City of Kansas v. Corrigan , 1885 Mo. App. LEXIS 323 ( 1885 )

Opinion by

Ham, J.

1. In 1875, for the first time, the legislature' granted to the plaintiff power “to license, tax and regulate * * * street railroad cars.”

The position assumed by' defendant in the court below, and upheld by that court, is still maintained by him here, and is, that when the ordinance of March 27, 1869, was passed and accepted by said railroad company, .and it constructed its road thereunder, said ordinance became a contract between it and the plaintiff, so that no new condition, no condition other than the conditions in •said ordinance mentioned, could be imposed upon it as a condition precedent to its right to operate its road ; and that the ordinance of May 16, 1882, with a violation of which defendant is charged, imposes such a new condition upon said railroad company, and, therefore, is null and void.

In opposition to defendant’s position the plaintiff contends that the ordinance of May 16, 1882, was enacted by the plaintiff, under her authority to license, tax and regulate street railroad cars, as a police regulation ; and that, even if the plaintiff can be held by the ordinance of March 27, 1869, to have intended to part with her police power to regulate street railroads and their operations in her limits, she did not have the right to contract away the exercise of such power, and that the said ordinance is to that extent null and void.

If the plaintiff is right in denominating the license fee a police regulation, clearly the imposition of it by the City of Kansas is valid, whatever may have been her intention in enacting the ordinance of 1869. But we are of opinion that the license fee is a tax and not a police regulation. A license fee, when imposed for the main purpose of revenue is not a police regulation, but it is a tax and can only be upheld under the power of taxation. The City of St. Louis v. Siegel, 75 Mo. 146, and cases therein cited. The evident and only purpose of the imposition of the license in this case, is revenue. Same case and authorities; Mayor, etc., v. Second Av. R. R. Co., 32 N. Y. 273.

2. Admitting, for argument, as defendant contends, that the plaintiff intended, by the ordinance of 1869, to authorize the said railroad company to build and operate-its railroad on the conditions alone therein mentioned, and that plaintiff intended to part with the power to impose such a license fee as the one in suit, which we hold to be-a tax, imposed under the power to tax street railroad cars, granted to the plaintiff for the first time in 1875; the question presents itself, had the plaintiff the power so-to do ?

It is clear that the plaintiff had no'power to impose a tax upon street railroad cars until the legislature conferred upon her snch power “in clear and unambiguous terms.” City of St. Louis v. Laughlin, 49 Mo. 562; City of St. Louis v. Clemens, Jr., 43 Mo. 494.

This power was thus conferred upon plaintiff in 1875. In 1869, then, she had no power to impose snch tax. Without the power to impose such tax how can it be said that she had the authority to part by contract with snch power ? It seems clear to us that the plaintiff in 1869, in the absence of all power to impose the .tax, could not legally part by contract with the right to exercise snch power, should it be conferred upon her in the future by the legislature. If- the right to impose a tax must be clearly delegated to a city, it would seem to follow that, where there is no existing right to impose a tax, in the absence of all power expressed or implied upon the subject, she could not validly contract never in the future to exercise snch a right, should the legislature grant it to her.

Under the constitution of 1865 a tax upon occupations and professions had to be uniform and fall alike upon all persons engaged in the same business. City of St. Louis v. Spiegel, 75 Mo. 147; American Union Express Co. v. St. Joseph, 66 Mo. 681.

How, then, if plaintiff had had, in 1869, the power to impose the tax in suit, could she have legally contracted not to exercise said power as to said railway company’s ears? The tax had to be imposed upon all alike. The-plaintiff could not impose the tax upon one and not upon another company engaged in the same business. The power to impose such a tax in any other than in an uniform manner the legislature itself did not possess, and, therefore, could not have granted to plaintiff. Hiving to the ordinance of 1869 the construction'asked by defendant, we hold that it was null and void in so far as snch construction forms a part of it.

3. The case of The State ex rel. City of Kansas v. The Corrigan Consolidated Street Railway Company is not in point in this case. The effect of the condition named in the ordinance of March 27, 1869, passed upon in that case, was the condition in reference to the company’s duty to keep certain parts of the streets in repair. The court held that the city, having contracted with the company that it might use her streets on condition that it would keep certain parts of them in repair, could not afterwards compel the company to do anything more in that particular than to' keep those parts of the streets in repair; that she could not compel the company to make the original improvements on those parts of the streets.

In the case of The City of Kansas v. Thomas Corrigan, just decided by the supreme court, the court reiterates its ruling in the case just referred to above, and also holds in addition thereto, that “ generally speaking, anything in the nature of any offence or misdemeanor can have no existence except as the result of the violation of some plainly imposed duty or rule of action prescribed by a competent law-making power.” In the case in hand, the ordinance, with the violation of which the defendant is charged, differs very widely from the ordinance with violating which he was charged in that case. In that case the ordinance prescribed no duty, but the ordinance in this case is full and complete, and even minute in its details, and clearly prescribes a duty, and imposes a penalty for a failure to discharge that duty.

Neither of the cases above cited applies to this case.

In the case of Mayor, etc., v. Second Av. R. R. (32 N. Y. 272), cited by defendant, it does not appear that the city of New York lacked the power to impose the tax at the time of the enactment of the ordinance granting the charter to the railroad company. Nor does it appear in that casé that there was in force in New York state a constitutional provision requiring such taxes as well as ordinary property taxes to be uniform. For these reasons that case does not appear in point. But if there be a conflict between the views herein expressed and that case, we must adhere to our views for the reasons given' in this opinion.

The tax in this case is not open to the objection of being double taxation. Both the ad valorem tax and the tax upon the use of the company’s cars as street railroad cars could be exacted. St. Louis v. Green, 7 Mo. App. 468; same case, 70 Mo. 564.

For these reasons the judgment of the criminal court of Jackson county is reversed, and the cause, standing upon the agreed statement of facts, is remanded with direction that said court enter judgment herein in accordance with this opinion.'

All concur.