Ploch v. City of St. Louis

Action to enjoin the enforcement of an ordinance taxing cigarette merchants located in the City of St. Louis. On demurrer the court ruled that the amended petition did not state a cause of action. Plaintiff refused to further plead. Judgment for defendants, and plaintiff appealed.

Plaintiff has been selling merchandise, including cigarettes, in the City of St. Louis for a number of years. He did so under the general merchants license ordinance, which required a license tax of $1.25 on each one thousand dollars of sales made during the year preceding the first Monday of June. He also paid an advalorem tax of sixty-seven one-hundredths of one per cent of the value of the stock in his possession at any one time between the first Monday of March and the first Monday of June of each year.

[1] The ordinance was approved June 8, 1939. It levied an annual registration fee of $1 expiring on the first Monday of July each year, and a tax of $1 per thousand on cigarettes sold, offered, or displayed for sale at retail. The tax is collected by the sale of stamps to the merchant, who must place them on packages of cigarettes for sale. Merchants licensed under the general merchant license ordinance at the time of the effective date of the ordinance in question are entitled to receive credit upon the purchase of stamps in an amount to be determined, as provided in the ordinance. The general merchants license ordinance is authorized by Section 7596, Revised Statutes 1929, which follows:

"All such cities, for city and local purposes, are hereby authorized to license, tax and regulate the occupation of merchants . . ., and may graduate the amount of annual license imposed upon a merchant . . . in proportion to the sales made by such merchant . . . during the year next preceding any fixed date."

In this connection it should be stated that a reasonable classification may be authorized even though the subject isolated and classified, is, at the time, covered by a general law. [State ex rel. Daily Record Co. v. Hartman, 299 Mo. 410, 424,253 S.W. 991.]

[2] I. Plaintiff contends that the ordinance violates Section 53, sub-section 32, Article IV of the Constitution, which provides that "where a general law can be made applicable no local or special law shall be enacted." He argues that the isolation of cigarettes from other merchandise, including other forms of tobacco, for the purpose of taxing and regulating the sale of the same, is an arbitrary and unreasonable classification.

In all jurisdictions the cigarette has been a favored article for isolation and classification. The sale or gift of a cigarette is prohibited in some jurisdictions. It is not a "useful commodity." The nicotine is harmful. There is no question of classification. The harmful properties of the article do the classifying. In this jurisdiction we have criminal statutes as follows:

"Any person who shall, by himself, his servant or agents, or as the servant or agent of any other person, directly or indirectly, or upon any pretense, or by any devise, sell, give away or otherwise dispose of, to any person under the age of eighteen years, any cigarette, cigarette paper or cigarette wrappers, or any substitute thereof, or for the purpose of being filled with tobacco for smoking, shall be adjudged guilty of a misdemeanor." [Sec. 4270, R.S. 1929.]

"Every person, over the age of ten years and under the age of eighteen years, who shall smoke or use cigarettes on any public road, street, alley, park, or other lands used for public purposes, or in any public place of business or amusement, or upon any railroad train or street car, shall, upon conviction, be adjudged guilty of a misdemeanor and punished by a fine of not more than ten dollars." [Sec. 4271, R.S. 1929.]

Furthermore, it is common knowledge that the size and mildness of the cigarette tempt the young to indulgences which produce tobacco addicts. This justifies the isolation of cigarettes from other forms of tobacco. In some jurisdictions the sale of cigarettes is prohibited within certain distances of school houses. The taxation and regulation of the article is well illustrated in 62 American Law Reports 105. The ordinance is not a purely revenue measure, for the tax levied is such that it tends to diminish the use of the article. An occupation tax may be both a police regulation and a revenue measure. [Viquesney v. Kansas City, 305 Mo. 488, 497, 266 S.W. 700; Gundling v. Chicago,177 U.S. 183, 188.] The classification is neither arbitrary nor unreasonable, the ordinance levies an occupation tax, and it does not violate the above named section of the Constitution.

Furthermore, the tax falls alike upon all retailers of cigarettes, and it is not an ad valorem tax. It follows that the ordinance does not violate the uniformity provisions of the Constitution, Sections 3 and 4, Article X. [St. Charles ex rel. v. Schulte, 305 Mo. 124, 129, 264 S.W. 654.]

Plaintiff cites City of Springfield v. Smith, 322 Mo. 1129,19 S.W.2d 1. In that case an ordinance of the city prohibited theatre amusement on Sunday. Defendant challenged the ordinance as in violation of Section 53, sub-section 32, Article IV of the Constitution. We ruled the ordinance a special law for the reason it isolated theatrical exhibitions from other commercial amusements equally disturbing the day of rest. The case is not authority under the facts in the instant case.

[3] II. Plaintiff also contends that the ordinance violates Sections 23 and 25 of Article IX of the Constitution which require city ordinances to be in harmony with the State law. In other words, he contends that the ordinance is prohibited by Sections 47 and 48 of the Sales Tax Act (Laws 1937, p. 568), which sections follow:

"No city, town or village, whether organized by general law or by special charter, shall, either directly or indirectly, levy, impose or collect any tax upon the sale of or charge for any tangible personal property taxed by the state under the provisions of this act, or, upon the sale of or charge for any service or other thing taxed by the state under the provisions of this Act." [Sec. 47.]

"Nothing contained in this Act shall prevent the levying or collecting by any city, town or village of any tax or license now authorized by any ordinance of such city, town, or village." [Sec. 48.]

He argues that Sections 47 and 48 repealed Section 7596, Revised Statutes 1929, authorizing cities of five hundred thousand inhabitants "to license, tax and regulate the occupation of merchants." The section (7596) is not mentioned in the act of 1937. If repealed, it is by implication. The City of St. Louis has been authorized to license, tax and regulate the occupation of merchants for sixty years (Laws 1879, p. 141). Furthermore, all cities, towns and villages have for many years been authorized to license, tax and regulate the occupation of merchants. It is not conceivable that the Legislature, by the act of 1937, intended to withdraw said authority from cities, towns and villages. It intended no such absurdity. Furthermore, it was provided in the act of 1937 that said act would expire December 31, 1939. We do not think the Legislature intended the repeal of Section 7596 by any provision of this temporary enactment. The question is reduced to a consideration of Sections 47 and 48 of the act of 1937.

It is provided in Section 47 that "no city . . . shall, either directly or indirectly, levy . . . any tax upon the sale of . . . personal property taxed by the state under the provisions of this act." Furthermore, it is provided in Section 5 that the tax levied by the act is a "tax upon the sale," which must be collected by the merchant as the agent of the State. Furthermore, it is provided in Section 6 that the purchaser must pay the tax.

We agree with plaintiff that the words "tax upon the sale," as used in Section 47, mean the same as the words "tax upon the sale," as used in Section 5. If so, Section 47 only prohibits cities from levying a tax to be paid by the purchaser. In other words, Section 47 does not prohibit the occupation tax levied by the ordinance under consideration.

In this connection it should be stated that Section 48 is a cautionary provision. Plaintiff states that it was enacted at the instance of the city counselor of Kansas City to prevent the act from disturbing existing license ordinances of said city. The section in no way limits the authority of the city of St. Louis under Section 7596, Revised Statutes 1929.

The sections contain no word tending to show that the Legislature intended to take from cities authority to impose an occupation tax on merchants. The ordinance does not violate either Sections 23 or 25, Article IX of the Constitution, and the city was authorized by said Section 7596 to enact the ordinance.

[4] III. Plaintiff contends that the ordinance violates the search and seizure clause of the State Constitution (Sec. 11, Art. 2) and the due process clauses of the State and Federal Constitutions.

(a) There is no provision in the ordinance for a search of the premises of the cigarette merchant. In aid of collection, the license collector or his representative is authorized by the ordinance to examine the books, papers, invoices, cigarettes, vending machines and receptacles containing cigarettes. Plaintiff does not object to the examination of the books, papers and invoices of the merchants. Even so, he argues that the provision authorizing an examination of cigarettes, vending machines and receptacles located on the premises violates the above mentioned section of the Constitution. We do not think so. The provision for said examination is reasonable and in aid of the collection of the tax. It does not violate the search and seizure clause of the Constitution. [24 R.C.L., p. 705.]

[5] (b) He also challenges the section of the ordinance, which follows:

"Whenever the License Collector or any of his duly authorized representatives shall discover any cigarettes, subject to tax provided by this ordinance, and upon which said occupation tax has not been paid or the stamps affixed as herein required, the License Collector, or such representatives, are hereby authorized and empowered forthwith to seize and take possession of such cigarettes together with any vending machine or receptacle in which they are held for sale and the same shall thereupon be deemed to be forfeited to the city. The License Collector, may, within a reasonable time, thereafter by a public notice at least five days before the day of sale, sell such forfeited cigarettes at a place designated by him and from the proceeds of such sale shall collect the tax due thereon together with a penalty of fifty per centum thereof and the costs incurred in such proceedings. The Comptroller shall pay the balance, if any, to the person in whose possession such forfeited cigarettes were found; provided, however, that such seizure and sale shall not be deemed to relieve any person from fine or imprisonment provided herein for violation of any provision of this ordinance."

The provisions of said section are for the public good and to prevent fraud upon the revenue laws. They should "be considered fairly and reasonably so as to carry out the intention of the Legislature." [23 Am. Jur. 601, 602.] It is clear that it was not intended to declare a forfeiture of title to unstamped cigarettes, for it is provided that the balance of the proceeds of the sale, after the payment of the tax, penalty and costs, must be paid to the merchant or person who was in possession of the unstamped cigarettes. In effect, under said section, the tax is a lien on the cigarettes which may be sold, as therein provided, to enforce payment of the tax. "The mode of levying and collecting taxes is a matter confided to the legislative power, and such laws are ``laws of the land.'" [De Arman v. Williams,93 Mo. 158, 163, 5 S.W. 904; Sec. 9915, R.S. 1929.]

Furthermore, the arrest of a merchant in possession of unstamped cigarettes seemingly is to be made concurrently with the seizure of the cigarettes, for the ordinance provides for the prosecution of persons violating the same, "and at least impliedly provides for a judicial hearing and determination of the question whether the property seized . . . comes within the condemnation of the act." [Star Square Auto Supply Co. v. Gerk,325 Mo. 968, 30 S.W.2d 447, 456.]

The ordinance is not in violation of the due process clause of the constitutions.

[6] (c) In this connection it is contended that a provision of the ordinance is a local or special law changing the rules of evidence because it provides that when cigarettes are without stamps, a prima facie presumption arises that they are kept in violation of the ordinance.

The ordinance provides that the absence of stamps on packages of cigarettes, which packages are not marked as having been received within the preceding twenty-four hours, raises a prima facie presumption of nonpayment of the tax.

The Federal provision with reference to cigarette stamps follows:

"Absence of stamps. The absence of the proper revenue stamp on any box of cigars or cigarettes sold, or offered for sale, or kept for sale, shall be notice to all persons that the tax has not been paid thereon, and shall be prima facie evidence of the nonpayment thereof." [26 U.S.C.A., sec. 812, par. f.]

Plaintiff admits that the provision under consideration must be considered with the section providing for a forfeiture, otherwise there is no changing of the rules of evidence by a local law. We have ruled that the ordinance provides no forfeiture. The provision changes no rule of evidence.

[7] IV. Plaintiff also contends that the title to the ordinance violates Section 13, Article IV of the charter, which follows:

"No bill, except a general appropriation bill, which shall only embrace matters on account of which moneys are appropriated, shall contain more than one subject, which shall be clearly expressed in its title." This provision of the charter is almost identical with Section 28, Article IV of the Constitution with reference to the title of bills pending in the Legislature. From this he argues that cases construing said section of the Constitution are in point on the question as to whether or not the title to this ordinance is defective. He cites State v. Rawlings, 232 Mo. 544, l.c. 558, 134 S.W. 530. In that case the title descended to details with reference to the subject matter of the statutes. The title under consideration follows:

"An ordinance to amend Art. 25 of Chap. 19 of the Revised Code of St. Louis of 1936, relating to a merchants license tax by adding thereto twelve new sections to be known as sections . . . relating to a license tax on the occupation of selling cigarettes at retail, providing for the method of payment thereof, providing means and methods for the administration and enforcement thereof, and containing an emergency clause."

The title gives notice that the ordinance deals with the "occupation of selling cigarettes at retail." It does not descend to details. The constitutional provision relied upon by plaintiff makes no such requirement. The rule is stated as follows:

"The evident object and purpose of the aforesaid requirement of the organic law of this State is that the title of every legislative act shall indicate the general contents or subject matter of the act, which may be expressed in the title in a few or greater number of words; and if the title does not tend to mislead the public and the members of the Legislature as to the contents and subject matter of the legislative act, and if the title is not designed as a surreptitious cover to vicious and incongruous legislation, having no reasonable and natural relation to the subject expressed in the title, then such title does not impinge on, or violate, the constitutional requirement and mandate. [St. Louis v. Wetzel, 130 Mo. 600, 616, 31 S.W. 1045.] . . .

"As is said by our own court, in banc, in a case recently decided: ``We resolve the doubt, if any, in favor of validity, if the challenged legislation is germane and relates either directly or indirectly to the main subject' of the act as expressed in its title." [Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, l.c. 981, 30 S.W.2d 447.]

Under said rule the title is not in violation of the Constitution.

[8] V. Plaintiff also contends that the ordinance violates Section 7596, Revised Statutes 1929, because it does not impose the tax in proportion to the "sales made during the next preceding year".

The section requires the city to fix the license fee in proportion to the sales made during the year next preceding anyfixed date. The section does not prohibit the fixing of the fee in proportion to the sales made during the year next preceding the issuance of the license. It follows that the annual license fee may be determined from the date fixed for the expiration of the license. The ordinance fixed the first Monday of July for the expiration of licenses. Under the ordinance the license fee is fixed in proportion to the sales made during the year next preceding said date. The only mandatory requirement of Section 7596 is that the tax be levied "in proportion to the sales made." [Kansas City v. Threshing Machine Co., 337 Mo. 913, l.c. 932,87 S.W.2d 195.]

[9] VI. Plaintiff also contends that the ordinance discriminates against him and in favor of dealers who sell cigarettes within the city but deliver the same to points in other cities or states.

The challenged provision of the ordinance follows: "Whenever any cigarettes upon which stamps have been placed by a retailer have been sold and shipped by him into another city or state for sale or use there . . . such dealer shall be entitled to a refund." This provision has no reference to the retail trade of merchants in the city. It has reference to shipments of cigarettes to other territory for sale at retail.

An ordinance of the City of Sedalia containing a similar provision was sustained in City of Sedalia ex rel. v. Standard Oil Co. of Indiana, 66 F.2d 757, 761; City of Sedalia ex rel. v. Shell Petroleum Corporation, 81 F.2d 193, 106 A.L.R. 1327.

[10] VII. Plaintiff also contends that the ordinance in question violates Section 7287, Revised Statutes 1929, which follows: "No municipal corporation in this state shall have the power to impose a license tax upon any business, avocation, pursuit or calling unless such business, avocation, pursuit or calling is specially named as taxable in the charter of such municipal corporation, or unless such power be conferred bystatute."

We have ruled that the ordinance under consideration is authorized by Section 7596, Revised Statutes 1929. The contention must be overruled.

The contentions considered and ruled dispose of other points made by the plaintiff.

The judgment should be affirmed. It is so ordered. On motion for rehearing, Leedy, C.J., and Ellison, J., withdraw concurrence. Ellison, J., files a dissenting opinion, in whichLeedy, C.J., concurs. Opinion modified. Hays, Clark, Tipton and Douglas, JJ., concur in the opinion as modified. Motion for rehearing overruled.