Summary
In Springfield City Water Co. v. City of Springfield, 353 Mo. 445, 182 S.W.2d 613, 617 (1944), we said: "We think it clear under Sec. 3, Art. X of the State Constitution that a City has the power to sub-classify by ordinance the subjects of taxation enumerated in a general taxing statute if there is a reasonable basis for doing it and nothing in the statute forbids."
Summary of this case from Kansas City v. John Deere Co.Opinion
No. 39038.
October 9, 1944.
1. TAXATION: Municipal Corporations: Public Utilities: Cities of the Second Class: Power to Levy License Tax Upon Utilities: Subclassification Permitted. Subsection XVII of Sec. 6609 R.S. 1939, permitting cities of the second class to license and tax twelve different named types of utility companies, should be construed as authorizing a subclassification so that a tax may be levied on utility companies of one type without a similar tax being levied on utility companies of the other types.
2. STATUTES: Taxation: Municipal Corporations: Public Utilities: Cities of the Second Class: License Tax Upon Utilities: Expressio Unius Maxim Not Applicable. The maxim expressio unius est exclusio alterius is merely an aid to construction and should not be used to defeat the apparent intent of the legislature. The legislative history of Subsection XVII of Sec. 6609 R.S. 1939 shows that the intent of the legislature was to permit subclassification of different types of utility companies in cities of the second class for the purpose of a license tax.
3. TAXATION: Municipal Corporations: Public Utilities: Cities of the Second Class: License Tax Upon Utilities: No Conflict With Sales Tax. There is no conflict between the state sales tax law and Sec. 6609 R.S. 1939, permitting cities of the second class to levy a license tax upon utility companies.
Appeal from Greene Circuit Court.
AFFIRMED.
Neale, Newman Wampler and W.D. Tatlow for appellant.
(1) The sole charter power of the city to levy a tax based on the gross receipts is Sec. 6609, Par. XVII, R.S. 1939. (2) By making the classification in Paragraph XVII without any provision for a division or separation, and in the same section and in the next paragraph in the concluding part thereof expressly providing in detail for such separation and division, "abundantly shows that the mind of the lawgiver was directed to the subject," and when the power to subdivide was intended to be exercised it is expressly so provided and when it was withheld it is not so expressed. This has been directly decided in exactly parallel cases dealing with the identical subject — an occupation tax — under exactly similar statutes. St. Louis v. Boatmen's Ins. Trust Co., 47 Mo. 150; Kroger Grocery Baking Co. v. St. Louis, 106 S.W.2d 435; Kansas City v. J.I. Case Threshing Mach. Co., 337 Mo. 913, 87 S.W.2d 195. (3) Those cases apply the rule that the expression of one thing is the exclusion of another. This is an ancient canon for the construction of statutes, and has been applied by the Missouri court in numerous cases, a few of which are as follows: Ex parte Arnold, 128 Mo. 256; State ex rel. v. Taylor, 220 Mo. 618, 119 S.W. 373; In re Oppenstein, 289 Mo. 412, 233 S.W. 440; Brueninger v. Hill, 277 Mo. 239, 210 S.W. 67; State ex rel. v. McElhinney, 315 Mo. 731, 286 S.W. 951; State ex rel. v. Seibert, 123 Mo. 424, 27 S.W. 624; Kansas City v. Mercantile Mut. B. L. Assn., 145 Mo. 50, 46 S.W. 624; Taylor v. Pullen, 152 Mo. 434, 53 S.W. 1086; Schlaflay v. Baumann, 341 Mo. 755, 10 S.W.2d 363; State ex rel. K.C. Power Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; State ex rel. Donnell v. Osborne, 347 Mo. 469, 147 S.W.2d 1065; State ex inf. v. Sweaney, 270 Mo. 685, 195 S.W. 714. (4) It is a cardinal rule of construction that every word, clause, sentence and section of an act must be given some meaning, unless it is in conflict with the legislative intent. State v. Wipke, 345 Mo. 283, 133 S.W.2d 354. Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W.2d 620; State ex rel. K.C. Power Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; Johnson v. Kruckemeyer, 224 Mo. App. 351, 29 S.W.2d 730. (5) And where the language of the statute is plain and unambiguous it must not be construed. It must be given effect as written. St. Louis Amusement Co. v. St. Louis County, 347 Mo. 456, 47 S.W.2d 667; State ex rel. v. Lucas, 348 Mo. 1153, 153 S.W.2d 10; St. Louis Rose Co. v. Unemployment Compensation Comm., 348 Mo. 1153, 159 S.W.2d 249; State ex rel. v. Phillips Petroleum Co., 349 Mo. 360, 160 S.W.2d 764; State ex rel. v. Hughes, 173 S.W.2d 877; State v. Hallenberg, 341 Mo. 771, 108 S.W.2d 398. (6) The express power to classify and subdivide the two hundred or more businesses named in Paragraph XVIII of said Section 6609 by necessary implication prohibits the reclassification of the comparatively few utility companies named in Paragraph XVII of said section. (7) The express power to classify and subdivide the two hundred or more businesses named in Paragraph XVIII necessarily refers to the power to tax as well as the power to regulate. The difference in the various businesses so named, apparent on the face of said paragraph, implies the power to classify without an express provision, as is expressly and directly held in a case much leaned on by respondents. St. Charles v. Schulte, 305 Mo. 124, 264 S.W. 654. (8) The express power to classify, given in said Paragraph XVIII, cannot be read out of the statute or its legal effect minimized by construing Paragraph XIX, which contains no such express provision. Paragraph XIX of said section is a catch all provision, naming certain activities that hardly rises to the dignity of a business, and contains a much broader power, to wit, the power to suppress, and a prohibition against either regulating or taxing certain activities. Whatever may be the proper construction of Paragraph XIX, it sheds no light on the proper construction of Paragraph XVII. This has been directly decided by the Court en Banc in an exactly parallel case. State ex rel. inf. v. Sweaney, 270 Mo. 685, 195 S.W. 714. (9) The collection of an occupation tax, based upon the gross receipts of the respective companies as accurately measures the value of the right or privilege to conduct the respective businesses as does the valuation of their respective tangible properties. The constitutional provision, Sec. 3 of Art. X, applies with equal force to both the physical property and an occupation tax. This is expressly so decided in the case much relied upon by the respondents in the trial court. St. Charles v. Schulte, 305 Mo. 124, 264 S.W. 654; Kansas City v. J.I. Case Threshing Mach. Co., 337 Mo. 913. (10) It is also directly held in those cases that Paragraph XVII supra, is solely a revenue measure, as well as in Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281. (11) The Supreme Court of the United States in a very recent case has dealt with a very similar question. Davis Warehouse Co. v. Bowles, 64 S.Ct. 474, 88 L.Ed. 379. (12) Paragraph XVII of the charter clearly classifies public utilities for the purpose of taxation, by whatever standard they may be judged. (13) This court has directly held in a similar situation, that Paragraph XVII of the charter classifies these utilities for the purpose of levying an occupation tax. State ex rel. v. Cairo Bridge Terminal Co., 340 Mo. 190, 100 S.W.2d 441. (14) The classification made by Paragraph XVII of the charter in the instant case is the one which is mandatorily required by the constitutional provision. Sec. 3 of Article X. Village of Beverly Hills v. Schulter, 130 S.W.2d 532. (15) The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not therefore what a law includes that makes it special, but what it excludes. Laclede Power Light Co. v. St. Louis, 182 S.W.2d 70. (16) It is important to keep clearly in mind that this is solely a revenue measure. St. Charles v. Schulte, 305 Mo. 124, 264 S.W. 654; Kansas City v. J.I. Case Threshing Machine Co., 337 Mo. 913; Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281; Edmonds v. St. Louis, 156 S.W.2d 619. (17) The question of the propriety of a classification, measured by Section 3, Article X, is largely one for the Legislature. The courts may not declare a particular classification unreasonable and violative of said Section 3, Article X, unless the classification made cannot be justified on any reasonable grounds. Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22. (18) The Legislature may not classify by characteristics or qualities which might distinguish individuals unless that distinction applies to the particular matter under consideration. Ballentine v. Nester, 350 Mo. 58, 164 S.W.2d 378. (19) The occupation tax is limited to two per cent of the gross receipts. Sec. 7442, R.S. 1939; International Harvester Co. v. Dept. of Treas., 64 S.Ct. 1019. (20) The sale of property made and completed in Missouri is subject to the tax, even though as a part of the same transaction it is to be transported in interstate commerce to another state. American Bridge Co. v. Smith, 179 S.W.2d 12.
Alfred Page, Theodore Beezley, W.L. Vandeventer and J. Weston Miller for respondents.
(1) Under Section 3, Article X, Missouri Constitution, it has always and uniformly been held that it is constitutional, legal, and proper to classify for the purposes of taxation. State ex rel. Daily Record v. Hartmann, 253 S.W. 991; Village of Beverly Hills v. Schulter, 130 S.W.2d 532. (2) A municipal corporation has power to divide a taxable class, that is, a class taxable under its charter, into subclasses and tax these subclasses differently. Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281; St. Charles ex rel. Palmer v. Schulte, 305 Mo. 124, 264 S.W. 654; Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22, 62 A.L.R. 95. (3) Under Subsection XVII of Sec. 6609, R.S. 1939 specific right to "license and tax" water companies, as well as other specifically named companies. In the exercise of this power, the city had the right to classify the various businesses named for the purpose of license taxes. Union Electric Co. v. St. Charles, 181 S.W.2d 526; Ex parte Asotsky, 5 S.W.2d 22; Ballentine v. Nester, 164 S.W.2d 378; Thompson v. St. Louis-S.F. Ry. Co., 69 S.W.2d 936. (4) The provision of subsection, or Paragraph XVIII, of Section 6609, Revised Statutes of Missouri, 1939, providing that as to the many kinds and character of businesses and occupations therein listed that the city, in exercising its powers given under such paragraph, might: "Divide the various occupations, professions, trades, pursuits, corporations, and other institutions and establishments, articles and commodities into different classes," is not by implication or otherwise any limitation upon the powers and rights of the respondent city under subsection XVII. Edmonds v. St. Louis, 156 S.W.2d 619; Joplin Supply Co. v. Smith, 167 S.W. 649; State ex rel. v. Public Serv. Comm., 34 S.W.2d 486; State ex rel. Kelsey v. Smith, 75 S.W.2d 832. (5) Even where a Charter does not give express authority to classify one kind of merchant from another kind of merchant, it is now held that the power to so classify exists. In other words, held that when the charter power is simply to tax "merchants", the city can classify as between merchants. So too, in our case, the power being to "license and tax" utilities, the city may classify as between the different kinds of utilities. Gasoline Co. v. St. Louis, 32 S.W.2d 281; Village of Beverly Hills v. Schulter, 130 S.W.2d 532; Ex Parte Asotsky, 5 S.W.2d 22; Edmonds v. St. Louis, 156 S.W.2d 619; City of St. Charles v. Schulte, 264 S.W. 654. (6) The ordinance is not in violation or contravention of the Missouri Sales Tax Act or any of the sections thereof. Ploch v. St. Louis, 138. S.W.2d 1020; Union Electric Co. v. St. Charles, 181 S.W.2d 526. (7) Classification as between public utilities is not prohibited by the Constitution of Missouri, statutes of the State of Missouri, or by the Charter of the City of Springfield. It has long been the law that a distinction in tax legislation is not arbitrary if any state of facts reasonably can be conceived that would sustain it. New York Rapid Transit Co. v. City of New York, 303 U.S. 573, 58 S.Ct. 721. (8) The history of the enactment of this act discloses no intention of the Legislature to limit the right of the city to classify between the businesses named in Section XVII by implication or otherwise. This history and other legislation enacted at the same time discloses instead that the only possible intent and purpose of the Legislature in enacting Paragraph XVII and setting apart the businesses named therein from the businesses named in Paragraph XVIII was to provide for the city to have the power to license and tax the businesses specifically named in Paragraph XVII, which necessarily included the right to classify for that purpose but not to have the power to regulate such businesses.
The appellant Springfield City Water Company by its petition in equity sought in the lower court permanently to enjoin the enforcement of General Ordinance No. 301 of the respondent City of Springfield, adopted September 30, 1943, and levying an occupation tax of 5% on its gross receipts. The petition charges the ordinance is discriminatory, arbitrary and void under Sec. 3, Art. X of the State Constitution, which requires taxes to be uniform upon the same class of subjects within the taxing area. There is a further contention that the ordinance violates Sec. 7442. Under that statute the ordinances of all cities must conform to the state law upon the same subject. The theory of the contention is that the 5% occupation tax levied by the ordinance falls in the same category as the State sales tax; and that Sec. 11408 limits the latter to 2%. The circuit court sustained a demurrer to the petition on the ground that it fails to state a cause of action. Appellant refused to plead further, whereupon the trial court dismissed the suit. The sufficiency of the petition is the sole issue on this appeal.
All sections of our statutes cited herein appear in R.S. Mo., 1939, and same section numbers in Mo. R.S.A., unless otherwise shown. Italics in quotations are ours.
Considering first the charge of discrimination. The ordinance levies the tax on the business of every person (including corporations) engaged in supplying water for compensation through pipes laid in the streets, alleys, parkways or other publicly owned premises of the City. The appellant's annual gross receipts are $500,000 making its tax $25,000 per year. The gross receipts by which the tax is gauged seemingly are those from all sales of water conveyed through any of its pipe lines in the city, whether delivered and consumed within or without the city. There are other utilities in Springfield upon which occupation taxes are levied in different amounts by different ordinances. The tax against the Western Union Telegraph Company is $100 per year; and that against the Railway Express Company only $50 per year. The Springfield Gas and Electric Company through a subsidiary operates bus lines on which the annual tax is $50 per bus. All these taxes are much less than appellant's. The tax against the last named Company for gas and electric service is 5%, the same as appellant's, but those ordinances have been interpreted by resolution of the City Council to cover only gross receipts from business within the city. Some utilities, such as refrigerating companies, pay no tax at all.
All these taxing ordinances are based on subsection XVII of Sec. 6609, in the statutory charter of cities of the second class, to which the City of Springfield belongs. It authorizes such cities "to license and tax telegraph companies, telephone companies, electric companies, street railway companies, gas companies, subway companies, conduit companies, heating companies, lighting companies, express companies, refrigerating companies, water companies and utilities of whatsoever name or character, like or unlike." Twelve utility businesses are specifically named. There is no express [615] authorization in the subsection for a sub-classification of these utilities for the purposes of taxation.
The next subsection in the statute, subsection XVIII, groups over 200 businesses and callings of various natures, and provides they may be licensed, taxed and regulated. Utilities, as such, are omitted from that subsection but it does include the "poles and wires, or conduits and wires, of telegraph, telephone, electric light, street railway and electric and power companies" (five kinds of utilities). And near the end there is a provision authorizing the city "to divide the various occupations, professions, trades, pursuits, corporations . . . into different classes." Subsection XIX provides certain other designated businesses, which are more questionable, may be "licensed, regulated, taxed or suppressed." There is no clause in that subsection either, permitting sub-classification — though appellant concedes it may be done.
The statutory charter of second class cities, in which Sec. 6609 and the foregoing three subdivisions thereof appear, was enacted by Laws Mo., 1913, pp. 420, 428-430. Subsection XVII then was the same as now, except that "water companies" were not included. Those words were inserted by Laws Mo., 1933, pp. 296, 298, but apparently unintentionally omitted by Laws 1933, pp. 310, 312, and then reinserted by Laws Mo., 1939, pp. 523, 525. At any rate, the Act was originally adopted in 1913 during the same 47th Session of the General Assembly at which the public service commission law was first enacted. Laws Mo., 1913, pp. 556, 561. That Act confided to the Public Service Commission the exclusive power to reglate the same twelve utilities enumerated in subsection XVII (see now Sec's 5578, 5592) with respect to capitalization, operation, rates, public necessity and the like.
So much for the contents of the statutes. Appellant contends that subsection XVII of Sec. 6609, supra, groups the twelve utilities there named in a single class for the purpose of licensing and taxation regardless of their nature — this last especially in view of the catchall phrase at the end of the subsection ("and utilities of whatsoever name or character, like or unlike.") Thence it is argued that under Sec. 3, Art. X of the Constitution any tax levied must be uniform against every member of the class, or else no tax can be imposed. It is further asserted that the inclusion of these same twelve utilities in the public service commission law at the same legislative session for the purpose of regulation, confirms the above view by showing a fixed intention to treat them as a class. And finally appellant maintains his argument is clinched by the facts that subsection XVII contains no clause authorizing sub-classification of the twelve utilities for the purposes of licensing and taxation; whereas subsection XVIII expressly authorizes it for the purpose of licensing, taxing and regulating the 200 odd businesses there enumerated, which last is not a taxing power but a police power.
In other words, appellant thinks the maxim expressio unius est exclusio alterius resolves all doubts about the case — if there is any doubt. In explaining its concession that the maxim does not apply to subsection XIX which, also, lacks a sub-classification clause, appellant says the businesses, acts and things there named are so questionable as to be subject to suppression — a drastic power that obviously may call for separate treatment of the things suppressed according to their nature, whether expressly authorized or not.
Respondents maintain to the contrary that subsection XVII, standing alone, allows second class cities to subdivide the twelve utilities there named into classes and to levy a different tax on each, or none at all, in view of the fact that the subsection does not forbid it, and of the difference in the respective natures of the utilities. They further maintain that when the three subsections are construed together, and their history is reviewed in connection with the public service commission law, the same conclusion must be reached, forbidding the application of the maxim expressio unius, etc. We take up these points in order, confining ourselves to mere construction and historical review of the statutes for the present, and reserving our discussion of the precedents until later.
With respect to the difference in the natures of the twelve utilities named in subsection XVII respondents point out the following. A water company supplies a commodity necessary to human existence and fire prevention, digs up the streets extensively, and occupies them with its pipe lines and hydrants. So also of gas, subway, conduit, heating, electric and telephone companies — though in diminishing [616] degrees as to the extent or character of physical encroachment on the streets, and with some difference in the vital need of their services throughout periods of depression and prosperity alike. On the other hand, a telegraph company would occupy the streets only to a limited extent; and an express or bus company would make only traffic use thereof the same as other vehicles. A refrigerating company might be conducted wholly on the premises of the owner. There are some businesses, not specified in the subsection, of which the same would be true. Trucking companies would merely travel the streets; and warehouse and elevator companies would not use them at all. (We are not holding one way or the other on whether these unnamed companies come within subsec. XVII, under the rule of ejusdem generis.) The income from several of these enterprises is derived in large part from outside or even interstate business. Some of the utilities would ordinarily enjoy freedom from competition; some would not.
In arguing that a construction of the three subsections together, and in connection with the public service commission law, does not justify the application of the maxim expressio unius, etc., it may be pointed out that subsection XVIII as it stands now does not wholly exclude the classification of utilities. This is because it still contains the clause permitting the licensing, taxation and regulation of posts, wires and conduits of the five utilities mentioned in the sixth preceding paragraph, and makes the classification provision near the end of the subsection applicable to them. But appellant's main contention is based on the legislative history of Sec. 6609 and its three subsections, supra, as drawn chiefly from the Senate Journal of the 47th General Assembly, pp. 782-3, and the original bill for the second class city Act of 1913.
The predecessor statute of Sec. 6609 was Sec. 8890, R.S. 1909. The only utilities named therein were telegraph companies and "street railroad cars." Second class cities were permitted to license, tax and regulate them. In 1913 the original bill for the new second class city Act was House Bill 148. Section 8, subsection "eighteenth" thereof greaty expanded the predecessor statute and included the twelve utilities heretofore frequently mentioned (except water companies), still providing they should be licensed, taxed and regulated. It also contained the provision about the poles, wires and conduits of the five utilities. Furthermore there was a subsection "ninth" in Sec. 8 permitting the cities to regulate the construction, operation, service and rates of utilities under franchise; and a subsection "seventeenth" dealing with the antequated subject of wharves, harbors, and ferries.
When the House Bill reached the Senate where the new public service commission bill was pending, the Senate amended the House Bill by striking out subsections "ninth" and "seventeenth" thereof; and took out of subsection "eighteenth" the part naming the twelve utilities. These utilities were transferred to a new subsection "seventeenth" to be licensed and taxed only, this being the present subsection XVII of Sec. 6609. Respondents assert the obvious and sole purpose of the Senate in making these amendments (except as to wharves, etc.) was to eliminate all provisions from House Bill 148 which would have permitted second class cities to compete with the Public Service Commission in regulating utilities; and that it had nothing to do with sub-classification. We think the warrantable inferences and logical deductions to be drawn from the above history tend to support respondents' theory, and turn now to the precedents cited by the parties.
Appellant relies on State ex rel. Ashby v. Cairo Bridge Termn. Co., 340 Mo. 190, 197(4), 100 S.W.2d 441, 444 (5-6) as a direct authority showing by analogy that the twelve utilities named in subsection XVII constitute a single class. The defendant bridge company in that case was sued for daily penalties for failure to report its taxable property to the State Tax Commission as required by Sec. 10066, Laws Mo., 1933, p. 422. That statute named ten kinds of utilities to which it was applicable. But the penalty for failure to comply therewith was imposed by another statute, Sec. 10070, R.S. Mo. 1929, Mo., R.S.A., p. 8059, which named only four of those ten utilities, of which the defendant bridge company was one. It challenged the constitutionality of Sec. 10070 on the ground that it denied equal protection of the law and was special legislation. This court upheld that contention saying the ten utilities named in Sec. 10066 constituted a single class, whereas Sec. [617] 10070 exacted the penalty from only four of them and thereby exempted the other six.
We find no fault with the decision but it is not in point. Undoubtedly all ten utilities there named were in the same class, in the sense that all were bound to do the same act, namely to make the tax reports. The statute expressly required it. But that throws no light on the question whether subsection XVII of Sec. 6609 here should be construed to permit sub-classification for taxation. That statute is merely permissive and is silent on the matter of classification.
Another case cited by appellant is Davies Warehouse Co. v. Bowles, 321 U.S. 144, 88 L.Ed. 379, 382, 386, 64 S.Ct. 474, 478 (1, 2), 481 (14). There, the Emergency Price Control Act authorized the Federal Price Administrator to regulate the prices charged for commodities, but contained a proviso that it should not be construed to apply to rates charged by any common carrier "or other public utility." The word utility was not defined. The question was whether the exemption was limited to a fixed class of businesses "traditionally regarded as utilities" everywhere throughout the United States; or to businesses classified by the various state laws as utilities and regulated as such.
The decision held the latter, thus permitting the several states to fix the inclusive limits of the general class of "public utilities" established by the Price Control Act. But we are unable to see that the case helps appellant. Of course the instant subsection XVII does fix one general permissive class of twelve named utilities which are subject to licensing and taxation. But the question here is whether the statute allows the general class to be sub-classified. To some extent the Davies case rather supports respondents' affirmative contention on that point, for it holds the class designated by the words "public utilities" was not fixed and unvarying.
Looking to the decisions cited by respondents. We think it clear under Sec. 3, Art. X of the State Constitution that a City has the power to sub-classify by ordinance the subjects of taxation enumerated in a general taxing statute if there is a reasonable basis for doing it and nothing in the statute forbids. Village of Beverly Hills v. Schulter, 344 Mo. 1098, 1103(3), 130 S.W.2d 532, 535(5, 6). This is true notwithstanding some city charters go further and expressly sanction sub-classification. Edmonds v. City of St. Louis, 348 Mo. 1063, 1072-3, 156 S.W.2d 619, 624-5.
Both parties rely on N.Y. Rapid Transit Co. v. New York, 303 U.S. 573, 578, 87 L.Ed. 1024, 58 S.Ct. 721, which upheld an ordinance levying a similar tax on utilities in New York City for the benefit of unemployment. Respondents cite the case for the pronouncements therein concerning the broad discretion possessed by the taxing power in classifying the subjects of taxation. Appellant invokes it because the New York ordinance apparently included all of the twelve kinds of utilities named in the instant subsection XVII, and none other; and united them in a single class.
The decision plainly holds such a unit class may be created. But we do not regard it as authority that the cities cannot subdivide the class, for two reasons. First, the New York ordinance provided every designated utility shall pay the tax and fixed the amount. In this case, Sec. 6609 and subsection XVII merely empower the cities to levy a tax upon the twelve utilities in the class. It is a permissive power and, as stated by respondents, the members of the class differ characteristically in some respects. Secondly, the New York ordinance was municipal legislation dealing with the particular city. Here, we have a statute applicable to all second class cities in the state. It can hardly be thought that subsection XVII means every such city must tax the twelve named utilities alike, or not at all, regardless of characteristics and local conditions. The latter (state as against national conditions) were treated as controlling in the Davies Warehouse case, supra. See also 37 C.J., sec. 22, p. 180, sec. 22, p. 198, sec. 55, p. 205. We hold subsection XVII standing alone does not on its face require the twelve utilities to be taxed as a single class.
The next question is whether the maxim expressio unius est exclusio alterius should be applied. The decision stressed by appellant in invoking the maxim is City of St. Louis v. Boatmen's Ins. Trust Co., 47 Mo. 150, 154. The defendant insurance company there was prosecuted for failure to take out a city license, as required by ordinance. One defense was that the ordinance levied a tax for revenue in the guise of a license fee, in violation of the [618] City's charter, Laws Mo. 1867, pp. 56, 65, sec. 1, subsec. 45. That subsection only authorized the city "to license all insurance companies," and did not specify any power of taxation. The decision held the right to license alone ordinarily does not imply the right to tax. Then it proceeded to interpret the charter, pointing out that subsection 45, supra, merely permitted the city to license insurance companies, whereas four preceding subsections expressly authorized it to license, tax, regulate, and in some instances suppress, certain other businesses. This, said the opinion, "abundantly show(s) that the mind of the lawgiver was directed to the subject, and that the power to tax was given where it was intended to be exercised, and that it was withheld where it was not so expressed."
We are also referred to two other cases which applied the maxim expressio unius, etc., in the construction of taxing statutes. They are Kansas City v. J.I. Case Threshing Machine Co., 337 Mo. 913, 930(7), 87 S.W.2d 195, 205(13), and Kroger Groc. Baking Co. v. St. Louis, 341 Mo. 62, 73, 106 S.W.2d 435, 439(5-7), 111 A.L.R. 589. Both held the maxim applicable to language in a statute specifying the method of exercising powers (the question here) as well as language granting powers (the question in the Boatmen's Insurance case, supra). There is no doubt about that.
But all the authorities agree that the maxim is a mere auxiliary rule of construction on aid of the fundamental objective, which is to ascertain the intention of the lawmakers; and that it must be applied with caution. It is stated in 50 American Jurisprudence, just cited in the margin, on authority of the Kansas case, also cited, which quotes 25 R.C.L. 1077, that the application of the maxim "should produce a rational interpretation, and support a policy which may be reasonably supposed to have dictated the enactment." And the same text notes the declaration of the United States Supreme Court in Ford v. United States, likewise cited below, that the maxim may properly be invoked "only when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have opposite and contrary treatment."
2 Sutherland, Statutory Construction (3 Ed.), sec. 4917, p. 418; 59 C.J., sec. 582, p. 984; 50 Am. Jur., sec. 245, p. 240, citing State ex rel. O'Bannon v. Cole, 220 Mo. 697, 712(3), 119 S.W. 424, 428(3), 22 L.R.A. (N.S.) 986; Commerce Trust Co. v. Paulen, 126 Kan. 777, 780, 271 P. 388, 389(2), 63 A.L.R. 384, 387; Ford v. United States, 273 U.S. 593, 611, 71 L.Ed. 793, 47 S.Ct. 531.
The language of the decisions varies. One case says the maxim should not be applied if it clearly appears such was not the legislative intent, thus putting the burden on him who protests against its use. Collins v. Russell, 114 F.2d 334, 337(1). Another declares it applicable where there is nothing to indicate a contrary intention. State ex rel. Donahue v. Bd. of Trustees, 211 Ind. 643, 647, 7 457 N.E.2d 196, 198(3). But of some twenty cases decided within the last seven years (with which we shall not burden this opinion) the great majority hold the maxim is simply an aid to construction, to be used cautiously in seeking the lawmakers' intention, and not as a formula to be arbitrarily applied. Three comparable cases in which it was rejected in construing legislation having two or more sections, one containing matter left out of the other, as here, are cited in the margin. We quote the decision which seems most applicable to the present facts, Robb v. Ramey Associates (Del. Sup. Ct.), 14 A.2d 394, 396 (5, 6) omitting the authorities cited:
State ex rel. Curtis v. DeCorps, 134 Ohio St. 295, 298, 16 N.E.2d 459, 461; Industrial Trust Co. v. Goldman, 59 R.I. 11, 18, 193 A. 852, 855(3); American Imp. Co. v. U.S., 26 U.S. Ct. Patent App. 116, 118.
"The maxim, like all rules of construction, is applicable under certain conditions to determine the intention of the lawmaking body when it is not otherwise clear; but it should never be permitted to defeat the plainly indicated purpose of the legislature. . . . Great caution is required in the application of the maxim. . . . It is not a rule of universal application, but is to be applied only as an aid in arriving at intention, and not to defeat the apparent intention. . . . Considerations of injustice, unreasonableness or absurdity are not to be ignored. The mention of one thing is not to be held exclusive when the context shows a different intention; . . ."
[619] In our opinion subsection XVII of Sec. 6609, supra, may well be interpreted to create a general class subject to licensing and taxation, without any annexed condition that all members shall be taxed alike. Certainly no such condition is stated. They would therefore be subject to reasonable sub-classification, according to their respective natures. Injustice might otherwise result as to some for the reasons heretofore stated. And the fact that subsection XVII contains no express authorization for such classification whereas subsection XVIII does, is not persuasive that the power was withheld as to the twelve utilities named in the former subjection — when the history of the legislation is considered. This assignment is overruled.
The next assignment is that the 5% tax levied by Ordinance 301 violates Sec. 7442, which requires city ordinances to conform to state law on the same subject. The theory is that the ordinance tax falls in the same category as the state sales tax, being in effect a tax on the gross sales of the utility, which make up its gross receipts; and that the sales tax is limited by Sec. 11408 to 2% on each retail sale. In other words the ordinance tax exceeds the sales tax and therefore contravenes Sec. 7442, supra.
Appellant cites International Harvester Co. v. Dept. of Treasury of Indiana, 322 U.S. 340, 88 L.Ed. 905, 909, 64 S.Ct. 1019, 1022(4). That case dealt with an Indiana gross income tax which covered sales in the state to purchasers outside and vice versa. It was contended this invaded the field of interstate commerce. In determining the applicability of certain earlier decisions of the United States Supreme Court which dealt with taxes "of different names" but which the court found to be substantially similar in incidence and effect, the opinion said, "We are dealing in this field with matters of substance not with dialectics." Appellant insists we should do the same here.
The question has already been ruled twice by this court. In Ploch v. City of St. Louis, 345 Mo. 1069, 1077(3), 138 S.W.2d 1020, 1024(8), decided in 1940, this court en banc held that the state sales tax is not the same as a municipal license or occupation tax payable by the seller, and does not foreclose the right of municipalities to levy such taxes. The two sections of the Sales Tax Act construed in the Ploch case were Secs. 47, 48, Laws Mo. 1937, p. 568, now Sec's 11454 and 11455. Appellant says the cigarette tax involved in that case was a regulatory measure enacted in the exercise of the police power, which is broader than the mere power to tax. We are asked to distinguish it on that ground. But the Legislature has left the above statutes unchanged since the Ploch case was decided, Laws Mo. 1941, p. 713; Laws Mo. 1943, p. 1029. And less than four months ago the Ploch case was followed and reaffirmed by Division I in a case where the tax was the same as here, a license tax of 5% on the gross receipts of an electric utility. Union Electric Co. v. City of St. Charles, 352 Mo. 1194, 181 S.W.2d 526, 529(8). On authority of these two decisions the assignment must be overruled.
This, and the ruling already made on the first assignment, result in the affirmance of the judgment below. All concur.