Opinion
December 11, 1940.
1. MUNICIPAL CORPORATIONS: "And/Or." The use of the symbol "and/or" in an ordinance is meaningless.
2. MUNICIPAL CORPORATIONS: Ordinance. An ordinance of a city must be clear, certain and definite so that the average person upon reading it may understand whether he will incur a penalty for his action.
3. MUNICIPAL CORPORATIONS: Tax Ordinance. An ordinance of the city of Washington, designed to tax the transportation of gasoline within the city, was framed so as to tax a transportation to filling stations not owned by the transporter and provided that no tax should be paid on a transportation to filling stations owned by the transporter, it was not uniform on the classification of subjects in violation of Section 3, Article X of the Constitution.
Appeal from Franklin Circuit Court. — Hon. R.A. Breuer, Judge.
AFFIRMED.
H.A. Krog, James Booth and James L. Anding for appellant.
(1) A city of the third class has the power and authority to levy and collect a license tax on merchants of all kinds, and oil stations, wholesale and retail. R.S. 1929, sec. 6840. (a) The term "merchant" includes one who is engaged in the business of selling gasoline. Viquesney v. Kansas City, 266 S.W. 700; Beverly Hills v. Schulter, 130 S.W.2d 532; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281; Troy v. Harris, 102 Mo. App. 51. (b) A municipal corporation has the power to divide a class taxable under its charter into subclasses and tax these subclasses differently. Beverly Hills v. Schulter, 130 S.W.2d 532; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281; St. Charles ex rel. Palmer v. Schulte, 264 S.W. 654. (2) Where a tax is imposed and is to be measured by the volume of gasoline sold, it is an occupation tax, one form of excise tax. Viquesney v. Kansas City, 266 S.W. 700. (3) The constitutional requirement of uniformity, as applied to taxes on occupations, is satisfied when the burden imposed falls alike on all persons who are in the same situation. Beverly Hills v. Schulter, 130 S.W.2d 532; Ex parte Asotsky, 5 S.W.2d 22; St. Charles ex rel. Palmer v. Schulte, 264 S.W. 654. (a) The presumption is that the tax imposed by the ordinance is uniform. State ex rel. v. Koeln, 61 S.W.2d 754; Beverly Hills v. Schulter, 130 S.W.2d 532. (b) An ordinance practically identical with the ordinance in question was held not to violate the constitutional provisions as to uniformity; due process of law and equal protection was not unreasonable. Beverly Hills v. Schulter, 130 S.W.2d 532; Viquesney v. Kansas City, 266 S.W. 700; Bowman v. Continental Oil Co., 256 U.S. 642, 41 Sup. Ct. 606; Sedalia v. Standard Oil Co., 66 F.2d 757. (4) Double taxation is not favored and is never presumed. State ex rel. Pearson v. Louisiana Mo. River Railroad Co., 196 Mo. 523; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281. (a) Under the rules of construction, the elimination of a part of the ordinance as unconstitutional does not affect the validity of the remainder. O'Donnell v. Wells, 21 S.W.2d 762; St. Louis v. Grafeman Dairy Co., 190 Mo. 492; City of Rockville v. Merchant, 60 Mo. App. 365. (5) The Sales Tax Act does not prohibit the occupation tax levied by the ordinance under consideration. Viquesney v. Kansas City, 266 S.W. 702; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 282; Sedalia ex rel. v. Standard Oil Co., 66 F.2d 757; Ploch v. St. Louis, 138 S.W.2d 1020; Laws 1937, p. 558, sec. 3. (6) The courts will not give the ordinance a construction which will render it unconstitutional, absurd or unreasonable, when it is susceptible of a constitutional or reasonable one, nor a construction which will make it an instrument by which to work an injustice. Bassen v. Monickton, 274 S.W. 404; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281.
John B. Busch and Theodore P. Hukriede for respondents.
(1) The ordinance in question is a revenue measure rather than a regulatory act under the police power. Kroger Grocery Baking Co. v. St. Louis, 106 S.W.2d 435; Keane v. Strodtman, 18 S.W.2d 896. (2) The ordinance providing for a gasoline tax of one cent per gallon on gasoline sold from some retail stations in the city of Washington and a tax of one-half cent per gallon on gasoline sold from other retail stations within the same city is unconstitutional for lack of uniformity. Sec. 3, Art. X, Mo. Const.; St. Louis v. Spiegel, 75 Mo. 145; St. Charles v. Schulte, 305 Mo. 124; St. Louis v. Buskowitz, 273 Mo. 543. (3) The ordinance cannot apply to individuals or corporations engaged in the transaction of gasoline whose places of business are located outside the city of Washington. St. Charles v. Nolle, 51 Mo. 122; St. Clair v. George, 33 S.W.2d 1019.
Action to collect a license tax. Defendants question the validity of an ordinance of the City of Washington, the pertinent parts of which follow:
(1) "No person, . . . shall engage in . . . the business of selling gasoline . . . in the City of Washington, Missouri, nor shall any person, . . . transport the same for the use of themselves or other persons, . . . in said City, and/or sell the same in or from . . . containers, without first having obtained from the city clerk a license so to do."
(2) "Every person, . . . engaged in the business of selling gasoline . . . and/or transporting the same as defined in the foregoing section shall pay . . . to the city collector a monthly license tax on the 10th day of each month for the preceding month, the amount of said license to be determined at a sum equal to ½ cent for every gallon of gasoline . . . sold by or transported by such person, . . . during the preceding month; provided that any person, . . . may deliver gasoline . . . to its own filling station from . . . containers without paying an additional tax on such delivery, if they pay or cause to be paid the aforesaid tax on the amount sold or distributed at the filling station to which such deliveries are made." (Italics ours.)
The other sections relate to the keeping of records, making monthly reports, city collector's duties, and penalties for violations of the ordinance.
The trial court found the ordinance invalid, judgment accordingly and plaintiff appealed.
Quite a number of filling stations are located in Washington. Defendants own a bulk station and two filling stations in said city. Another owns a bulk station and one filling station. Others owning a filling station do not own a bulk station.
The use of the symbol "and/or" in the ordinance will be noted. We have ruled that said words so used are meaningless. [State ex rel. v. Douglas et al., 330 Mo. 187, 95 S.W.2d 1179, 1180; 22 Washington University Law Quarterly, p. 110.]
Plaintiff cites Village of Beverly Hills v. Schulter, 344 Mo. 1098, 130 S.W.2d 532. The symbol "and/or" is in the ordinance reviewed in that case. The said words were not challenged. In that case we neither considered nor ruled on the use of the words in an ordinance.
Furthermore, an ordinance must be clear, certain and definite so that the average person may, upon reading it, understand whether he will incur a penalty for his action. [Diemer v. Weiss, 343 Mo. 626, 122 S.W.2d 922.]
We think the ordinance is an effort to tax the transportation of gasoline within the city. In doing so it taxes a transportation to filling stations not owned by the transporter and provides that no tax shall be paid on a transportation to filling stations owned by the transporter.
Thus it appears that the tax is not uniform on the classification, and for that reason is in violation of Sec. 3, Art. X of the Constitution. [City of Cape Girardeau v. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040, 1042.]
The judgment should be affirmed. It is so ordered. All concur.