City of Joplin v. Leckie

78 Mo. App. 8, 1899 Mo. App. LEXIS 2

• Court: Missouri Court of Appeals
• Decided: January 2, 1899
• Status: Published

Opinion

SMITH, P. J.

The defendant was prosecuted and convicted on an information which charged him with violating section 1 of ordinance number 902 of plaintiff city by “then and there unlawfully and willfully carrying on and engaging in the occupation, business and trade of operating a foundry and selling miners’ supplies at a certain stand and place occupied by him for that purpose,” etc. The ordinance charged in the information to have been violated provided that, “an occupation tax should be collected on foundries and machine shops of forty dollars per annum, and on dealers in miners’ supplies of thirty-two dollars per annum.” It further provided a penalty for engaging in any business, trade or occupation without first having paid such occupation tax. The defendant assails the judgment on the ground that the charter of the plaintiff city did not confer upon it the power to pass the ordinance on which the information was based.

Municipal corporation: cities of the third class: occupation tax: manufacturing. By reference to section 10 of the act of April 19, 1893 —Session Acts 1893, page 90 — it will be seen that cities of the third class, to which class the plaintiff city belongs, have power to levy and collect a license tax on several kinds of business trades and avocations therein specified. “Manufacturing and other corporations or institutions” are included in such specifications. Whether or not the act of the council of the plaintiff city in passing the ordinance in question was in excess of its power of course depends upon the construction that is to be given to the words of the charter first quoted. It is apparent from the reading of this collocation of words that the word “corporation” is implied after that of “manufacturlug” so that we are authorized to interpolate that word into such collocation so that it should be read that the city shall have power to levy an occupation tax on “manufacturing corporations and other corporations or institutions.” When these words are considered in their relation to each other, their meaning becomes involved in so much doubt and uncertainty that it becomes quite difficult to determine just exactly what power the legislature intended thereby to confer.

It is a well recognized rule of the law that the meaning of a word is or may be known by the accompanying words. There is also a further kindred rule that where several particulars are named, followed by a more generic term, it is considered, that the more generic term intends only other things ejusdem generis, or of the like kind. St. Louis v. Laughlin, 49 Mo. 559; Commonwealth v. Dejardin, 126 Mass. 46; Harlow v. Tufts, 4 Cush. 448. The words “manufacturing corporations” are general and not specific. No particular kind of manufacturing corporation is thereby specified. They are broad and comprehensive enough in their signification to include manufacturing corporations of every kind whatsoever. Their sense and meaning is unrestrained and unaffected by the succeeding words “other corporations or institutions” or “other manufacturing corporations or institutions.” If several kinds of manufacturing corporations had been specified in that part of the section of the charter which precedes the words “other corporations or institutions,” then the principle of the rule of ejusdem generis would be applicable, but since there are no such antecedent specifications the application of the rule just referred to can not be invoked. Nor is the other rule of noscitur a sociis helpful to us in determining the meaning of the words of the grant. It seems to us that, after all, the words “other corporations or institutions” do not embrace or comprehend in their signification any class of corporations that do not fall within the previous designation of “ manufacturing corporations. ” The term “institution” must be construed as if it read “manufacturing institution.” It is interconvertible with that of “manufacturing corporation,” and has no meaning or signification different from that of the latter term.

It seems clear to us that the words of the grant do not authorize a city of the third class to levy a tax on natural persons engaged in the manufacturing business. They only authorize the imposition of such tax on corporate entities engaged in manufacturing. No good reason is seen for this discrimination, yet we are justified by the expression of the legislature in concluding that it was so intended.

_: construction of charter: powers: reasonable doubt. It is a general and undisputed proposition of law, say the authorities, that a municipal corporation possesses and can exercise the following powers and none others: Eirst, those granted in express words; second, those necessary or fairly implied in or incident to tlie power expressly granted, and, third, those essential to the declared objects and purposes of the corporation, not simply convenient and indispensable. And the authorities are to the further effect that where there is any fair and reasonable doubt concerning the existence of the power it is resolved by the eourts against the corporation. Knapp v. Kansas City, 48 Mo. App. 485, and the numerous authorities there cited. We, therefore, conclude from the foregoing considerations that the act of the plaintiff city in passing the ordinance levying an occupation tax on natural persons engaged in the manufacturing business was without the power conferred by its charter, and that, therefore, the conviction of the defendant for the violation of such ordinance can not be upheld.

-: corporation tax: merchant evidence. By recurring to the information it will be seen that the defendant was also charged with selling miners' supplies. The defendant could sell the products of his foundry without violating any ordinance of the city. There is no evidence that he dealt as a merchant. He did not buy and sell for a profit or if he did there is no evidence of the fact presented by the abstract of the record. It becomes therefore unnecessary to determine whether one who sells miners' supplies is a merchant since, as has been stated, there is no evidence that the defendant did sell such supplies, or if so that the same were other than those produced at his foundry.

The judgment must be reversed.

All concur.