City of Washington v. Washington Oil Co.

Counsel

H.A. Krog, James Booth and James L. Anding for appellant. (1) A city of the third class has the power and authority to levy and collect a license tax on merchants of all kinds, and oil stations, wholesale and retail. R.S. 1929, sec. 6840. (a) The term "merchant" includes one who is engaged in the business of selling gasoline. Viquesney v. Kansas City, 266 S.W. 700 ; Beverly Hills v. Schulter, 130 S.W.2d 532 ; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281 ; Troy v. Harris, 102 Mo. App. 51 . (b) A municipal corporation has the power to divide a class taxable under its charter into subclasses and tax these subclasses differently. Beverly Hills v. Schulter, 130 S.W.2d 532 ; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281 ; St. Charles ex rel. Palmer v. Schulte, 264 S.W. 654 . (2) Where a tax is imposed and is to be measured by the volume of gasoline sold, it is an occupation tax, one form of excise tax. Viquesney v. Kansas City, 266 S.W. 700 . (3) The constitutional requirement of uniformity, as applied to taxes on occupations, is satisfied when the burden imposed falls alike on all persons who are in the same situation. Beverly Hills v. Schulter, 130 S.W.2d 532 ; Ex parte Asotsky, 5 S.W.2d 22 ; St. Charles ex rel. Palmer v. Schulte, 264 S.W. 654 . (a) The presumption is that the tax imposed by the ordinance is uniform. State ex rel. v. Koeln, 61 S.W.2d 754; Beverly Hills v. Schulter, 130 S.W.2d 532 . (b) An ordinance practically identical with the ordinance in question was held not to violate the constitutional provisions as to uniformity; due process of law and equal protection was not unreasonable. Beverly Hills v. Schulter, 130 S.W.2d 532 ; Viquesney v. Kansas City, 266 S.W. 700 ; Bowman v. Continental Oil Co., 256 U.S. 642 , 41 Sup. Ct. 606; Sedalia v. Standard Oil Co., 66 F.2d 757 . (4) Double taxation is not favored and is never presumed. State ex rel. Pearson v. Louisiana Mo. River Railroad Co., 196 Mo. 523 ; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281 . (a) Under the rules of construction, the elimination of a part of the ordinance as unconstitutional does not affect the validity of the remainder. O'Donnell v. Wells, 21 S.W.2d 762 ; St. Louis v. Grafeman Dairy Co., 190 Mo. 492 ; City of Rockville v. Merchant, 60 Mo. App. 365 . (5) The Sales Tax Act does not prohibit the occupation tax levied by the ordinance under consideration. Viquesney v. Kansas City, 266 S.W. 702; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 282; Sedalia ex rel. v. Standard Oil Co., 66 F.2d 757 ; Ploch v. St. Louis, 138 S.W.2d 1020 ; Laws 1937, p. 558, sec. 3. (6) The courts will not give the ordinance a construction which will render it unconstitutional, absurd or unreasonable, when it is susceptible of a constitutional or reasonable one, nor a construction which will make it an instrument by which to work an injustice. Bassen v. Monickton, 274 S.W. 404 ; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281 . John B. Busch and Theodore P. Hukriede for respondents. (1) The ordinance in question is a revenue measure rather than a regulatory act under the police power. Kroger Grocery Baking Co. v. St. Louis, 106 S.W.2d 435 ; Keane v. Strodtman, 18 S.W.2d 896 . (2) The ordinance providing for a gasoline tax of one cent per gallon on gasoline sold from some retail stations in the city of Washington and a tax of one-half cent per gallon on gasoline sold from other retail stations within the same city is unconstitutional for lack of uniformity. Sec. 3, Art. X, Mo. Const.; St. Louis v. Spiegel, 75 Mo. 145 ; St. Charles v. Schulte, 305 Mo. 124 ; St. Louis v. Buskowitz, 273 Mo. 543 . (3) The ordinance cannot apply to individuals or corporations engaged in the transaction of gasoline whose places of business are located outside the city of Washington. St. Charles v. Nolle, 51 Mo. 122 ; St. Clair v. George, 33 S.W.2d 1019 .