Mobil-Teria Catering Co. v. Spradling

DONNELLY, Judge. This action involves the question whether appellant, Mobil-Teria Catering Company, was properly assessed .5% of its gross receipts under either the Public Mass Transportation Tax, § 92.400 et seq., RSMo Supp. 1971, as amended, or the Transportation Sales Tax, § 94.600 et seq., RSMo Supp. 1973. The case originated as a Petition for Reassessment before the Department of Revenue. Upon adverse decision by the Director of Revenue, appellant obtained review by the Circuit Court in the Sixteenth Judicial Circuit, and since the action involves construction of the revenue laws of the state, the Supreme Court has exclusive appellate jurisdiction under Mo. Const. Art. V,§3. Mobil-Teria provides cigarettes, sandwiches, coffee and other food items to persons at construction, industrial and other employment sites in the Kansas City region. A company commissary, kitchen, offices and garage are located at a central facility in Kansas City, Missouri. No sales are made directly to the public at the central facility. Rather, approximately sixty-five trucks are dispatched daily with the items for sale to pre-established stops along regular routes. At the beginning of each day, Mobil-Teria’s drivers check out the food and sundries — 283 — from the central facility. At the end of the day the drivers return to the central facility and turn in their money and left-over items. Some of the truck routes are wholly within Kansas City. Others are wholly outside the city in Kansas or in the four Missouri counties surrounding Kansas City. Still others are partially within Kansas City and partially in the surrounding areas. Although the total daily sales for each route are recorded by the company, the amount of sales made at any particular stop or segment of a route apparently cannot be determined. Only the tax liability for the routes which are wholly in Missouri counties surrounding Kansas City is at issue in this action. The Public Mass Transportation Tax, § 92.400 et seq., and Transportation Sales Tax, § 94.600 et seq., are closely similar statutes which authorize specified Missouri cities to enact a sales tax of .5% of gross receipts to finance transportation expenditures. Section 92.400 was enacted in 1971. Section 94.600 was enacted in 1973. Among other differences the later statute permits the revenue collected to be expended for a wider variety of purposes. However, under both statutes, once a municipality has enacted a transportation tax ordinance, the revenues are collected by the Missouri Director of Revenue in the same method provided in §§ 144.010 to 144.510, RSMo 1969, for the collection of the state sales tax. The revenues are then disbursed to the taxing municipality at specified intervals. Both statutes also provide, in identical terms, that, “ . . all retail sales shall be deemed to be consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. In the event a retailer has more than one place of business in this state which participates in the sale, the sale shall be deemed to be consummated at the place of business of the retailer where the initial order for the tangible personal property is taken, even though the order must be forwarded elsewhere for acceptance, approval of credit, shipment or billing. A sale by a retailer’s agent or employee shall be deemed to be consummated at the place of business from which he works.” § 92.408(5), RSMo Supp. 1971, and § 94.620(5), RSMo Supp. 1973. Pursuant to § 92.400 et seq., Kansas City enacted Ordinance No. 42073 which was to become effective on January 1, 1973. It was to cease to be effective on September 30, 1973, unless further extended by ordinance. In August, 1973, effective October 1,1973, Kansas City enacted Ordinance No. 43171 imposing a tax under 94.600 et seq. and expressly repealing the prior ordinance enacted pursuant to § 92.400 et seq. Thus, while retailers in Kansas City were continuously taxed at the same rate and for generally similar purposes, the taxes were imposed under the authority of two separate sets of statutes and ordinances, with the earlier ordinance being expressly repealed by the enactment of the later ordinance. On April 24, 1975, the Department of Revenue assessed appellant under the Public Mass Transportation Tax statutes, § 92.-400, in the amount of $5,987.87 for failure to make total payments due under the Kansas City ordinance for the periods April through November, 1973, and January through July, 1974. This assessment, as subsequently affirmed by the respondent and by the Circuit Court of Jackson County, is challenged on the ground that the respondent does not have the authority to assess the appellant on sales by Mobil-Teria drivers that occur in areas outside the city limits of Kansas City, Missouri. We agree. As a general rule, “a municipal corporation’s powers cease at its municipal boundaries, and cannot, without a plain delegation of the necessary power from a proper authority, be exercised outside its geographical limits.” City of St. Louis v. Lee, 132 S.W.2d 1055, 1057 (Mo. App. 1939). “So far as governmental functions are concerned, it is elementary that a municipal corporation has no extraterritorial powers.” City of Sedalia v. Shell Petroleum Corporation, 81 F.2d 193, 196 (8th Cir. — 284 — 1936). A municipal corporation has “no authority to exercise any control over territory beyond its borders.” Douglas v. City of Kansas City, 147 Mo. 428, 435, 48 S.W. 851, 853 (1898). The Supreme Court of California has held that certain provisions of the California Constitution “combine[d] with the equal protection clause of the federal Constitution to proscribe local taxes which operate to unfairly discriminate against intercity businesses by subjecting such businesses to a measure of taxation which is not fairly apportioned to the quantum of business actually done in the taxing jurisdiction.” City of Los Angeles v. Shell Oil Company, 4 Cal.3d 108, 93 Cal.Rptr. 1, 11, 480 P.2d 953, 963 (1971). In short, there is considerable authority to support the proposition that a municipal corporation may never tax that portion of a taxpayer’s receipts which are directly derived from sales made outside its geographical limits. We need not, and do not, adopt this proposition at this time. It is enough to say that the validity of the Public Mass Transportation Tax and Transportation Sales Tax statutes, if interpreted to permit the taxing of receipts directly derived from sales made outside the geographical limits of a city, would at least be a matter of grave doubt, and that a construction of such statutes should be adopted which would give validity to the statutes rather than one which would render them void or at least of doubtful validity. The question then narrows to whether “place of business” as used in § 92.408(5) and § 94.620(5), refers, in this case, to a location inside or outside the limits of Kansas City. We hold that “place of business” refers to the place where the trucks are parked, the wares are displayed, the initial orders are taken and filled, payments therefor are made, and the sales are thereby consummated. In this case, a tax may not be imposed under the statutes on those gross receipts at issue here. Respondent relies on the case of Fabick and Company v. Schaffner, 492 S.W.2d 737 (Mo. 1973). We decline to overrule Fabick at this time. It is enough to say that in Fabick the sales were not, as in this case, initiated and consummated outside the limits of Jefferson City. The judgment is reversed and the cause remanded. MORGAN, C. J., RENDLEN, J., and SI-MEONE, Special Judge, concur. SEILER, J., concurs in part and dissents in part in separate opinion filed. BARDGETT and FINCH, JJ., concur in part and dissent in part and concur with separate opinion of SEILER, J.