Summary
In Shively v. City of Keytesville, 241 Mo.App. 239, 238 S.W.2d 682[3-5] (1951) the court held that municipalities may levy taxes only in the manner granted by the statute and such a grant "must be evident and unmistakable, and all doubts will be resolved against its exercise, and in favor of the taxpayer."
Summary of this case from Schoonover v. LampeOpinion
Opinion delivered April 2, 1951.
1. — Municipal Corporations — Licenses. Quarterly annual license tax levied by city upon those who store gasoline or other motor fuel in quantities in excess of 10 gallons within city limits, proceeds of which were to be used for purpose of building a city hall and for maintaining and repairing public streets, was void as being for an unauthorized purpose. R.S. 1949, section 94.270.
2. — Licenses — Taxation. Quarterly annual license tax equal to one cent for every gallon of gasoline or other motor fuel transported, distributed, sold or stored within city, levied upon certain persons, firms or corporations, was not a license tax but a general revenue tax.
3. — Municipal Corporations — Taxation. Municipalities in Missouri may only levy taxes in the manner and for the purpose granted by the state. R.S. 1949, section 94.270.
4. — Municipal Corporations — Taxation. A power to tax for general purposes does not include a power to tax for special or unusual purposes. R.S. 1949, section 94.270.
5. — Municipal Corporations — Taxation. The taxing power belongs to sovereignty; no such power inheres in municipal corporations, and the grant of power relied upon must be evident and unmistakable, and all doubts will be resolved against its exercise by municipality levying the tax and in favor of the taxpayer.
6. — Municipal Corporations. Enactment of ordinance by fourth class city providing that certain persons, firms and corporations should not engage in business of transporting or selling gasoline in city without a license, and that they should not store gasoline in excess of 10 gallons without a license, and requiring payment of quarter annual license tax, and that all funds derived from collection of tax should constitute a special fund and be used solely for purpose of building a city hall and maintaining and repairing public streets of city, sought to circumvent statute which provided that two-thirds of voters of such city must give their assent to issuing bonds for erection of city hall, and was invalid since it placed upon those engaged in one occupation the entire burden of building a city hall.
7. — Costs. In action to secure a declaratory judgment by taxpayers as to validity of city ordinance relating to tax, trial court properly taxed one-half of costs against the taxpayers and one-half against city and costs on appeal by taxpayers would be taxed on same basis.
Appeal from Circuit Court of Chariton County. — Hon. G. Derk Green, Judge.
JUDGMENT, EXCEPT AS TO COSTS, REVERSED.
H.K. West and Wayne Wheeling for appellants.
Ordinance exceeds Charter Power and exceeds limitation fixed by Law. Secs. 7196 and 7440, R.S. Mo., 1939; State on Inf. Bloebaum v. Boeker, 11 S.W.2d 81; City of Lebanon v. Joslyn, 58 S.W.2d 289; City of Ozark v. Hammond, 49 S.W.2d 129; Keane v. Strodtman, 18 S.W.2d 896; Ward Baking Co. v. City of Ste. Genevieve, 119 S.W.2d 292; City of Independence v. Cleveland, 167 Mo. 384, 67 S.W. 218; Siemens v. Schreeve, 296 S.W. 415; Moots v. Trenton, 214 S.W.2d 31; City of Fulton v. Craighead, 147 S.W. 1128, 164 Mo. App. 90. This tax is void as being for a special and not a general purpose. 44 C.J., p. 1263, Sec. 4272, and cases cited; 44 C.J., p. 1282, Sec. 4306. City does not have power to tax "gasoline" under its Charter. Art. 9, Ch. 38, R.S. Mo., 1939. The ordinance is ambiguous and void. The Decree adds further uncertainty as to the meaning of the Ordinance. Diemer v. Wiess, 122 S.W.2d 922; City of Washington v. Washington Oil Co., 145 S.W.2d 366. The void provisions of the ordinance are inseparable from those which the Trial Court did not invalidate. Because of this the whole ordinance is void. St. Louis v. Transfer Co., 256 Mo. 476. Ordinance is void because of unreasonableness. Corrigan v. Gage et al., 68 Mo. 541; City of Washington v. Reed, 70 S.W.2d 121; Fetter v. City of Richmond, 142 S.W.2d 6. Ordinance levies a Sales Tax which is not authorized under the Charter of a city of the fourth class. State ex rel. Peoples Motor Bus Company v. Blain, Judge, 58 S.W.2d 975; Sec. 7197, R.S. Mo., 1939. Tax Ordinances must be strictly construed against the City. Kansas City v. Frogge, 176 S.W.2d 498, l.c. 501. The penalty provided in the ordinance is unlawful and excessive. R.S. Mo., 1949, Sec. 7221. The City can not invade private property to enforce ordinance. State ex rel. George v. Dicks, 159 Mo. App. 573.
This is an action the purpose of which was to secure a judgment declaratory of the validity or invalidity of an ordinance approved by the Mayor and Board of Aldermen of the City of Keytesville. The ordinance relates to a tax on gasoline and other motor fuels in said city. Some of the plaintiffs are retailers of gasoline and motor fuels in the City of Keytesville, others are distributors and transporters of said products.
Section 1 of the ordinance involved provides that:
"No person, firm or corporation shall engage in, carry on or conduct the business of transporting, distributing, or selling gasoline or other motor fuel in the City of Keytesville, Missouri, without first having a license therefor from the City Collector."
Section 2 provides:
"No person, firm or corporation shall store gasoline or other motor fuel in the City of Keytesville, Missouri, in quantities in excess of ten gallons, without first having obtained a license therefor from the City Collector."
Section 3 provides for payment of a quarterly annual license tax "the amount of said quarterly license tax to be determined at a sum equal to one cent for every gallon of gasoline or other motor fuel transported, distributed, sold or stored by such person, firm or corporation during the preceding period of three months and ending as aforesaid."
Section 6 provides: "All funds derived from the collection of the license tax herein provided for shall constitute a special fund and shall be used, applied and expended solely and only for the purpose of building a city hall and maintaining, repairing and resurfacing the public streets of Keytesville, Missouri." (Italics ours.)
Other sections pertain to the keeping of records, making quarterly reports, city collector's duties, and penalties for violations of the ordinance.
The trial court found that "the ordinance cannot be lawfully enforced against distributors, wholesalers and transporters of gasoline or other motor fuels who transport gasoline or other motor fuels from a point within said city to a point outside of said city, and the Court doth further find that said Ordinance cannot be lawfully enforced against storers of gasoline or other motor fuels in the City of Keytesville, Chariton County, Missouri, except such storers of gasoline or other motor fuels who store the same for the purpose of resale, at retail.
"The Court further finds that said Ordinance No. 86 is a valid and enforceable ordinance against retailers of gasoline or other motor fuels in the City of Keytesville, Missouri, and that a tax of one cent (1¢) per gallon may be collected from them by the City of Keytesville."
Those plaintiffs who were retailers sought a new trial. It being denied them they appealed to the Supreme Court. That court, being satisfied that it was without jurisdiction, transferred the case to this court. Respondents filed no brief in the Supreme Court nor have they filed one here.
Among the many contentions made in appellants' brief is one that the tax is void as being for an unauthorized purpose. We think the point is well taken. It is to be noted that in Section 6, supra, the stated purpose is dual and in the conjunctive.
The sole authority for the enactment of the ordinance involved is Section 7196 Mo. R.S.A. 1939, which recites that "The Mayor and board of aldermen shall have power and authority to regulate and to license and to levy and collect a license tax" on certain businesses and occupations.
The tax here involved is not, in fact, a license tax but a general revenue tax. (Carter Carburetor Corp. v. City of St. Louis, 203 S.W. (2nd) l.c. 443; McQuillin Municipal Corporations, 3rd Ed. Vol. 9, Sec. 26.15.)
The rule is well settled that "municipalities in Missouri may only levy taxes in the manner and for the purpose granted by the state." (First Nat'l. Bank of St. Joseph v. Buchanan County, 205 S.W. (2nd) l.c. 729.) "A power to tax for general purposes does not include a power to tax for special or unusual purposes." (Vol. 64 C.J.S. Sec. 1992. As said by our Supreme Court in the case of Kansas City v. Frogge, 176 S.W. (2nd) l.c. 501: "The taxing power belongs to sovereignty. No such power inheres in municipal corporations. This principle is universally recognized. * * * The grant relied upon must be evident and unmistakable and all doubts will be resolved against its exercise, and in favor of the taxpayer."
The City of Keytesville is a city of the fourth class. Its charter is to be found in the statutes governing cities of that class. Article 9 of our statutes pertaining to municipal corporations deals with cities of the fourth class. Section 7180 thereof points the way in which a city of this class can erect a city hall — by issuing bonds provided two-thirds of the voters of such city give their assent. The ordinance here involved seeks to circumvent that section and place upon those engaged in one occupation the entire burden of building a city hall. It is clearly invalid.
The court taxed the costs one-half against appellants and one-half against the City of Keytesville. This was equitable and just and authorized by Section 1135 Mo. R.S.A. 1939. The costs of this appeal should be, and are, taxed on the same basis.
The judgment, except as to costs, is reversed. All concur.