Wonner v. City of Carterville

125 S.W. 861, 142 Mo. App. 120, 1910 Mo. App. LEXIS 160

• Court: Missouri Court of Appeals
• Decided: February 7, 1910
• Status: Published

Opinion

NIXON, P. J.

(After stating the facts). — I. It is claimed by respondents as a reason in support of the judgment of the trial court that they were not subject to the license tax levied because their business was not within the territorial limits of the city of Carterville.

It is true that, according to the terms of the ordinance, the trades, businesses and avocations subject to the license, must be carried on within the city of Carter-ville, and the ordinance does not authorize the levy of any tax on any trade or business outside of the city. It goes without saying that if the ordinance had undertaken to levy a license tax on the business of respondents transacted outside the city, it would have been wholly ultra vires. And since it is true that the bakeries of respondents were in Joplin and Webb City and outside the limits of the city of Carterville, their bakeries as such could not consequently have been made subject to a license tax levied by the city of Carterville as a bakery is a place where bakery products are made and sold. The city authorities made no attempt to enforce their ordinances against the respondents because they did not take out a license on their bakeries. The ordinances were leveled against the use of the bakery wagons on the streets of the city; and although these wagons belonged to the respondents, as well as the horses and entire outfit, and although the drivers were employed by the respondents, still the business of the sale of the products of respondents’ bakeries was carried on within the city of Carterville, and according to the admissions in the record, these wagons were used in the business of plying the trade on the streets of Carterville, making regular trips loaded with bakery products to be sold from these wagons to customers or dealers, regularly traveling from house to house, selling and taking orders.

We do not doubt that under such circumstances, these wagons were being run in the city of Carterville for the purpose of carrying on the business of respondents within said city, no matter where the owners may have resided. The running of these wagons under the circumstances was within the scope and purview of the ordinances of the city of Carterville. It would seem that express provision was made to prevent the evasion of the ordinances by section 311 providing that no person, whether as owner, agent, servant or employee should directly or indirectly assist in any manner in carrying on or exercising any business without a license for which a license was required. The drivers and employees of respondents were engaged in driving these unlicensed wagons, and whether or not they could take out a license in their own name is wholly immaterial, provided that the city had authority under its charter to levy the tax on the hakery wagons.

IÍ. The respondents have challenged the authority of the city under its charter to levy a tax on their wagons.

The statute, R. S. 1899, section 5979, provides that “cities of the fourth class (of which the city of Carter-ville is one) shall have and exercise exclusive cohtrol over all streets, alleys, - avenues and public highways within the city limits of such city.” And section 5978 provides that “The mayor and board of aldermen shall have power and authority to regulate and to license, and to levy and collect a license tax on . . . merchants of all kinds, grocers, . . . butchers, . . . hackney-carriages, omnibuses, carts, drays, transfer and job wagons, ice wagons, and all other vehicles. . . and all other businesses, trades and avocations- whatever.

The point is made at the outset by respondents that these statutes confer no power upon the city to levy and collect a license tax on bakery wagons, and the rule- is invoked that where particular words of description are used (as “hackney-carriages, omnibuses, carts, drays, transfer and job wagons, ice wagons,” etc.) followed by general words (such as “and all other vehicles”) the latter are limited in their meaning so as to embrace only a class of things indicated by the particular words, and that bakery wagons do not belong to the same class as the particular wagons, carts, etc., enumerated in the statute; that the general words follow words of description -and do not enlarge the prior particular words, but are restricted in their application to classes similar to those specifically .designated.

The rule unquestionably is that where general words follow particular ones, the courts will construe them as applicable only to persons or things of the same general character or class, and cannot include things wholly different from those specifically mentioned. [St. Louis v. Laughlin, 49 Mo. 559; State ex rel. v. Bersch, 83 Mo. App. 657; State v. Rosenblatt, 185 Mo. 114, 83 S. W. 975.]

The question is, Are bakery wagons ejusdem generis with the other vehicles enumerated' in the statute? We think that ice wagons and bakery wagons fall within the same general class. They handle business in the same manner, go over the same routes in the same way soliciting business or filling orders, and are in every essential respect similar. The rule of ejusdem generis is meant to carry out, not to defeat the legislative intent. When it can be seen that the particular word by which the general word is followed was inserted, not to give a coloring to the general word, but for a distinct object, then, to carry out the purpose of the statute, the general word ought to govern. It. is a mistake to allow the rule to pervert the construction. [State v. Broderick, 7 Mo. App. 19, 20.]

This rule of interpretation of statutes has received many applications. In the case of St. Louis v. Woodruff, 71 Mo. 92, the charter gave the city power “to license, tax and regulate street railroad cars, hackney-carriages, omnibuses, carts, drays, and other vehicles (It will be noticed that the class of vehicles here mentioned is almost identical with those listed in the statute governing cities of the fourth class.) The defendant in that case was the driver of a street-sprinkling cart without a license as required by an ordinance, sprinkling the streets in front of the property of owners who contracted to pay him a certain sum for such service. The ordinance levied a license tax “upon all public vehicles . . . for trade or traffic or for any other purpose.” The vehicles were to be taxed according to class: “On each two-horse wagon, not before mentioned, ten dollars.” It was held that the sprinkling cart fell within the general classification. The court say: “The language (of the statute) is almost comprehensive enough to embrace wheelbarrows,” referring to the general clause in the statute, “and other vehicles.”

In the case of St. Louis v. Herthel, 88 Mo. 128, the charter gave the city power “to license, tax and regulate lawyers, doctors, doctoresses, undertakers, dentists, auctioneers, . . . (about fifty other pursuits, avocations and trades are specified) and all other business, trades, avocations or professions whatever.” Architects, though not named, were held ejusdem generis with lawyers, doctors, dentists, etc., as exercising a profession of a technical character.

In the case of Kansas City v. Vindquest, 36 Mo. App. 581, the statute specified auctioneers, grocers, retailers, merchants, etc., and ice wagons. It was held that an ice dealer fell within the term “merchant,” and the fact that “ice wagons” were specified did not thereby exclude ice dealers, as some ice dealers have no wagons.

The power of a city of the fourth class to tax bakery wagons is beyond all doubt, and hence the case of Independence v. Cleveland, 167 Mo. 381, 67 S. W. 216, and others cited by respondents, decided upon a different state of facts, are not applicable to this case.

III. But it is further contended that the city had no rigH to exact a license tax of vehicles of non-resident businesses, and that the city could not require a tax on wagons used in a business when that business could not be required to pay a license charge. In other words, that the right to tax the wagon is dependent upon the right to tax the business.

The ordinance does provide that it shall be “unlawful for any person, company or corporation to exercise, carry on or engage in any of the following businesses, trades, avocations, or occupations, in the city of Carterville, Missouri, without first having obtained a license therefor from said city, and the charge of such license shall be as follows:

“Vehicles (for each vehicle or wagon)

“Bakery wagon, $10.00 per annum.”

It is true that the bread and other bakery products were made outside the city of Carterville by respondents. But it was sold within the city by means of wagons and drivers going about the streets delivering bread and taking orders, and the respondents were therefore “doing business in the town of Carterville” within the meaning of the terms of the ordinances. We do hot understand that it is essential that respondents should actually reside within the city of Carterville and maintain a place of business therein and transact the affairs of life within the confines of the town in order to authorize this license tax upon their vehicles. We hold that when respondents undertook to sell their products in Carterville and compete with the local bakers by running bakery wagons, they subjected their wagons to the license tax in question. The case of Independence v. Cleveland, supra, relied upon by respondents, therefore, does not govern this case for reasons already stated. In that case, there was no authority whatever in the charter — express or implied — giving the city power to license the business itself, and to have allowed the city to license the agent would have been to impose upon the principal indirectly a burden which could not, under the terms of the charter, be imposed directly. That is not this case, as there was nothing in the charter to prevent the taxing of the bakery business, provided, of course, it was located in the city, while in the case of Independence v. Cleveland the business could not have been taxed even if located within the corporation.

The case at bar is more like that of Mason v. Mayor, etc., of the city of Cumberland (Md. 1901), 48 Atl. 136. The statute there gave the city the right “to license, tax and regulate wheeled vehicles.” The ordinance provided, among other things, that it should be unlawful for any person, company or corporation to drive or use over the streets any milk wagon, etc., without first having obtained a license. Appellant lived outside the town of Cumberland where he kept his cows, but sold milk in a wheeled vehicle about the streets of the town. It was held that the statute conferred the general power to exact a license from appellant and did not restrict this power in such manner as that it should be confined to those who resided within the limits of the corporation. The court say: “No unjust or unfair discrimination is made in exacting of all enjoying the same privilege (in this instance the use of the streets) that they should be subject alike to a regulation which imposes some burden connected with the privilege. . . . (Quoting from the case of Tomlinson v. Indianapolis, 144 Ind. 142, 43 N. E. 9, 36 L. R. A. 413.) ‘The only contention, in truth, which can be plausibly urged against the ordinance, is that it charges those who 'drive upon the streets, but live outside the city limits, the same license fees charged against those residing in the city, and we do not think the ordinance can for that reason be held invalid.’ The common council, as we have seen, .is given by the statute power to pass ordinances to regulate the use of the streets and alleys by vehicles. This provision would, of itself, be sufficient to sustain the ordinance. The power to regulate implies the power to license and to exact a reasonable fee for such license.”

In the case of Memphis v. Battaile, 8 Heisk. (Tenn.) 524, 24 Am. Rep. 285, the defendants operated a rolling mill for the manufacture of bar iron near Memphis, but outside the city limits. They also lived outside the city, and kept drays at the mill which were used in the free delivery of their products to their customers and merchants within the city and, for the purpose of picking up scrap iron about the city. The charter gave the city power “to license and regulate, drays, carts, hackney-coaches, and other vehicles used in the city.” The ordinance provided, among other things, that every owner of a wagon or other vehicle kept or used for free delivery of goods to customers or others in the city should pay for each vehicle ten dollars per annum. It was held that the words “other vehicles” in the ordinances included the vehicle commonly called a “dray,” though it was not specifically named. The court say: “It seems to us that the common sense of the proposition must he the law of it, and without further discussion, wie hold that a dray, being a vehicle other than the vehicles named in the ordinances, is necessarily embraced within its provisions and meaning, and that there is nothing in the section in question, or in the phraseology of the other sections referred to, which forbids this reasonable and material construction of unambiguous words. But the defendants insist that they are not living within the corporate limits, and their drays and the animals that draw them are kept outside the city, except when plying their avocation within it, and, therefore, they are not liable. Wa cannot yield to this argument. The privilege is exercised within the city along its streets, and this is the daily business of the draymen and their drays. The privilege taxed is the use of the drays in the city, and it can certainly make no- difference where the beneficiary resides.’?

We take it — and some of the cases herein cited are of this character — that a person may be conducting a business, trade or avocation, which does not require a license in itself, but yet in connection therewith, or incident thereto, he may be using a vehicle upon the streets of a city for which a license tax may be imposed. In the case of Joplin v. Lechie, 78 Mo. App. 8, it is held that unincorporated manufacturing institutions cannot be subjected to a license tax. Conceding that to be the law, and referring to the charter of cities of the third class, we find that “ice wagons’? are in terms named as an object of such tax. Could it be said that because individuals may be operating an ice plant (wbicb is a manufacturing institution, — Attorney General ex rel. v. Lorman, 59 Mich. 157) that the wagons which would deliver the product of the factory could not be required to pay for the use of the streets of a city in which the wagons should operate?

In the case of St. Louis v. Green, 7 Mo. App. 468 (affirmed by the Supreme Court, 70 Mo. 562), the Court of Appeals say: “That a municipal corporation may have authority to tax vehicles belonging to the citizens of the corporation, or to any person carrying on a business within its limits, in the sense that such a corporation may tax the use of the vehicle, has been repeatedly held.”

In the case at bar, there is no effort to tax the business of the respondents, but their vehicles only, which, the evidence shows, and their petition admits, were being used in the city of Carterville continuously and not incidentally.

Our attention has been directed by respondents to the case of St. Charles v. Nolle, 51 Mo. 122. There is no essential analogy between that case and the present one and therefore the law of that case is not controlling in this. The ordinance Of the city of St. Charles undertook to tax occupations outside the city for the benefit of those living within the city, and it was held that its charter gave it no authority, express or implied, to impose a license tax on wagons engaged in hauling outside the city.

The ordinances of the city of Carterville make no such provision, and the prosecutions sought to be restrained are not for carrying on a business and occupation inside the city. A license fee is not asked of them. The license tax in this case was levied only on respondents’ vehicles, which, they admit, were being constantly used by them for regular business purposes in the city of Carterville. The respondents have no just grounds for complaint as they have paid nothing to improve the streets and yet are using them day after day in their business the same as the residents. To relieve these respondents from the payment of the license tax in question would be to sanction an unjust discrimination against the resident citizens of Carterville and in favor of these non-resident competitors. The effect would be to give the non-residents the benefit of a constant use of the streets and all the advantages of the city trade and at the same time relieve them entirely of the burden of city taxation which its own citizens are compelled to bear to maintain the streets and support the city government of which the respondents are beneficiaries.

It is ordered that the judgment be reversed and the cause remanded, and the circuit court is directed to dissolve the injunction and dismiss the respondents’ bill at their costs.

Goto, J., concurs. Gray, J., not sitting.