City of St. Louis v. Sternberg

Norton, J.

This proceeding was commenced in the police court of the city of St. Louis, upon the following complaint:

City of St. Louis, Missouri, September 29th, 1877. Theodore Sternberg, to the city of St. Louis, Dr. To $50 for the violation of sections 1 and 3, of an ordinance of said city, entitled, An ordinance, No. 10,368, concerning lawyers,'and fixing the amount of their license, approved September 7th, 1877, in this, to-wit: In the city of St. Louis, and State of Missouri, on the 26th day of September, 1877, and on divers other days and times, between said date and the 7th day of September, 1877, did, then and there, being a lawyer, exercise the business and profession of an attorney and counselor at law, and did enter upon and continue the exercise and practice of his profession as aforesaid, and did practice law and plead for other parties in the professional capacity aforesaid, in the courts of justice, within said city of St. Louis, without first having obtained a license therefor from the collector of said city continuing in-force, contrary to the ordinance in such case, made and provided. On information of M. A. Rosenblatt, city collector.

Samuel Erskine,

City Attorney of the city of St. Louis.

The defendant duly appeared, and an agreed statement of facts was filed, by which it was conceded that defendant was within the purview of the orrlinance, and that he had violated the same, and the case being submitted, judgment was rendered in favor of the city for $25 and costs, and execution ordered therefor. The defendant appealed to the court of criminal correction, and there moved to dismiss the information on many grounds involving the validity of the ordinance, and his motion was overruled *296 and judgment was rendered in favor of the city for $25 and costs ; and by appeal the case was taken by defendant to the St. Louis court of appeals, where the judgment was reversed, from which plaintiff" has appealed to this court.

It is claimed by plaintiff that the following ordinance passed by the city of St. Louis on the 7th day of September’, 1877, and on which the action is based, justifies the proceeding: Section 1. No person shall exercise, within the city of St. Louis, the business or profession of a lawyer, without a license therefor, as hereinafter provided. Section 2. A lawyer, within the purview of this ordinance, is a person who is put in the place, stead or turn of another, to manage his matters of law, or whose office is to appear for parties to actions and other judicial proceedings, and to prosecute and defend them in their behalf, and whose authority is derived either from a formal warrant of attorney or a mere oral retainer. Section 8. Every lawyer, before entering upon, or continuing the business or practice of his profession in the city of St. Louis, shall obtain from the collector an annual license therefor, for which he shall pay the collector, in advance, the sum of $25. Section 4. Any person who violates any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and, on conviction, shall be fined not less than $25 nor more than $50 for each offense.

i. lawyer’s liLouis charter powers.

It is contended that the taxing power of the State has never been delegated or conferred upon the city of St. Louis, and that, therefore, the ordinance in .question imposing a license tax is void. If the premises thus assumed be well founded, the conclusion deduced necessarily follows, for we give full recognition to the doctrine as laid down in Dillon on Munic. Corp., § 605, that it is a principle universally declared and admitted that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property unless the power be plainly and unmistakably con ferred. It is true, as contended by defendant, that the power to tax *297 lias not been delegated to the city of St. Louis by any act of the General Assembly, but plaintiff looks to a higher source of power than is to be found in any legislative enactment, and claims to derive the authority from the constitution itself. A careful examination of the provisions of the constitution which gave rise to the existing government in St. Louis, will, we think, demonstrate that the claim thus made is fully justified. It will he observed that in article 9 of the constitution, under the head of “ counties, cities and towns,” St. Louis is singled out from all the other cities and towns in the State, and sections 20, 21, 22, 23, 24 and 25, of the article, contain provisions relating exclusively to it. The general purpose that the city might have the power to enlarge its limits and separate itself in a governmental point of view from the county, and have the right as a municipality to govern itself, provided its government should be in subordination to and consistent with the constitution and laws of the State, is manifested throughout the above sections. Section 20, after authorizing the city to enlarge its limits, provides for the election “ of a board of thirteen freeholders, whose duty shall be to propose a scheme * * for the government of the city by a charter, which shall always be in harmony with and subject to the constitution and laws of the State, and which shall, among other things, provide for a chief executive and two houses of legislation.” It further provides that such charter, when ratified by a majority of the qualified voters, shall become the organic law of the citj', and at the end of sixty days thereafter, shall take the place of and supersede the charter of St. Louis, and all the amendments thereof. Section 21 requires all courts io take judicial notice of such scheme and charter when filed in the office of the secretary of State, and among the archives of the city as therein provided. Section 23, among other things, declares that in the adjustment by said scheme of the relations between the city and county, the city shall take upon itself the entire park tax, and in consideration of the city *298 becoming the proprietor of all the county buildings and property within its enlarged limits, it shall assume the whole of the existing county debt and be exempted from all county taxation.”

It is clear, we think, from these sections, that it was the intention of the framers of the constitution that the city of St. Louis might adopt as its organic law a charter containing any or all the provisions then in its charter, and such other ¡provisions as would not be inconsistent with the constitution and laws of the State. That the voters of St. Louis had a right to adopt a charter, cannot be denied; nor can it be disputed that when adopted in conformity with the requirements of the constitution, in sixty days thereafter it superseded and stood in the place of the charter for the government of the city at the time of its adoption; nor can it be questioned that in sixty days after its adoption all special laws relating to St. Louis county, inconsistent therewith, were also superseded.

As neither State, county nor municipal government can be maintained without revenue, and as revenue cannot be raised without the exercise of the taxing power in some form, it would follow as the logical result of defendant’s theory that St. Louis would be practically left without any government. It could not be subjected to the county government, because the effect of the scheme was to separate it from the county for governmental purposes; nor could it be governed under the charter in existence before the adoption of the scheme, because that was superseded by the new charter; nor could it be governed under the new charter adopted by the voters, because, as defendant insists, under it no power to tax existed. It certainly could not have been designed to take from St. Louis both the county and city government, which it enjoyed, and leave it without any in a condition of utter chaos and confusion, but on the contrary it must be presumed that the framers of the constitution, had in their minds the fact that it was wholly impossible to conduct a city government in a city *299 like St. Louis without the power of taxation being vested in those charged with conducting such government. The right to adopt a charter necessarily implied the right to put in it such provisions as would enable the city to maintain its government. The very term charter signifies an act of incorporation, bestowing rights, powers and privileges, and the only limitation which the constitution authorizing its adoption imposes, is that it shall be in harmony wdth the constitution and the laws of the State. That the term charter was used in this sense is clear from the fact that it is declared that “ it shall, among other things, provide for a chief executive and two houses of legislation,” and that when adopted it should become the organic law for the government of the city. _ Under the theory of defendant the city of St. Louis, after the adoption of the charter, would have a charter without its bestowing any powers, rights or privileges, a legislative assembly without power to pass laws or ordinances, a city with hundreds of thousands of inhabitants without any municipal government, charged with the payment of the park tax and the debt, both of the city and county of St. Louis, without authority to impose taxes to raise revenue to pay either the one or the other. We cannot give our assent to an interpretation of the sections of the constitution we have adverted to which would bring such results, nor do we believe them to be susceptible of such meaning.

2. the state’s RIGHTTOTAX lawyers.

The defendant, conceding for the argument, that under the charter the city had the right to exercise the taxing power, insists that the exercise of it . „ ,. m the passage or the ordinance m question is not warranted by the constitution. In support of this view he contends that the State could not exercise such power, and that, therefore, the city could not, and cites authorities to show that laws imposing a license tax on lawyers have been adjudged to be unconstitutional and void. However this may have been elsewhere decided, the power of the State to tax all professions has remained uuq'ues *300 tioned in this State, since the case of the State v. Simmons, 12 Mo. 271 , the principle of which was followed and approved in the case of the City of St. Louis v. Laughlin, 49 Mo. 559. We are not disposed to re-open the question, especially as we think it has been settled, not only in accordance with reason, but with the weight of authority.

It is also argued that section 26 of the charter under the head of legislative proceedings, which “ declares that the mayor and assembly shall have power to license, tax and regulate lawyers,” is inconsistent with section 1, article 10, section 10, article 10, and section 25,'article 9, of the constitution, and, therefore, void. Section 1, supra, declares that “the taxing power may be exercised by the General Assembly for State purposes, and by county and other municipal corporations, under authority granted to them by the General Assembly for county and other corporate purposes, and section 10 declares that the General Assembly may, by general laws, vest in the corporate authorities of any county, city or town the power to assess and collect taxes for county, town or municipal purposes. It is contended that, inasmuch as under these sections municipal corporations can only exercise the power of taxation when such power is conferred by the Legislature by general law, and inasmuch as no such general law giving the power to St. Louis had been passed, section 26, supra, of the charter is void. This argument, we think, is unsound in ignoring the fact that the constitution containing the provisions on which the argument is based also contains a provision which expressly designates a particular corporation, viz : the city of St. Louis, and declares that it may adopt a charter, an act of incorporation for its own government. We perceive no inconsistency between the section which authorizes St. Louis to make its own charter and by necessary implication also authorizes it by virtue of such charter to exercise the taxing power for municipal purposes and sections 1 and 10, supra. A constitutional provision delegating such power to a particular municipal *301 ity, either expressly or by necessary implication, may well harmonize with another provision which requires the power to be delegated to all other municipalities in the State by general law. If the power to tax, as we have attempted to show, has been conferred on the city of St. Louis by the constitution no additional force could be given to it by an enactment of a general law giving to it a power it already possessed. In view of the clear and lucid argument in the opinion of Judge Bakewell, of The St. Louis court of appeals, touching the points we have been considering, we deem it unnecessary to add anything farther on this branch of the case.

3. laavybbs’ liformityAoi taxai tlon

It is also argued that the ordinance in question is in violation of section 3, article 10, of the constitution, which declares, “That taxes shall be uniform upon the same classes'of subjects within the territorial limits of the authority levying the tax.” It is insisted that the ordinance is obnoxious to the above requirement in this, that it demands of every lawyer the same amount of tax without reference either to the income, emoluments. or profitá of his practice as such. That the latter might be a more just method of exercising the power than the former, may not be denied, but such an argument addresses itself more properly to the municipal assembly than to us, and we think it is fully answered in the case of the Am. Union Ex. Co. v. The City of St. Joseph, 66 Mo. 675 , and Glasgow v. Rowse, 43 Mo. 479 , where it was held that when municipalities having the power to tax callings, trades and professions, tax alike all persons engaged in the same business, such taxation is equal and uniform.

4. -: criminal ?orce.eutlon t0 en

While concurring in the views expressed under the first, second and third heads of the opinion of the St. Louis court of appeals, we cannot give our assent to what is said under the fourth head thereof, which led to the reversal of the judgment of the court of criminal correction. The right of the municipal assembly to pass’an ordinance imposing the license tax being con *302 ceded, we think it follows, under section 6, article 3, of the charter, which provides, “that the mayor and assembly shall have power * * by ordinance to impose, collect and enforce fines, forfeitures and penalties for the bi’each of any city ordinance; to pass all such ordinances not inconsistent with the provisions of the charter or laws of the State, * * and to enforce the same by fines and penalties not exceeding $500, and by forfeiture not exceeding $1,000,” * * that the assembly had the power to pass section 4 of the ordinance which subjects every lawyer who prosecutés his profession, without first taking out a license, to a fine not less than $25 nor more than $50.

Such ordinances have been uniformly upheld wlien brought to the attention of this court. In the case of the City of St. Louis v. Laughlin, 49 Mo. 559 , the defendant was prosecuted for violation of an ordinance in practicing law without a license. The validity of the ordinance was drawn in question on the sole ground that the Legislature had not, in the charter, delegated to the city the power to pass such an ordinance, it being conceded that if such, power had been delegated the city could have passed it. In the case of the City of St. Louis v. The Manufacturers’ Savings Bank, 49 Mo. 574 , the defendant was proceeded against for carrying on the business of banking without a license as required by an ordinance of the city. A fine was imposed, and on appeal the judgment was affirmed. In the case of. the City of St. Louis v. Life Association, 53 Mo. 466 , defendant was fined for prosecuting its business without a license, and the judgment of the criminal court was sustained. The power of municipal corporations to recover fines and penalties from persons conducting business or pursuing avocations without license when such license is required by ordinance, has been upheld in Ohio in the case of Cincinnati v. Buckingham,, 10 Ohio 257 ; in Massachusetts in the ease of Vandine, petitioner, 6 Pick. 187 ; in Alabama in Shelton v. Mobile, 30 Ala. 540 ; in Mich *303 igan in Chilners v. People, 11 Mich. 43 ; in New York in Brooklyn v. Cleves, Hill & Denio Rep. Lalor’s Sup. 231.

This is not a proceeding on the part of the city to collect the amount of license required by the ordinance, but is instituted to recover a fine for a breach of it committed by defendant in practicing law without such license, and although he may be subjected to the payment of the fine he would .not thereby be entitled to the license. The mere fact that defendant did not procure the license does not create the liability, but the.fact of his practicing as a lawyer without such license. It was his privilege to decline to pay the $25,-the required sum for the license, and it was only when he continued or entered upon such practice without such license that he became liable to a fine. It is, therefore, the collection of the fine, and not the license tax, which is sought to be enforced in this proceeding. Such a proceeding is maintainable under the authority of the City of Carondelet v. Smith, 10 Mo. 438 . The power exercised by the city in passing the ordinance imposing the fine is analogous to that exercised by the Legislature in requiring merchants to be licensed and subjecting a person pursuing that avocation without license to a fine of not less than $50 nor more than $5,000 for each offense. The avocation of a merchant is not malum in se, and such enactments, whether made in the exercise of the police power of the State or otherwise, have always been upheld and enforced by this court. Austin v.The State, 10 Mo. 591 . No question of evil intent arises in such cases; the essence of the offense consists in pursuing the avocation without license when one is required by law. State v. Cox, 32 Mo. 566 ; State v. Willis, 37 Mo. 192 ; State v. Whittaker, 33 Mo. 457 ; State v. Jacobs, 38 Mo. 379 ; State v. Rucker, 24 Mo. 557 . State v. Myers, 63 Mo. 324 .

It matters not whether the ordinance assailed was passed as a police regulation or otherwise. .The question is one of power, and whether the provision of the charter authorizing the passage of such an ordinance was in con *304 flict with either the constitution or laws of the State. We think it does not conflict with either. Under the constitution the imposition of a license tax on lawyers has been held, as we have shown, to be a legitimate exercise of the taxing power ou the part of the State, and the charter provision does not, therefore, conflict with it, nor does the mere fact that the General Assembly has not exercised such power by passing a general law requiring all lawyers to pay a license tax, and imposing a fine on every one practicing as such without a license, create a conflict between the charter provision and the ordinance passed in virtue of it and any law of the State. If the General Assembly should pass a law declaring that no license should be required of lawyers by any municipal corporation in the State, then such conflict would exist between the charter provision and the law; and section 25, article 9, of the constitution would apply, and the argument of defendant that the charter provision, not being in harmony with the law of the State, was, therefore, obnoxious to that section, would have force.

Butler’s Appeal, 73 Pa. St. 448, is the only authority to which we have been cited as being in opposition to the views herein expressed. That case is unlike the one before us. It was therein held that no delegation of .power was contained in the charter of Wilkesbarre authorizing the city to require a license of the persons complaining. In the case at bar express authority is given in the charter to the municipal assembly to provide for licensing and taxing lawyers. It was also held that, if the power to require the license had been conferred, the ordinance imposing a fine and imprisonment for the non-payment of the license fee was invalid, because there was nothing in the act of incorporation “ authorizing the imposition of such a sentence without indictment and trial by jury.” In the case before us express authority is given in the charter authorizing the municipal assembly to provide for imposing fines, penalties and forfeitures for breach of ordinances. In Butler’s Ap *305 peal, supra, no power was given in the charter of Wilkes-barre to pass either the ordinance requiring the license, or an ordinance imposing fines for the breach of ordinances. In the charter of St. Louis the1 power is given to do both.

"We are of the opinion that the judgment of the court of appeals should be reversed, and that of the court of criminal correction affirmed, which is accordingly done, with the concurrence of the other judges.

Reversed.