax and all forms of taxation except property tax. The opinion by Judge Gkaves clearly points out why the secured-debts tax was a tax on property. It has no resemblance to the tax under consideration here. In the present case the tax is in no sense an ad valorem tax. There is no assessment of the property owned *497 by tbe taxpayer; it would not matter how much gasoline he owned at any particular time, or whether he owned any gasoline at all. It is measured by the volume of his business, without any regard to the amount of gasoline on hand. Since he did not store or transport gasoline the tax was measured by the amount of'his sales. Therefore it is not a tax on property and does not come within the requirement of Section 4, Article X, of the Constitution, requiring property to be taxed in proportion to its value. II. It is claimed by the appellant that because the purpose of the tax is to.raise revenue, it therefore is not a license or occupation tax. It is pointed out by Cooley in his Constitutional Limitations (7 Ed.) p. 283, that a license for regulation is issued under the police power, but the exaction of the license fee with a view to revenue would be an exercise of the taxing power. The police power cannot be exercised for the purpose of exacting revenue. If the purpose of a license is regulation only, it is beyond the authority of the Legislature or a city government to impose it for the purpose of revenue. However, a license may be imposed strictly as a revenue measure in the exercise of the taxing power. [25 Cyc. 609; 12 C. J. 906; Kansas City v. Grush, 151 Mo. 134; City of St. Charles v. Elsner, 155 Mo. 680; State ex rel. McClung v. Becker, 288 Mo. 1. c. 614.] An occupation tax may at the same time be both a police regulation and a revenue measure. [Id.] In support of his position plaintiff cites State v. Bengsch, 170 Mo. 1. c. 114. The opinion in that case, which apparently supports the position of the appellant, was written by Judge Sherwood, but a majority of the court concurred only in the result; it is not, therefore, an expression of the court upon the proposition. *498 *497 III. The city must have express authority in the charter to levy such a license tax. Appellant calls at *498 tention to Section 8702, Revised Statutes 1919, which provides that no municipal corporation shall have the Power t° impose a license tax upon any business, avocation, etc., unless such business, avocation, etc., is specifically named as taxable in the charter of such municipality. Section 1, Article 3, Clause 4, of the Charter, enumerates “merchants” among others who may be taxed and regulated. The dictionary definition of “merchant” is: “One making a business of buying and selling commodities; a trafficker; a trader.” Secondary meaning: “One who carries on a retail business.” The requirements of Section 8702 is sufficiently met by the term “merchant.” Evidently it was the understanding of the framers of the charter that “merchant” should cover all dealers that might be included in the term, because the specific dealers mentioned in that section do not include retail merchants of many kinds. Appellant is hardly in position in this case to say the term “merchant” does not cover the ease, because he points out that the appellant was otherwise taxed, without objection from him, as a merchant. He paid an acl valorem merchant’s general tax on his property, "as shown by evidence introduced by the plaintiff. [See also St. Louis v. Baskowitz, 273 Mo. 1. c. 565.] Thus it appears that the city authorities, as well as the plaintiff, interpreted the charter to include callings like that pursued by the appellant, as that of a merchant. IY. The present tax being a revenue measure it must conform to Section 3, Article X, of the Constitution, providing that the tax must be uniform game ciagg 0f subjects within the territorial limits of the authority levying the tax. There is nothing in the record to show that this tax offends against the requirement of uniformity, or that it is in conflict with the equal protection clause of the 14th Amendment to the Federal Constitution. [25 Cyc. 608; St. Louis v. McCann, 157 Mo. 301; S. W. Oil Co. v. *499 State of Texas, 217 U. S. 114; cases cited above under paragraph I.] V. Appellant asserts that the ordinance imposing the tax contains an exemption which makes it discriminatory. Section 3f of the ordinance provides that the provisions for the tax shall not “be held to . , ,. . ... , include the sale, transportation or storage of gasoline, benzine or naphtha used upon the premises of the manufacturer, cleaner or renovator, or in the manufacturing, cleaning or renovating process for which a license tax is in this ordinance otherwise provided. ’ ’ This is a mere question of classification under Section 3, Article N, of the Constitution. [St. Louis v. Baskowitz, 273 Mo. 543.] There seems to be no reason why the seller of gasoline should necessarily be classed with a person who uses it in the processes mentioned in Section 3f. The appellant has pointed out none. YT. Appellant cites Section 6073, Revised Statutes 1919, as amended by Laws 1921, page 404, Section 3, which provides for fees for the inspection of gasoline, etc., and that only in such amounts as are reason- -. , , ,, „ ably necessary to cover the expense of such inspection shall be collected. That, of course, is a pure police regulation, and not a revenue measure. It relates solely to inspection and limits the fees for inspection. Section 8704 is as follows: “Any municipal corporation in this State, whether under general or special charter, and having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the State, unless otherwise prescribed or authorized by some special provision of its charter, shall confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the state law upon the same subject.” *500 The ordinance under consideration, as the appellant contends all through, is a revenue measure. It has nothing to do with the inspection of gasoline, and is not in conflict with Section 6073. VII. It is claimed by appellant that he is compelled by this ordinance to pay a double occupation tax, because Ordinance 38141, as amended by Ordinance 39337, imPoses a tax upon every retail merchant of fifty cents for each one thousand dollars or fraction thereof of gross receipts of the business operated by such merchant. This tax, however, is imposed upon every retail merchant “except as otherwise provided in this ordinance.” The ordinance was amended by Ordinance 44965, as pointed out above, by the addition of sections levying the tax objected to here. Thus it seems this ordinance “otherwise provided” for the taxing of appellant. The respondent so construes the amendment and appellant has not attempted to meet that construction; the tax of fifty cents on the thousand dollars of gross receipts cannot be imposed upon the appellant. The judgment of the circuit court is affirmed. Bag-land, James T. Blair, David E. Blair, JJ., and Graves, G. J., concur; Walker, J., dissents in opinion to be filed.