Opinion
November 5, 1935.
1. JURISDICTION: Political Subdivisions of the State. The Supreme Court does not assume jurisdiction of an appeal where the city of St. Louis is a party, not as a county, a political subdivision of the State, but in its municipal corporative character.
In an action to restrain the city, its excise commissioner and license collector from enforcing an order providing for a license fee for the privilege of manufacturing and selling for resale, intoxicating liquors in the city, the Supreme Court did not have jurisdiction of the appeal.
By an ordinance enacted by the city of St. Louis under authority delegated by Section 25 of the Liquor Control Act of 1933-34, the city of St. Louis proceeded in its capacity as a municipality and not in the exercise of any governmental function.
2. JURISDICTION: Amount Involved. In an action to restrain the city of St. Louis and its officers from enforcing an order providing for a license fee for the privilege of manufacturing and selling liquors in the city, where the amount involved was $1500, the Supreme Court did not have jurisdiction of the appeal.
3. JURISDICTION: Courts of Appeals. The Courts of Appeals have jurisdiction to construe a State statute and determine whether a city ordinance is in conflict with the statute delegating authority to a municipal corporation.
A State officer is one whose official duties and functions are coextensive with the State, and the duties of the officers of the city, under an ordinance providing for a license fee for the privilege of manufacturing and selling liquors, embraces duties of a municipal nature only.
A case involving the power of a city to impose a license tax, under delegated statutory authority, does not involve a construction of the revenue laws of the State within the meaning of Section 12. Article IX of the Constitution, so as to give the Supreme Court jurisdiction of the appeal.
Appeal from Circuit Court of City of St. Louis. — Hon. O'Neill Ryan, Judge.
TRANSFERRED TO THE ST. LOUIS COURT OF APPEALS.
William Waye, Jr., and Allen, Moser Marsalek for appellant.
(1) Under the provisions of Sections 20-25, inclusive, Article IX of the Constitution of Missouri, the charter of the city of St. Louis and all ordinances enacted pursuant thereto must at all times be in harmony with and subject to the Constitution and laws of the State of Missouri. State ex rel. Knese v. Kinsey, 314 Mo. 80; In re East Bottoms Drainage Dist., 305 Mo. 587; St. Louis v. Dreisoerner. 243 Mo. 217; St. Louis v. Dorr, 145 Mo. 466. (2) Since plaintiff is a manufacturer of intoxicating liquor, that is, of beer with an alcoholic content in excess of 3.2 per cent by weight, conducting its manufacturing operations wholly within the city of St. Charles, Missouri, and merely disposes of a portion of its manufactured product to retailers in the defendant city of St. Louis for resale, to whom it delivers the same by truck in quantities of not less than one (1) gallon, the defendant city of St. Louis has no authority to impose upon plaintiff any license fee, tax or charge for the privilege of so transporting its beer into that city and there selling and delivering it to retailers. Insofar as the ordinance referred to in the petition, by Section 10 thereof or otherwise, purports to authorize the defendant city to exact any license fee whatsoever from any manufacturer not located within the limits of said city, for the privilege alone of entering said city and selling and delivering a portion of its manufactured product to retailers therein, said ordinance is out of harmony and in direct conflict with the Liquor Control Act of this State, passed by the Fifty-seventh General Assembly in special session and in force at the time of the enactment of said ordinance, which limited the right of incorporated cites to exact license fees or taxes for the manufacture or sale of intoxicating liquors by providing that such cities "may charge for licenses issued to manufacturers, distillers, brewers, wholesalers and retailers of all intoxicating liquor, within their limits." Laws 1933-34, Ex. Sess., pp. 77-95, sec. 25. (a) By specifically providing, by said Section 25 of said Liquor Control Act passed by the Fifty-seventh General Assembly, that cities may charge for licenses issued to "manufacturers, distillers, brewers, wholesalers and retailers" of intoxicating liquor "within their limits" the Legislature necessarily excluded and withheld from every municipality of the State the right to exact license fees, charges or taxes for the manufacture or sale of intoxicating liquor, from any person or corporation not embraced within any of the classes there specifically enumerated, or not located within the corporate limits of such municipality, under the familiar rule of statutory construction, expressio unius est exclusio alterius. State ex inf. Conklin v. Sweeny, 270 Mo. 692. (b) Plaintiff corporation is a manufacturer and a brewer, but it is not a manufacturer or brewer within the limits of the city of St. Louis. Obviously, plaintiff is not a distiller or a retailer. Neither may plaintiff, by reason of selling and delivering its manufactured product to retailers in the defendant city, be classified as a wholesaler and taxed as such. A wholesaler is a species of merchant, a dealer, a mere trafficker; one who buys and resells to thereby earn a profit. Great A. P. Tea Co. v. Cream of Wheat Co., 227 F. 47; City of Ozark v. Hammond, 329 Mo. 1123; Viquiesney v. Kansas City, 305 Mo. 498; St. Joseph v. Dye, 72 Mo. App. 214. "The marked distinction between a manufacturer and a merchant is that the merchant, or dealer, sells to earn a profit, and the manufacturer sells to take the profit already earned. He must buy the materials out of which to make his finished product and he must sell the product of his factory after it is finished. But such dealings are not his occupation." City of Ozark v. Hammond, 329 Mo. 1123. (c) The contention of defendants that plaintiff, in selling its manufactured product to retailers in the defendant city, is "wholesaling intoxicating liquor" within the limits of said city, and hence may be taxed as a wholesaler, is quite untenable. Section 25 of said Liquor Control Act does not authorize a municipality to levy a license tax upon any person who may sell any intoxicating liquor within its limits, but only upon one falling within one of the classes enumerated in the statute and who is located within such city. The ordinance, by its terms, does not follow the statute, but is broader than the statute. And to the extent that it is broader than the statute it is null and void. Since plaintiff can be classified only as a manufacturer, and is not within the limits of the city of St. Louis, the city is wholly without authority to charge plaintiff a license fee for the mere privilege of entering the city and there selling and delivering its manufactured products to retailers. City of St. Clair v. George, 225 Mo. App. 30; St. Charles v. Nolle, 51 Mo. 122; City of Argenta v. Keath, 197 S.W. 686; City of Cairo v. Adams Express Co., 54 Ill. App. 87. (d) Defendants construe the words "within their limits," in Section 25 of the Liquor Control Act of the Fifty-seventh General Assembly in special session, as meaning that a manufacturer need not be located within the limits of a city in order to be subject to a municipal tax under said section, but is within the limits of such city, within the meaning of the act, if he enters the same and there sells and delivers any of his manufactured product; that he then becomes a "wholesaler" within the limits of such city. That such was not the legislative intent in enacting said Section 25 appears not only from the language of the section as originally enacted, but from the fact that the Fifty-eighth General Assembly, by committee substitute for Senate Bill No. 30, approved May 9, 1935, amended said Section 25 by inserting the word "located" between the word "liquor" and the word "within" making that portion of said section here involved read as follows: "The Board of Aldermen, City Council or other proper authorities of incorporated cities may charge for licenses issued to manufacturers, distillers, brewers, wholesalers and retailers of all intoxicating liquor located within their limits." Such insertion of the word "located" in said section constituted a legislative construction of the term "within their limits," as used in the section as originally enacted. Obviously the purpose thereof was to make it clear that it was the legislative intent in enacting the original section that a city should not be authorized to exact any license fee from a manufacturer or wholesaler having no place of manufacture or established place of business in said city, but who might transport intoxicating liquor into said city and there sell and deliver it to retailers for resale therein. 2 Sutherland on Statutory Construction (2 Ed.), p. 777, sec. 401; Hugo v. Miller, 50 Minn. 105, 52 N.W. 383; 25 R.C.L., p. 1064, sec. 288; United States v. Freeman, 3 How. 565, 11 L.Ed. 728. (e) The construction of said Section 25, for which defendants contend, would lead to harsh, unreasonable, absurd and confiscatory results. It would mean that plaintiff, who, as the petition alleges and the demurrer admits, sells and delivers its manufactured product to retailers in a large number of cities in this State, would not only be required to pay, as the petition shows it does, its fee for a state license, its state taxes computed upon the volume of its business done, its manufacturer's license fee to the city of St. Charles, but could be charged an annual license fee by every municipality into which it may haul and deliver to retailers any of its beer whatsoever. The intention will not be imputed to the Legislature to permit the imposition of such a burden upon brewers in this State. A cardinal rule of statutory construction, applying here with much vigor, is that in construing a statute with the object of ascertaining and giving effect to the legislative intent evidenced thereby, the statute will, if possible, be given a reasonable, sensible construction, and one that will avoid injustice, oppression or absurd consequences. Rutter v. Carothers, 223 Mo. 643; State ex rel. Emmons v. Farmer, 271 Mo. 316; Stack v. Baking Co., 283 Mo. 411; State ex rel. Taylor v. Daues, 313 Mo. 211.
Charles M. Hay and E.H. Wayman for respondents.
(1) The plaintiff is a wholesaler within the limits of the city of St. Louis, in that it conducts within the city of St. Louis wholesale transactions or sales of intoxicating liquor. (2) The fact that plaintiff is a manufacturer in St. Charles does not prevent it from also being classed as a wholesaler at some other place where it conducts wholesale transactions. In fact, the State Liquor Control Act recognizes that plaintiff may be a manufacturer and at the same time sell at wholesale, even at the place of the plaintiff's residence. Laws 1933-34, Ex. Sess., sec. 21, p. 84. (3) Trafficking in intoxicating liquor is not a lawful business engaged in by natural or inherent right, but may be carried on only as authorized by express legislation. Therefore, liquor laws should be liberally construed to accomplish the purpose of their enactment. State ex inf. v. Mo. Athletic St. Louis Clubs, 261 Mo. 590. Interpreting the language of Section 25 of the Liquor Control Act in accordance with the foregoing rule, the plaintiff is a wholesaler located within the limits of the city of St. Louis, either under the law as originally written or as subsequently amended.
Fischbach Brewing Company, a corporation, operating a brewery, with its place of business in the city of St. Charles, Missouri, seeks to restrain the city of St. Louis, the Excise Commissioner and License Collector of said city from enforcing against said corporation, its agents, servants and employees, the provisions of an ordinance (No. 40,274) of said city, effective about March 23, 1934, and providing, among other things, for the appointment of an excise commissioner of said city, for a license fee, tax or charge for the privilege of manufacturing intoxicating liquors for sale and consumption in said city for beverage purposes, or for the privilege of selling such liquors for resale to others in said city, for the issuance of the licenses by the license collector of said city (to whom said fees are payable), subject to the approval of said excise commissioner, who is charged with the duty of enforcing the provisions of the ordinance, and providing penalties for its violation. Defendants demurred on the ground the petition failed to state a cause of action. From a judgment sustaining said demurrer, plaintiff appeals.
Plaintiff corporation is engaged in the manufacture of beer containing in excess of 3.2 per cent of alcohol by weight, with its brewing or manufacturing plant and place of business located in the city of St. Charles, Missouri. It does not manufacture any part of its products or maintain any place of business, of nature whatsoever, in the city of St. Louis. The beer manufactured by plaintiff is sold, distributed and delivered in quantities of not less than one gallon by plaintiff, from St. Charles, to retailers, for resale by them, in said city of St. Louis, and elsewhere.
Section 10 of said ordinance, which is directly involved, provides: "For the privilege of manufacturing intoxicating liquors for sale and consumption in the city of St. Louis, for beverage purposes, or for the privilege of selling such intoxicating liquors for resale by any other person in the city of St. Louis, the following fees shall be charged: (a) for the manufacture and/or sale for such resale of beer with an alcoholic content in excess of 3.2 per cent by weight, Fifteen Hundred Dollars ($1500.00) per year in advance."
Section 25 [Laws Ex. Sess. 1933-34, p. 88] of the Liquor Control Act provides: "The Board of Aldermen, City Council or other proper authorities of incorporated cities may charge for licenses issued to manufacturers, distillers, brewers, wholesalers, and retailers of all intoxicating liquor, within their limits, fix the amount to be charged for such license, and provide for the collection thereof, make and enforce ordinances for the regulation and control of the sale of all intoxicating liquor within their limits, not inconsistent with the provisions of this act, and provide for penalties for the violation thereof."
Section 21 [Laws Ex. Sess. 1933-34, p. 84], of said act, providing for the procurement of a license from the Supervisor of Liquor Control, contains the following proviso: " Provided further, that manufacturers and blenders of intoxicating liquors shall not be required to take out a merchant's license for the sale of their products at wholesale at the place of manufacture, or in quantities of not less than one (1) gallon."
Plaintiff's petition, in substance, further alleges that said ordinance in so far as it undertakes to levy, assess and exact a license fee from plaintiff (or others similarly situate) is in direct conflict with, and the enactment and enforcement thereof is directly prohibited by the aforesaid Section 25 and proviso to Section 21, and, hence, said ordinance is unconstitutional, null and void under the provisions of Sections 23 and 25 of Article 9 of the Constitution of Missouri.
The jurisdiction of this court over this appeal challenges our attention. [See Sec. 12, Art. 6, and Secs. 3 and 5, Amend. of 1884, Constitution of Missouri, pp. 108 and 118, respectively, R.S. 1929, pp. 561, 641, 644, respectively, 15 Mo. Stat. Ann.] The only grounds on which a contention might possibly be urged that this court has jurisdiction are: where the amount in dispute, exclusive of costs, exceeds the sum of seventy-five hundred dollars [See Sec. 1914, R.S. 1929, Mo. Stat. Ann., p. 2587], in cases involving the construction of the Constitution of this State, or the revenue laws of this State, or where a county or other political subdivision of the State or any State officer is a party.
Heretofore we have assumed jurisdiction over appeals involving analogous issues when the city of St. Louis was a party of record on the theory said city was a "political subdivision" of the State within the meaning of Section 12, supra [See, among others, St. Louis v. Murta, 283 Mo. 77, 80, 222 S.W. 430(1), stating "we take jurisdiction of the cases because the city of St. Louis is a political subdivision of the State"], and have refused to assume jurisdiction, absent a live constitutional issue, of appeals involving ordinances, exacting a license fee or charge, of the city of St. Louis where said city was not a party of record [Mike Berniger Moving Co. v. O'Brien (Mo.), 234 S.W. 807, 812(2), transferring the case to the St. Louis Court of Appeals, 240 S.W. (Mo. App.) 481].
The appeal in the instant case was perfected March 6, 1935. Thereafter, June 5, 1935, in Lovins v. St. Louis, 336 Mo. 1194, 84 S.W.2d 127, this court en banc, in a full, yet concise, opinion by HAYS, Judge, recharted our course in assuming jurisdiction over appeals wherein said city of St. Louis may be a party of record on the theory said city constitutes a "political subdivision" of the State. That case held [l.c. 129] the city of St. Louis to be, in a qualified sense, insofar as it performs the functions of a county, a county, but in all other respects, and predominately, a city and not a county. The court said [l.c. 130(4)]: "The sole and only section found in the amendment which confers upon St. Louis any rights, powers or functions as a quasi county or political subdivision of the State in Section 23 (R.S. 1929, p. 131), of which the relevant part reads: `The city, as enlarged, shall be entitled to the same representation in the General Assembly, collect the State revenue and perform all other functions in relation to the State, in the same manner, as if it were a county as in this Constitution defined.' Under the maxim ejusdem generis `all other functions' must be interpreted as comprising functions of the same general nature as those specified in connection with that phrase, and the intended functioning means normal action in relation to the matter specified and others of the same nature. A county, as a governmental unit composed of the people resident within its prescribed territory, can only function concerning affairs committed to it as a governmental unit. It has nothing to do with the purely corporate or nongovernmental affairs of the city as such and no functions concerning them to perform. The city of St. Louis, insofar as its county functions extend, is coequal in that respect with all other counties in the State but not different therefrom. Constitutionally, while St. Louis in its entirety is of a dual nature, it is in no sense either a super-city proper or a super-county. It is the declared purpose of said Section 23 that the charter of the city shall always be in harmony with the Constitution and subject to the laws of the State.
"[5] Nor is there to be found in the amendment any basis to support the view that the amendment contemplated, or made provision for, any greater or different right of appeal in matters concerning the city's ministerial or nongovernmental capacity, or its rights, powers, obligations, or more especially duties, as a city proper. On the contrary, the matter quoted above constitutes in effect a limitation upon the city as an entirety in respect of appeal and confines the same by implication to county rights and functions." (Italics ours.)
Plaintiff contends it is a manufacturer within the meaning of Section 25, supra, of the Liquor Control Act, and that, being located in St. Charles and having no place of business in St. Louis, it is not a manufacturer or wholesaler subject to the provisions of said ordinance, especially Section 10, supra, imposing a license tax or charge "for the manufacture and/or sale of such resale of beer." On the other hand, defendants contend the city of St. Louis is attempting "to exact of plaintiff a license fee for sales which are made and consummated by the plaintiff at wholesale wholly within the city of St. Louis." The city of St. Louis in the enactment of the ordinance here involved proceeded under the authority delegated by said Section 25, acted in its capacity as a municipality and not in the exercise of any governmental function of a county. The authority to exact a charge for licenses issued to "manufacturers" or "wholesalers" of all intoxicating liquor, fix the amount to be charged for such license, and provide for the collection thereof, as well as to make and enforce ordinances for the regulation and control of the sale of all intoxicating liquors within their limits, and provide for penalties for the violation thereof, was vested by said Section 25 only in the board of aldermen, city council or other proper authorities of incorporated cities. Under the authority of Lovins v. St. Louis, supra, this appeal, insofar as the city of St. Louis being a party of record is concerned, involves municipal, not county, rights and functions, and is governed by like rules of law applying to appeals wherein other municipalities of the State are parties of record.
So far as affirmatively disclosed the amount involved is the license fee of fifteen hundred dollars, which does not bring the appeal within our jurisdiction.
As to the constitutional issue. Section 23 of Article 9 of the Constitution of the State of Missouri, speaking of the charter of the city of St. Louis, provides: "Such charter and amendments shall always be in harmony with and subject to the Constitution and laws of Missouri." The provision refers to the charter of the city of St. Louis. Section 25 of said article provides: "Notwithstanding the provisions of this article, the General Assembly shall have the same power over the city and county of St. Louis that it has over other cities and counties of this State." The constitutional issue is of a general nature. All ordinances of all municipalities of the State are subject to like restrictions. If the ordinance conflicts with or is in contravention of the statutory authority delegated it is void because it exceeds such statutory authority. The issue turns on a construction of the statutory law of this State rather than a construction of a constitutional provision with which the ordinance may or may not conflict. Courts of Appeal have jurisdiction to construe statutory enactments whenever necessary to a decision of an appeal within their jurisdiction. [Stock v. Schloman, 322 Mo. 1209, 18 S.W.2d 428, 430(2).] The general rule of law that a municipality may not validly enact an ordinance which violates provisions of the Constitution of this State (or contravenes the statutes of this State) [St. Louis v. Dreisoerner (1912), 243 Mo. 217, 223, 147 S.W. 998, 999; Wood v. Kansas City (1901), 162 Mo. 303, 309, 62 S.W. 433, 434; Paris v. Graham (1862), 33 Mo. 94] has been the settled law of this State so long that it may not at this late date serve as a foundation to vest appellate jurisdiction in this court [Richmond v. Creel, 253 Mo. 256, 257, 161 S.W. 794, 795(3); State ex rel. v. American Surety Co. (Mo.), 210 S.W. 428, 429(2); Trembley v. Fidelity Casualty Co. (Mo.), 223 S.W. 887, 888 (1)]. Defendants, frankly conceding that the ordinance must not be inconsistent with the State law, do not debate the issue.
A State officer is not a party to the suit. The city in the enactment of the ordinance acted under statutory authority delegated to municipalities. The duties imposed upon officers of the city under said ordinance, limited by the statutory delegation of authority, of necessity embrace duties of a municipal nature only. This provision of the Constitution has reference to officers whose official duties and functions are coextensive with the State [State ex rel. v. Hoffman, 313 Mo. 667, 670, 288 S.W. 16, 17(3); and see State ex rel. v. St. Louis Board of Health, 90 Mo. 169, 170, 2 S.W. 291; State ex rel. v. Higgins, 144 Mo. 410, 412, 46 S.W. 423].
It has been expressly held that a case involving the power of a city to impose a license tax or charge under delegated statutory authority does not involve a construction of the revenue laws of this State within the meaning of Section 12, Article 9, of the Missouri Constitution [St. Joseph v. Metropolitan Life Insurance Co., 183 Mo. 1, 8, 81 S.W. 1080, 1082; Richmond v. Creel, 253 Mo. 256, 161 S.W. 794, 795(4); and see Mike Berniger Moving Co. v. O'Brien, supra].
We are unable to find any sufficient foundation for assuming jurisdiction over this appeal. Disposing of the appeal upon its merits might have taken less effort and time. However, we have repeatedly ruled we should not rule on the merits of an appeal over which we have no jurisdiction; and, therefore, this cause should be transferred to the St. Louis Court of Appeals. It is so ordered. Cooley and Westhues, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.