Summary
In Kroger Grocery Banking Co. v. City of St. Louis, 341 Mo. 62, 106 S.W.2d 435, 111 A.L.R. 589, the ordinance provided a license tax for revenue graduated according to the number of stores.
Summary of this case from Grant v. Kansas CityOpinion
June 21, 1937.
1. MUNICIPAL CORPORATION: Taxation: Chain Stores. An ordinance exacting a license for the privilege of conducting chain stores is on its face a revenue, not a regulatory, measure, and an exercise of the governmental taxing power.
2. MUNICIPAL CORPORATION: Taxation. Though the city of St. Louis is operating under a home rule charter, any exercise by it of the governmental function of the taxing power must be in harmony with and subject to the Constitution and laws of the State.
3. MUNICIPAL CORPORATION: Taxing Chain Stores. The Supreme Court in considering the validity of an ordinance of St. Louis imposing a license fee upon chain stores is not concerned with the motives attending its enactment nor the expediency, wisdom or justness of the license imposed but only with the power of the city to exact it.
4. MUNICIPAL CORPORATION: Taxing Chain Stores. Section 7596, Revised Statutes 1929, providing that any city of over three hundred thousand inhabitants is authorized for city and local purposes to license, tax and regulate the occupation of merchants and manufacturers, and may graduate the amount of license imposed in proportion to the sales made during the year next preceding any date fixed, is permissive, not mandatory, as to the imposition of the tax; but the word "may" in authorizing a graduating tax is equivalent to "must" or "shall."
Any attempt to exercise the authority to exact the graduated license fee must be in conformity with the authority delegated; the exercise of such power is within the maxim expressio unius est exclusio alterius.
The city of St. Louis transcended the scope of the authority conferred upon it by imposing under Ordinance No. 39619 a license fee graduated according to the number of stores operated or the merchants operating more than one store, such license not being graduated in proportion to the annual sales.
Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.
AFFIRMED.
Edgar H. Wayman, John G. Burkhardt and Andrew J. Reis for appellants.
(1) The city of St. Louis has power to levy license tax upon "merchants," and it may by legislative action subdivide the class upon any reasonable basis. Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281; Ex parte Asotsky, 319 Mo. 823, 5 S.W.2d 22; St. Charles ex rel. Palmer v. Schulte, 305 Mo. 124, 264 S.W. 654; Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700; City of Aurora v. McGannon, 138 Mo. 38, 39 S.W. 469; Campbell v. Harrisonville, 50 F.2d 670. (2) The classification of merchants into chain store merchants and other merchants is reasonable, constitutional and valid. Fox v. Standard Oil Co., 294 U.S. 87, 79 L.Ed. 780; Liggett Co. v. Lee, 288 U.S. 517, 77 L.Ed. 929; State Board, etc., v. Jackson, 283 U.S. 527, 51 Sup. Ct. 540, 75 L.Ed. 1248, 73 A.L.R. 1464; Singer Sewing Machine Co. v. Brickell, 233 U.S. 58, L.Ed. 974, 34 Sup. Ct. 493; Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 33 Sup. Ct. 441, 57 L.Ed. 730; Bradley v. Richmond, 227 U.S. 477, 33 Sup. Ct. 318, 57 L.Ed. 603; Quong Wing v. Kirendall, 223 U.S. 59, 32 Sup. Ct. 192, 56 L.Ed. 350; Bell's Gap Railroad Co. v. Pennsylvania, 134 U.S. 232, 33 L.Ed. 892; Am. Sugar Refining Co. v. Louisiana, 179 U.S. 89, 45 L.Ed. 102; Great A. P. Co. v. Maxwell, 154 S.E. 838, 199 N.C. 433, affirmed 52 Sup. Ct. 26; Great A. P. Co. v. Morrissett, 58 F.2d 991, affirmed 284 U.S. 584; Southern Grocery Stores v. S.C. Tax. Comm., 55 F.2d 931; Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22; Smith Co. v. Fitzgerald, 259 N.W. 352, 270 Mich. 659; Penney Co. v. Diefendorf, 32 P.2d 784; Brown-Forman Co. v. Kentucky, 217 U.S. 573, 54 L.Ed. 883; Morris v. Duby, 274 U.S. 135, 71 L.Ed. 968; Welch v. Swasey, 214 U.S. 91, 53 L.Ed. 923; Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L.Ed. 303; St. Louis Adv. Co. v. St. Louis, 249 U.S. 269, 63 L.Ed. 599; Hammond Packing Co. v. Montana, 233 U.S. 331, 58 L.Ed. 985; Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 72 L.Ed. 177. (3) The city of St. Louis has the power to classify merchants into chain store merchants. Safeway Stores v. Portland, 42 P.2d 162; Great A. P. Tea Co. v. Spartanburg, 170 S.E. 273, 170 S.C. 262; Clark v. Titusville, 184 U.S. 328, 46 L.Ed. 569; Metropolis Theater Co. v. Chicago, 228 U.S. 61, 57 L.Ed. 730. (4) There is no other license tax upon the privilege of operating chain stores and no question of double taxation is involved. St. Louis v. Baskowitz, 273 Mo. 574; St. Louis v. United Rys. Co., 263 Mo. 448; St. Louis v. Weitzel, 130 Mo. 619; St. Joseph v. Ernst, 95 Mo. 360; St. Louis v. United Rys. Co., 210 U.S. 266. (5) Plaintiff's merchant's license does not constitute a contract with the city so as to bar the right of the city to impose the tax in question. St. Louis v. United Rys. Co., 210 U.S. 266. (6) Ordinance No. 39619 is not in conflict with Sections 10100, 9870, 7289, 7596 or with Article XVII, Chapter 59, Revised Statutes 1919. (7) Section 9 of Ordinance No. 39619, when properly construed, is merely a provision to prevent the establishment of ingenious, corporate or organization structures, which would prevent the application of the ordinance to stores which are within the class designated. Great A. P. Co. v. Maxwell, 199 N.C. 433, 154 S.E. 838, affirmed 52 Sup. Ct. 26. (8) Exemption of those whose principal business is that of dealing in petroleum products is within the bounds of reasonable classification. Southern Grocery Stores, Inc., v. S.C. Tax Comm., 55 F.2d 931; Liggett Co. v. Lee, 288 U.S. 517; Great A. P. Tea Co. v. Maxwell, 284 U.S. 575, 76 L.Ed. 500; Fox v. Standard Oil Co., 294 U.S. 87, 79 L.Ed. 780; Moore v. State Board, 40 S.W.2d 349, 239 Ky. 729; Read Drug Co. v. Chemical Co., 166 A. 742, 165 Md. 250; Penney Co. v. Diefendorf, 32 P.2d 784; Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 702; McKenney v. Alexandria, 147 Va. 157; Smith v. Fitzgerald, 270 Mich. 659, 259 N.W. 352. (9) When the power to tax exists, the extent of the burden is a matter for the discretion of the lawmakers. Fox v. Standard Oil Co., 294 U.S. 87, 79 L.Ed. 780; Alaska Fish Salting B. Company v. Smith, 255 U.S. 44, 65 L.Ed. 489. (10) The motive, purpose or intent of the board of aldermen in passing an ordinance cannot be inquired into by the courts. Magnano Co. v. Hamilton, 292 U.S. 40, 78 L.Ed. 1109; State v. Gardner, 218 Mo. App. 217; State ex rel. v. Brooks, 220 Mo. App. 708; Bennett v. Pulaski, 52 S.W. 913; Downey v. State, 160 Ind. 578; Shepard v. Seattle, 59 Wn. 363; Vories v. Seattle, 74 Wn. 199.
Nichols, Morrill, Wood, Marx Ginter, Rassieur Rassieur and Alfred C. Wilson for The Kroger Grocery Baking Company, The Great Atlantic Pacific Tea Company and United Cigar Stores Company of America.
(1) The ordinance attacked, imposing a license fee upon owners or operators of chain stores, graduating the tax in proportion to the number of stores operated, exceeds the city's powers and is void for the following reasons: (a) A municipal corporation has no powers which are not derived from and are subordinate to the State. All powers of the city of St. Louis must come from either a constitutional or legislative grant. Art. X, secs. 1, 10, Mo. Const.; Art. IX, secs. 16, 23, 25, Mo. Const.; Kansas City v. Case Threshing Machine Co., 87 S.W.2d 198; Taylor v. Dimmitt, 78 S.W.2d 841; St. Louis v. Dreisoerner, 243 Mo. 217, 147 S.W. 998; St. Louis v. Atlantic Quarry Con. Co., 244 Mo. 479; St. Louis v. Kaime, 180 Mo. 322, 78 S.W. 140; St. Louis v. King, 226 Mo. 334, 126 S.W. 495; 6 R.C.L. 23, sec. 12; 19 R.C.L., pp. 728-732, secs. 35-37; 43 C.J. 176; 1 McQuillin Mun. Corps. (2 Ed.), p. 416, sec. 145; 1 Dillon Mun. Corps. (5 Ed.), p. 88, sec. 55. (b) The ordinance in question seeks to exact a license fee with a view to revenue and is therefore an exercise of the taxing power and is not an exercise of the police power to regulate. Kansas City v. Case Threshing Machine Co., 87 S.W.2d 198; City of Ozark v. Hammond, 329 Mo. 1118, 49 S.W.2d 129; Viquesney v. Kansas City, 305 Mo. 488; State ex rel. Wyatt v. Ashbrook, 154 Mo. 375. (c) No constitutional or legislative grant empowers the city of St. Louis to impose an occupational license fee or tax on merchants, graduated in proportion to the number of stores owned or operated. Sec. 10, Art. X, Mo. Const.; Sec. 23, Art. IX, Mo. Const.; Sec. 7596, R.S. 1929; Kansas City v. Case Threshing Machine Co., 87 S.W.2d 198. (d) The city of St. Louis is granted power to impose upon merchants an annual license fee, graduated in proportion to annual sales, and not otherwise. The maxim "expressio unius est exclusio alterius" applies. Sec. 10, Art. X, Mo. Const.; Sec. 23, Art. IX, Mo. Const.; Sec. 7596, R.S. 1929; Kansas City v. Case Threshing Machine Co., 87 S.W.2d 198; St. Louis v. Dreisoerner, 243 Mo. 217, 147 S.W. 998; St. Louis v. Atlantic Quarry Con. Co., 244 Mo. 479; Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 416; Endlich on Interpretation of Statutes, p. 288, sec. 216; 2 Lewis Sutherland Statutory Construction (2 Ed.), pp. 916, 922, secs. 491, 493. (e) The city of St. Louis is granted power to impose a separate license tax upon merchants for each place of business and not otherwise. The power to license multiple places of business is negatived under the maxim "expressio unius est exclusio alterius." Sec. 10097, R.S. 1929. (f) The city of St. Louis has not specifically been granted power to impose a license tax upon the pursuit or business of operating chain stores and such power is therefore expressly withheld by statute. Sec. 7287, R.S. 1929; Kansas City v. Case Threshing Machine Co., 87 S.W.2d 198; Viquesney v. Kansas City, 395 Mo. 488; Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896; Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 416; City of Ozark v. Hammond, 329 Mo. 1118, 49 S.W.2d 129; Nafziger v. Salisbury, 329 Mo. 1014, 48 S.W.2d 563; City of Lebanon v. Joslyn, 58 S.W.2d 289; Pierce City v. Hentschel, 210 S.W. 31; Campbell Baking Co. v. Maryville, 31 F.2d 466; Cripe Baking Co. v. Bethany, 64 F.2d 755. (g) Powers conferred upon a municipality cannot be enlarged by liberal construction. Instead enumeration of powers granted operates to exclude all others and all doubts and uncertainties as to the existence of the power must be resolved against the municipality. Kansas City v. Case Threshing Machine Co., 87 S.W.2d 198; St. Louis v. Dreisoerner, 243 Mo. 217, 147 S.W. 998; Van Eaton v. Sidney, 211 Iowa 986, 231 N.W. 477. (2) The ordinance is unconstitutional and void because: (a) The taxes levied thereunder are not uniform upon the same class of subjects within the territorial limits of the authority levying the tax, in violation of Section 3, Article X, Missouri Constitution, and deny to persons affected thereby the equal protection of the laws, in conflict with the Fourteen Amendment of the United States Constitution XIV Amendment of the U.S. Const.; Sec. 3, Art. X, Mo. Const.; State ex rel. v. Ashbrook, 154 Mo. 375; Nafziger v. Salisbury, 329 Mo. 1014; St. Louis v. Spiegel, 75 Mo. 145, Id., 90 Mo. 587; St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870; Kansas City v. Grush, 151 Mo. 128; Viquesney v. Kansas City, 305 Mo. 488; City of Washington v. Reed, 70 S.W.2d 121; Star Square Auto Sup. Co. v. Gerk, 325 Mo. 968, 30 S.W.2d 447; Reynolds v. Milk Comm., 179 S.E. 507. (b) The tax levied is prohibitory and confiscatory and in reality a protective tariff for the benefit of single store owners, in violation of Sections 4 and 30, Article II, Mo. Const.; Secs. 4, 30, Art. II, Mo. Const.; State ex rel. v. Ashbrook, 154 Mo. 375; Nafziger v. Salisbury, 329 Mo. 1014, 48 S.W.2d 563; City of Washington v. Reed, 70 S.W.2d 121; Springfield v. Jacobs, 101 Mo. App. 339; Natl. Linen Service Corp. v. Milledgeville, 179 S.E. 837; 37 C.J. 192, sec. 42.
Clarence T. Case, David W. Voyles and George L. Stemmler for White Castle System of Eating Houses, F.W. Woolworth Company. S.S. Kresge Company, Scott Stores, Inc., John R. Thompson Company and Mavrakos Candy Company; Louis Mayer, Esq., for Wolff-Wilson Drug Company.
(1) The city of St. Louis does not possess any inherent authority, as a municipal corporation, county, or subdivision of the State, to license, tax, and regulate any occupation. Such authority as it has is a mere delegated power from the General Assembly, to be exercised in conformity with and subject to the Constitution and general laws of the State, with respect to occupations specially named in its charter only. Mo. Const., Art. X, Sec. 1; Art. IX, Secs. 22, 23, 25; R.S. 1929, secs. 7287, 7289, 10100; Kansas City v. Case Threshing Machine Co., 87 S.W.2d 207; City of Ozark v. Hammond, 329 Mo. 1122; Siemens v. Shreve, 317 Mo. 743; St. Louis v. Meyer, 185 Mo. 595; 3 McQuillin, Mun. Corps. (2 Ed.), sec. 1087; 1 Cooley on Taxation (4 Ed.), sec. 125. (2) The principle that no municipal corporation, whether its powers be derived from special charter or general statutes, shall have power to impose a license tax upon any occupation, unless the same is specifically granted in its charter or other statutory enactment is subject to the further limitation that where the General Assembly has for the whole State prescribed a method or measure for graduation of such license tax as to any occupation, such municipal corporations are required to conform their license taxation, as to such occupation, on the same plan as to measure of the tax. R.S. 1929, sec. 7289; In re Sanford, 236 Mo. 684; Ex parte Tarling, 241 S.W. 933; State ex rel. v. Gehner, 8 S.W.2d 1070. (3) The General Assembly has given a definition to the term "merchant" for purposes of taxation, and has also adopted for the whole State a plan or scheme for measuring license taxation for the privilege of pursuing the occupation of "merchant," upon basis of annual sales. R.S. 1929, secs. 7595, 7596, 10075. It has also provided by general law that no county shall levy upon merchants licenses more than one hundred per centum more than the State authorizes for State purposes, under Article 17 of Chapter 59, entitled "Taxation of Merchants." R.S. 1929, secs. 10077, 10100. (4) Merchant has been held to mean dealers of every kind in commercial commodities. Kansas City v. Lorber, 64 Mo. App. 608; Kansas City v. Vindquest, 36 Mo. App. 588; St. Joseph v. Dye, 72 Mo. App. 216. A merchant is one who trafficks or carries on trade; he is a trafficker as well as a trader. 2 McQuillin, Mun. Corps. (2 Ed.), sec. 1115. (5) The city is wholly without authority to extend or widen the scope of its granted powers, by classification, definition, or otherwise. Kansas City v. Case Threshing Machine Co., 87 S.W.2d 203; St. Louis v. Meyer, 185 Mo. 595; City of Ozark v. Hammond, 329 Mo. 1122; Keane v. Strodtman, 18 S.W.2d 898; 3 McQuillin, Mun. Corps. (2 Ed.), sec. 1103; 26 R.C.L., p. 243, sec. 216; Kansas City v. Lorber, 64 Mo. App. 608. (6) The authority of the municipality in the exercise of its police power for the purpose of regulation for general welfare under its charter is limited to such a charge for a license as will bear some reasonable relation to the additional burdens imposed by the business or occupation licensed and the necessary expense involved in police supervision. 3 McQuillin, Mun. Corps. (2 Ed.), sec. 1091, p. 461; Metropolis Theatre Co. v. Chicago, 246 Ill. 20, 92 N.E. 597; Condon v. Forest Park, 278 Ill. 218, 115 N.E. 825; North Hudson, etc. Co. v. Hoboken, 41 N.J.L. 81. (7) The power to tax for revenue is not to be implied from a grant of authority to license and regulate, and an ordinance, the sole purpose of which is revenue, cannot be upheld unless under the general power of taxation. St. Charles v. Elsner, 155 Mo. 678; St. Louis v. Boatmen's Ins. Co., 47 Mo. 154; 3 McQuillin, Mun. Corps. (2 Ed.), secs. 1087, 1089; Kansas City v. Corrigan, 18 Mo. App. 214. (8) This anti-chain store ordinance seeks to exclude complainants from the right to sell goods, wares and merchandise, and deprive them of their vested rights and privileges under the statutes and ordinances, as licensed merchants. Thereby it denies to them the equal protection of the laws, and deprives them of property without due process, in direct violation of the Fifth and Fourteenth Amendments, Constitution of the United States. Gulf. Colorado Santa Fe Ry. Co. v. Ellis, 65 U.S. 148, 41 L.Ed. 669; McFarland v. American Sugar Ref. Co., 241 U.S. 78, 60 L.Ed. 904; Burns Baking Co. v. Bryan, 264 U.S. 504, 68 L.Ed. 826. (9) Said ordinance exacts unreasonable, arbitrary, excessive and confiscatory license fees for revenue in the guise of the exercise of a police power, in a manner and upon a basis of graduation beyond any authority granted to the city of St. Louis by the State, and therein denies to complainants their rights to due process under Article II, Section 30, Constitution of Missouri. In re Funks, 157 Mo. 131; State v. Julow, 129 Mo. 177; State ex rel. v. Ashbrook, 154 Mo. 395; City v. Evarff, 301 Mo. 284; United States v. Lee, 106 U.S. 196, 27 L.Ed. 182; McFarland v. Am. Sugar Ref. Co., 241 U.S. 78, 60 L.Ed. 904.
Salkey Jones for Walgreen Drug Stores, Inc., and Thrifty Drug Stores, Inc.
The Ordinance No. 39619 of the city of St. Louis which attempts to levy a tax on persons operating more than one store, which tax is graduated on the basis of the number of stores operated, is void and unenforceable. Sec. 7596, R.S. 1929; Kansas City, Mo., v. Case Threshing Mach. Co., 87 S.W.2d 195.
This case presents the validity and constitutionality, State and Federal, of a chain store license fee ordinance of the city of St. Louis.
Upon the overruling of the city's demurrers to the original and intervening petitions of the merchants, the city refused to plead further and appealed from the judgment enjoining the enforcement of said ordinance.
Ordinance No. 39619 of the city of St. Louis, the ordinance in question, briefly stated, makes it unlawful for any person, etc., to operate branch or chain stores within the city of St. Louis without a license, defines "branch or chain" stores and "branch or chain store" operators, and exacts from such operators graduated multiple stores annual license fees, exempting therefrom persons, etc., whose principal business is the sale of petroleum products from bulk plants or service stations. The provisions of said ordinance, in so far as deemed essential to a determination of this appeal, title omitted, follow:
"Section One. From and after the first day of July, nineteen hundred thirty-two, it shall be unlawful for any person, firm, corporation, copartnership or association, either foreign or domestic, to establish, open, maintain, or operate any branch or chain store within this City without having obtained a license so to do from the License Collector of the City of St. Louis.
"Section Two. The term 'branch or chain store,' as used in this ordinance, shall be construed to mean and include any store or stores, or any mercantile establishment or establishments in excess of one which are owned, operated, maintained or controlled by the same person, firm, or corporation, copartnership or association, either domestic or foreign, in which goods, wares or merchandise of any kind are sold at retail.
"Section Three. Every person, firm, corporation, copartnership, or association establishing, opening, maintaining or operating within this City, under the same general management, supervision, ownership or control, two or more stores or mercantile establishments where any goods, wares, or merchandise are sold or offered for sale at retail, shall be deemed a branch or chain store operator, and for such stores established, opened, maintained or operated in excess of one shall pay the license fees hereinafter prescribed, for the privilege of establishing, opening, maintaining or operating each such store or mercantile establishment in excess of one.
"The license fees herein prescribed shall, except as herein otherwise provided, be paid annually, and shall be, in addition to the license fees and ad valorem taxes prescribed in the merchants' license ordinance of this City now in effect, or as the same may hereafter be amended. The license fees to be paid by operators of branch or chain stores shall be as follows:
"One. Upon two stores or more, but not to exceed five stores, the annual license fee shall be twenty-five dollars for each such store in excess of one.
"Two. Upon six stores or more, but not to exceed ten stores, the annual license fee shall be fifty dollars for each such store in excess of five.
"Three. Upon eleven stores or more, but not to exceed fifteen stores, the annual license fee shall be one hundred dollars for each such store in excess of ten.
"Four. Upon sixteen stores or more, but not to exceed twenty stores, the annual license fee shall be one hundred fifty dollars for each such store in excess of fifteen.
"Five. Upon twenty-one stores or more, but not to exceed twenty-five stores, the annual license fee shall be two hundred dollars for each such store in excess of twenty.
"Six. Upon each store in excess of twenty-five, the annual license fee shall be two hundred fifty dollars for each such store in excess of twenty-five.
"The license fees herein imposed shall not apply to persons, firms, corporations, copartnerships, or associations whose principal business is that of the sale of petroleum products from bulk plants or service stations; provided, however, that said business shall be exempt from the provisions hereof only so long as the same are taxed for municipal purposes under the existing gasoline sales tax ordinance or amendments thereto."
Other sections of the ordinance cover the application for license (Sec. 4), its examination by the license collector, etc., the issuance of the license and its display (Sec. 5), the expiration of the license on June 30 following date of issuance, etc. (Sec. 6), issuance of licenses subsequent to January 1st for one-half the full rate (Sec. 7), non-assignability of the license (Sec. 8), the forestalling of possible efforts to evade the license fees through schemes of business organization, corporate or otherwise (Sec. 9), penalties (Sec. 10), saving (Sec. 11) and emergency (Sec. 12) clauses.
The petitioner and intervenors are the following corporations: The Kroger Grocery Baking Company; Great Atlantic and Pacific Tea Company of America; United Cigar Stores Company of America; John R. Thompson Company; White Castle System of Eating Houses Corp.; F.W. Woolworth Company; S.S. Kresge Company; Wolff-Wilson Drug Company; Scott Stores, Inc.; Mavrakos Candy Company; City Ice Fuel Company; Moss Lowenhaupt Cigar Company; Walgreen Drug Stores; Thrifty Drug Stores, Inc. Each operates more than one store in the city of St. Louis, and the corporate names sufficiently indicate the nature of the several businesses transacted.
Numerous attacks are made against the validity, constitutional and otherwise, of Ordinance No. 39619 in the petition (embracing more than sixty pages of the printed abstract) of the Kroger Grocery Baking Company, a corporation, instituting the action as a class suit on behalf of said plaintiff and others similarly situated, and the petitions of the intervenors, some of said intervenors presenting additional issues. We deem it nonessential to state, much more nonessential to discuss, the many contentions presented, and shall limit this review to such issue or issues as may rule the case.
Ordinance No. 39619 makes no attempt to regulate the business of the merchants. It seeks only the exaction of a license for the privilege of conducting business through chain stores. The license issues upon the payment of the fee. Upon its face it is a revenue, not a regulatory, measure; and an exercise of the taxing power, a high governmental function, in invitum in nature. [Kansas City v. J.I. Case T.M. Co., 337 Mo. 913, 919 (1), 87 S.W.2d 195, 198(2); City of Ozark v. Hammond, 329 Mo. 1118, 1122, 49 S.W.2d 129, 131(1); Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 441 (I), 32 S.W.2d 281, 282(I); Viquesney v. Kansas City, 305 Mo. 488, 497 (II), 266 S.W. 700, 702 (4); State ex rel. v. Ashbrook, 154 Mo. 375, 385, 55 S.W. 627, 629.] For instance. As we read the abstract of the intervening petition of the White Castle corporation, it pays an annual merchant's license fee, based upon a seating capacity of less than twenty in each of its sixteen restaurants, under the merchants' license ordinance of the city of St. Louis, of $10 each, or $160, and under said Ordinance No. 39619 would pay an annual chain store license fee of $1,000 additional, a total of $1160, for the privilege of serving food to the citizens of St. Louis at sixteen different locations in said city. Clearly, Ordinance No. 39619 is a revenue measure.
It is settled that any exercise by the city of St. Louis, although operating under a home-rule charter, of the high governmental function here under review must be in harmony with and subject to the Constitution and laws of the State. [See Missouri Constitution, Art. IX, Secs. 20, 22, 23 and 25; Art X, Secs. 1 and 10.] The authorities are reviewed and the subject is developed historically in Kansas City v. J.I. Case T.M. Co., 337 Mo. 913, 920-928, 87 S.W.2d 195, 198(3-12). The city of St. Louis, under Article IX, Sections 20-25, of the Missouri Constitution was authorized to extend its corporate boundaries and frame and adopt a charter for its government; but such charter, as well as amendments thereto, was required, in so far as here involved, under said Sections 20, 22 and 23, to "be in harmony with and subject to the Constitution and laws of Missouri." [Consult Art. IX, Secs. 16 and 17, Ibid.] Said Section 25 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." Sections 1 and 10, respectively, of Article X of the Constitution of Missouri provide: "The taxing power may be exercised by the General Assembly for State purposes, and by counties and other municipal corporations, under authority granted to them by the General Assembly, for county and other corporate purposes." "The General Assembly shall not impose taxes upon counties, cities, towns or other municipal corporations or upon the inhabitants or property thereof, for county, city, town or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes." Paraphrasing the conclusion in State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 895, 2 S.W.2d 713, 721, a banc case ruling upon the authority of the General Assembly over the city of St. Louis in the matter of establishing and maintaining public libraries by taxation: If Sections 20, 22, 23, and 25 of Article IX, mean anything, they mean "that St. Louis, in the matter of imposing taxes is subject to the same control as other cities are." [See, also, among others, Ex parte Tarling (Mo.), 241 S.W. 929, 933(4); St. Louis v. Dreisoener, 243 Mo. 217, 223, 147 S.W. 998, 1000(2); St. Louis v. Kaime, 180 Mo. 309, 322, 79 S.W. 140, 143; St. Louis v. Atlantic Q. C. Co., 244 Mo. 479, 484, 148 S.W. 948, 950; St. Louis v. King, 226 Mo. 334, 350, 126 S.W. 495, 499.]
The issues turn on, not should or could but, do the laws of the State of Missouri authorize the city of St. Louis to exact the tax here involved. We are not concerned with the motives attending the enactment of the ordinance. It is the tendency of commerce to magnify the importance of the quantity of trade; of society (we use the term in its broad sense) to magnify the importance of life, liberty, human happiness and the quality of men. Motives attending the enactment of legislation in the furtherance of either objective may be most creditable and when on proposed legislation the two interests conflict, it is for the legislative branch of government, acting within its proper scope, not the judiciary, to choose between the conflicting values and determine the policy of the law. We deal only with the power of the city of St. Louis, not the expediency, wisdom or justness of the license imposed.
Ordinance No. 39619 graduates the license fee according to the number of stores. The merchants contend any graduated license fees exacted by the city of St. Louis must be graduated in proportion to annual sales, relying on Section 7596, Revised Statutes 1929 (Mo. Stat. Ann., p. 6012). We think this issue ruled by the full and learned discussion of HYDE, C., in Kansas City v. J.I. Case T.M. Co., 337 Mo. 913, 928 et seq., 87 S.W.2d 195, 204 et seq., a recent decision of this court en banc holding an ordinance of the city of Kansas City exacting a license, graduated according to floor space occupied instead of in proportion to annual sales, of implement dealers beyond the authority conferred upon cities having more than three hundred thousand inhabitants.
Section 7596, supra, as originally enacted constituted that portion of Section 1 set out in italics infra of an Act of the Thirtieth General Assembly [Laws 1879, p. 141] entitled: "An act classifying property for the purpose of taxation." Said section read:
"Section 1. For the purpose of State, county and municipal taxation, merchandise held by merchants, and the raw material, merchandise, finished products, tools, machinery, and appliances used or kept on hand by manufacturers, shall constitute a class separate and distinct by itself. [1] And all cities in this State, having a population of over three hundred thousand inhabitants, are authorized to levy for local purposes, a less ad valorem rate of taxation, than that levied by them on real estate or other property for the same purpose; and said reduction may, from time to time, be arranged to apply on both or either the tax rate for payments of valid indebtedness, or the tax rate for city purposes; [2] and all such cities, for city and local purposes, are hereby authorized to license, tax and regulate the occupation of merchants and manufacturers; and may graduate the amount of annual license imposed upon a merchant or manufacturer in proportion to the sales made by such merchant or manufacturer during the year next preceding any fixed date. [3]" Sections 2 and 3 respectively, of said act carried emergency and repeal clauses. The portions of said section immediately preceding the numerals "1," "2" and "3," respectively, appear in the Revised Statutes of 1879 as Sections 6909, 6910, and 6911, of Article XI, "Taxation of Merchants and Manufacturers," of Chapter 145, "Of the Assessment and Collection of the Revenue;" and are now, respectively, Section 9748, Revised Statutes 1929 (Mo. Stat. Ann., p. 7869, of Art. 1), "What Property Taxable and Where," of Chapter 59, "Taxation and Revenue," and Sections 7595 and 7596, Revised Statutes 1929 (Mo. Stat. Ann., p. 6012, of Art. 26), "Laws Applicable to Cities having Five Hundred Thousand Inhabitants or over," of Chapter 38, "Municipal Corporations." This division and shifting by the revision committees did not have the force and effect of changing the law. [The history of the sections is developed in the Kansas City case, supra, 337 Mo. l.c. 929, 87 S.W.2d l.c. 204.]
Summarizing the reasons underlying Kansas City v. J.I. Case T.M. Co., supra, on the instant issue, they are to the effect, in so far as material here, that said Act of 1879 conferred a permissive, not mandatory, power upon certain municipalities to impose a graduated license upon merchants; but (considering the word "may" in said clause authorizing a graduated license as equivalent to "must" or "shall" [Ibid, 337 Mo. l.c. 931 (8), 87 S.W.2d l.c. 205 (15-17)] any attempt to exercise the authority there conferred to exact graduated license fees must be exercised in conformity with the authority delegated and graduated in proportion to the annual sales [Ibid, 337 Mo. l.c. 930(7), 87 S.W.2d l.c. 205 (13, 14), and authorities cited; Keane v. Strodtman (Banc), 323 Mo. 161, 167 (II), 18 S.W.2d 896, 898 (II) (quoting Dougherty v. Excelsior Springs, 110 Mo. App. 623, 626, 85 S.W. 112, 113, to the effect that when special powers are conferred, or special methods are prescribed for the exercise of a power, the exercise of such power is within the maxim expressio unius est exclusio alterius, and "forbids and renders nugatory the doing of the thing specified except in the particular way pointed out"); State ex rel. v. Clifford, 228 Mo. 194, 207, 128 S.W. 755, 758].
It follows that the city of St. Louis transcended the scope of the authority conferred upon it by imposing, under Ordinance No. 39619, license fees, graduated according to the number of stores operated, on merchants operating more than one store, said license not being graduated in proportion to the annual sales made by the merchants subject to the license.
There is little occasion for mentioning cases from this or other jurisdictions not ruled by like statutory or constitutional provisions. Automobile Gasoline Company v. St. Louis (Div. 2), 326 Mo. 435, 32 S.W.2d 281; Viquesney v. Kansas City (Banc), 305 Mo. 488, 266 S.W. 700; Ex parte Asotsky (Banc), 319 Mo. 810, 5 S.W.2d 22, Missouri cases stressed by the city, are sufficiently differentiated from the instant case by the observations in Kansas City v. J.I. Case T.M. Co., 337 Mo. l.c. 392, 87 S.W.2d l.c. 206(21). See also the comment on the Viquesney case in Siemens v. Shreeve (Banc), 317 Mo. 736, 744, 296 S.W. 415, 418(11), evidently made in connection with the statement in the Viquesney case (305 Mo. l.c. 501, 266 S.W. l.c. 704) that no contention was presented that the charter provision authorizing a division of the various occupations etc., into different classes "was unconstitutional" or "in conflict with Sec. 8702, R.S. 1919;" although the Asotsky case, 319 Mo. l.c. 819, 5 S.W.2d l.c. 25, states that the Viquesney case held the gasoline sales license ordinance "did not violate Section 8702, Revised Statutes 1919."
What we have said disposes of the appeal and renders any discussion of other interesting issues presented in the able briefs of counsel for the respective litigants unnecessary.
The judgment is affirmed. Cooley and Westhues, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.