CITY OF SEDALIA, ex rel. and to Use of BAUMAN, City Treasurer, v. STANDARD OIL CO. OF INDIANA, and six other cases, 66 F.2d 757

MUNGER, District Judge. In this suit, the city of Sedalia, Mo., as plaintiff, now appellant, sought to collect from the defendant, now appellee, upon a claim for taxes due to the city. For that purpose it filed a bill in equity, containing two causes of action. The defendant’s motion to dismiss the bill was sustained, and this appeal was taken. Similar proceedings were had in similar cases where the Shell Petroleum Company, the Skelly Oil Company, the Sinclair Refining. Company, the White Eagle Oil & Refining Company et al., the Mid-Continent Petroleum Company, and the National Refining Company were defendants.

By stipulation of parties and an order of this court the appeals were consolidated for presentation in this court, with leave that the transcript of the record in the Standard Oil case should be printed and that the appeals in the other eases should abide by the decision of this court in this ease.

In the first cause of action the plaintiff based its right to recovery upon the terms of an ordinance of the city passed in 1924 and entitled “An ordinance providing for the licensing of persons, firms or corporations engaged in the business of selling gasoline and transporting same through the streets of the City of Sedalia, Missouri, and providing a tax of one-half of one cent per gallon on all gasoline so sold and providing penalties for the violation of said ordinance.” Sections 1, 2, and 6 of the ordinance were as follows: “Section 1.

No person, firm or corporation shall engage in, carry on or conduct the business of selling gasoline and transporting the same in barrels, tank wagons or other containers having a capacity of more than five (5) gallons without first having obtained a license so to do from the City Clerk. “Section 2. Every person, firm or corporation, engaged in the business defined in

Section 1 hereof shall' pay the City Treasurer a quarter-annual license tax of one-half of one cent per gallon on or before the 15th day of December, March, June, and September of each year for the preceding period of three months and ending as aforesaid.” “Section 6. The provisions of this Ordinance shall not apply to gasoline shipped out, of this City to other cities, towns and villages by the persons subject to the payment of the license tax provided for in

Section 2 hereof.” The ordinance contained provisions relating to the keeping of records of the sales of gasoline, the making of reports to the city, and imposing penalties for violation of the ordinance.

The plaintiff alleged that from September 1, 1924, until March 31, 1928, the defendant was engaged in Sedalia in carrying on the business of selling gasoline and transporting it in ban-els, tank wagons, and other containers having a capacity of more than five gallons, but had only paid part of the tax due to the city; that it had failed to keep an accurate record of its sales in Missouri, and had failed to file the reports required by the ordinance.

The plaintiff also alleged that a trial of the issues in the case would necessitate the examination of a long and intricate account between the parties, and the examination of thousands of transactions between the defendant and its customers, and others, and prayed that the defendant should be required to account for the number of gallons of gasoline sold within the state of Missouri under the ordinance, and for judgment for the amount of taxes that should he found -due.

The second cause of action sought a similar recovery of the taxes for a subsequent period under the terms of this ordinance, after it had been amended by increasing the tax imposed under

section 2 from one-half cent to one cent per gallon. The trial court was of the opinion that the ordinances were void under the terms of sections 6840 and 7287 of the Revised Statutes of Missouri 1929 (Mo. St. Ann. §§ 6840r, 7287). It is conceded that the right of the city of Sedalia to impose a tax of this kind must be found in the powers conferred by the portions of

section 6840 which read as follows: “The [city] council shall have power and authority to levy and collect a license tax on * * * wholesale merchants, merchants of all kinds” and that this right is limited by the terms of

section 7287, which is as 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 by statute.” It was the view of the trial court that the avocation named in the ordinance of those “engaged in the business of selling gasoline and transporting same through the streets of Sedalia, Missouri,” was not one of those specially named as taxable under

section 6840. In Campbell Bailing Co. v. City of Tlarrisonville, Mo., 50 E.(2d) 670, 674, it was determined by this court, after a review of the decisions of the Supreme Court of Missouri, that a grant of po wer to impose a city license tax upon “merchants of all kinds” authorized an ordinance of a city imposing a tax upon persons, firms, or corporations, “engaged in selling or delivering any goods or merchandise of any kind” at wholesale or retail to any one in the city, notwithstanding the limitations expressed in

section 7287 of the Revised Statutes [Mo. St. Ann. § 7287], This court said: “Appellant urges that, if this ordinance may he regarded as taxing a calling which is included within any of the avoeations enumerated in the statute, it does this by subdividing such avocation, and that such is not permissible because the classifications for license tax purposes are made by the statute itself. It cites several Missouri eases. We have examined all of these citations as well as others. There are expressions in several opinions which, taken alone, support this contention (see City of St. Louis v.

Baskowitz, 273 Mo. 543, 563, 564, 201 S. W. 870; State v. Miksicek, 225 Mo. 561, 125 S. W. 507, 511, 135 Am. St. Rep. 597; Kansas City v. Crush, 151 Mo. 128, 135, 52 S. W. 286), but in all of these eases the snbelassiiieation was in itself regarded as arbitrary. Unless these decisions he held to mean that no sub-classification is allowable where such is arbitrary, it is difficult to reconcile them with Eldorado Springs v. llighfill, 268 Mo. 501, 188 S. W. 68, which is later than the Grush and Miksicek Cases, only slightly older than the Baskowitz Case and decided by the same court.

Attempting to reconcile fhe High fill Case with the other cases, we think the rule to bo deduced is that there may not he sub-classifications of an avocation enumerated in the statute unless such subclassifieation be reasonable and natural; that is, not arbitrary.” Nothing is found in the eases of City of Ozark v. Hammond, 329 Mo. 1118, 49 S. W.(2d) 129, or City of Lebanon v. Joslyn (Mo.

Sup.) 58 S.W.(2d) 289, decided since the opinion was written in the Campbell Baking Company Case, which requires a different conclusion as to the right of a city to subdivide a class named as “merchants of all kinds.”- Applying the rule adopted by this court in the ease mentioned, the classification in this case of those “engaged in the business of selling gasoline and transporting same through the streets” of the city must be upheld, unless the s,election of the class is arbitrary or unreasonable.

The appellee claims that the ordinance is unreasonable because it discriminates between those who may sell gasoline and haul it in containers such as are described in the ordinance and others who haul it in containers of less size, and discriminates between those who may both sell and transport gasoline as described in the ordinance within the city and others who may sell it within the city, but transport it into, out of, or through the city, and between those whose whole business is the sale and transportation of gasoline, and others who sell other articles than gasoline.

As the case, is presented on this appeal, we are advised only by the bill and the motion to dismiss. The bill alleges that the defendant was engaged in the city of Sedalia in the business of selling gasoline and transporting it in barrels, tank wagons, and other containers having a capacity of more than five gallons, but it does not appear that there were any other vendors of gasoline who transported it in any manner. The presumption of the validity of an ordinance, as in case of other laws, may not be overthrown by the suggestion of discriminations that may never be proved. Pullman Co. v. Knott, 235 U.

S. 23, 35 S. Ct. 2, 59 L. Ed. 105; Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U. S. 335, 52 S. Ct. 144, 76 L. Ed. 323; Louisville & Nashville E. Co. v. Finn, 235 U. S. 601, 35 S. Ct. 146, 59 L. Ed. 379; Standard Stock Food Co. v. Wright, 225 U. S. 540, 32 S. Ct. 784, 56 L. Ed. 1197; 12 Corp. Jur. 786. The trial court was also of the opinion that the ordinance was invalid for lack of uniformity in its operation because it omitted to impose a similar tax upon those who sold gasoline, but did not transport it, and upon those who transported it in containers of less capacity than five gallons, whereas

section 3 of

article 10 of the Constitution of Missouri requires that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. Assuming that there may have been others who sold or transported this commodity under these circumstances, the requirement of uniformity is met if the tax falls alike on all persons who are in substantially the same situation. In illustrating this principle the court said in City of St. Charles v. Schulte, 305 Mo. 124, 264 S.

W. 654, 655: “The Legislature delegated to cities of the third class, as it was competent for it to do, authority to levy and collect a license tax on the vendors of soft drinks. Under this general power so delegated to it the City of St. Charles was not bound to levy the same amount upon all vendors of soft drinks. It could, in its discretion, divide them upon any reasonable basis into classes, as, for example, the volume of business done (City of Aurora v. McGannon [138 Mo. 38, 39 S. W. 469], supra), or the specific character of the drinks sold (In re Watson [17 S. D. 486, 97 N. W. 463, 2 Ann.

Cas. 321], supra), and fix a different tax for each class. (1 Cooley, Tax’n [4th Ed.] 353.) Upon the same principle peddlers have long been classified in this state for the purpose of taxation.

Section 9259, E. S. 1919 [Mo. St. Ann. § 13318]. “There can be no doubt but that, under well-settled principles, respondent was not bound to levy and collect a license tax upon vendors of all kinds of soft drinks, if it imposed a tax upon the vendors of any. It could in its discretion have imposed a tax upon those who engaged in selling near beers, without imposing any at all upon the vendors of other soft drinks. Carroll v. Wright, 131 Ga. 728, 63 S. E. 260; Coca-Cola Co. v. Skillman, 91 Miss. 677, 44 So. 985.” See, also, Ex parte Asotsky, 319 Mo. 810, 5 S.W.(2d) 22; Automobile Gasoline Co. v. City of St.

Louis, 326 Mo. 435, 32 S.W.(2d) 281. On this record it is not made to appear that there was not a reasonable basis for the classification adopted. The suggestion that the classification adopted offends also against the Fourteenth Amendment to the Constitution of the United States is sufficiently met by what was said on that subject in Campbell Baking Co. v. City of Harrisonville, Mo. (C. C. A.) 50 F.(2d) 670. There is a further suggestion that the ordinance is invalid because it undertook to impose a tax upon a business conducted outside of the territorial limits of the city.

The bill alleges that defendant was engaged in the city of Sedalia in conducting the business of selling and transporting gasoline, but it also alleges that it was the defendant’s duty to account for all gasoline sold by it, under the terms of the ordinance, within the state of Missouri. Considering the title of the ordinance, the general purpose expressed in it, and the limitation stated in

section 6, exempting from its operation gasoline shipped from Sedalia to other cities, towns, and villages, it is a reasonable

interpretation of the ordinance in question that it included a tax. upon dealers who, in the city of Sedalia, conducted the business of both selling gasoline and transporting it within the city, in the manner mentioned, and also upon dealers who in the city of Sedalia conducted the business of both selling gasoline and transporting it from within the city to points within the state of Missouri.

No challenge has been made of the territorial authority of the city to impose the tax upon the first class, but it is asserted that the city may not impose the tax upon the second class, because of the delivery of the gasoline outside of the city. The ordinance does not undertake to measure the tax by the transportation outside of the city of Sedalia. The right of a municipal corporation to impose a tax of this kind upon an occupation or business which is conducted within the city limits, although a portion of the business was carried on outside of the city, is generally recognized. Postal Telegraph Cable Co. v.

City Council of Charleston, 153 U. S. 692, 14 S. Ct. 1094, 38 L. Ed. 871; Western Union Tel. Co. v. City of Fremont, 39 Neb. 692, 58 N. W. 415, 26 L. R. A. 698; 37 Corp. Jur. 181; American Union Express Co. v. City of St. Joseph, 66 Mo. 675, 27 Am. Rep. 382; City of Carterville v. Blystone, 160 Mo. App. 191, 141 S. W. 701; American Mfg. Co. v. City of St. Louis, 270 Mo. 40, 192 S. W. 402. The delivery outside of the city of gasoline sold within the city did not invalidate that ordinance. This suit was brought as a suit in equity for an accounting.

There is no allegation of mutual accounts or of any other subject of equitable cognizance, but it was the theory of the bill that an accounting is authorized because it will be necessary to consider many transactions between the defendant and its customers, and to examine the books and records of carriers who transported gasoline to the defendant, and of those who sold the gasoline to defendant, as well as of those to whom defendant sold gasoline during the period in question, and because the defendant did not report all gasoline sold under the terms of the ordinance.

We agree with the trial court that these facts present no grounds for maintenance of a suit in equity for an accounting. United States v. Bitter Root Dev. Co., 200 U. S. 451, 26 S. Ct. 318, 50 L. Ed. 550; Equitable Life Assur. Soc. v. Brown, 213 U. S. 25, 29 S. Ct. 404, 53 L. Ed. 682. The decree of dismissal in each of the cases: will be reversed, with directions to transfer the causes to the law docket, and for further proceedings.