Res Adjudicata. (concurring). — There has been so much said and written about this case I fear I may be criticised for adding any additional sug- ° gestions regarding the same. But the result of this case is of such vast importance to both the city of St. Louis and the street car system, I hope I will be excused for expressing the following views:
In a nutshell there are but two legal propositions involved in this case, namely: First, were the matters and things pleaded by the plaintiff in this case adjudicated against the defendant by the Supreme Court of the United States in the case of the City of St. Louis against the United Railways Company of St. Louis and St. Louis Transit Company, reported in 210 U. S. 266; and, second, do the general taxes of $442,353.91, a property tax assessed for both State and city purposes, the special tax of $5516.25, and the franchise taxes of $149,246.17 due under ordinances granting franchises to' the various subsidiary companies of the defendant, aggregating about $600,000 for the year 1910, mentioned in the pleadings, and the mill tax imposed for the same year under ordinance No. 21087 amounting to about $200,000, constitute double taxation, or, in other *460words, do these exactions violate the commerce clause of the Constitution of the United States and the provision of the .Constitution of Missouri, which provides that taxes shall be equal and uniform upon the same classes of property? We will consider these two propositions together.
Judge Walker, in the opinion filed herein, has fairly stated the issues made and presented by the pleadings in that case in the Supreme Court of the United States, and has given a clear resume of the opinion of Mr. Justice Day delivered in the case. And since we are called upon to decide what that court decided, it will not be out of place here to quote what the learned judge in that case said were the issues involved. It reads:
“The bill seeks to enjoin the enforcement of a certain ordinance, No. 21087, in the city of St. Louis, passed March 25, 1903, alleging violation of the contract clause of the Constitution and of rights secured by the Fourteenth Amendment.”
Then after so stating the questions to be decided, the learned judge proceeded briefly to state the facts of the case, and to review the law applicable thereto, then wound up the opinion by the use of the following language:
“Applying these well-established rules to the several contracts, it will be perceived that there was no express relinquishment of the right of taxation. The plaintiff in error must rely upon some implication and not upon any direct stipulation. In each contract there was a grant of privileges, but the grant was spe: cifically in respect to the construction, operation and maintenance of a street railroad. This was all that in terms was granted. As consideration for this grant the grantees were to pay something, and such payment is nowhere said to be in lieu of or as an equivalent or substitute for taxes. All that can be extracted from the language used was a grant of privileges and a pay*461ment therefor. Other words must be written into the contract before there can be found any relinquishment of the power of taxation.
“Many State authorities have reached the same conclusion. "We will refer to some of them: Springfield v. Smith, 138 Mo. 645; Wyandotte v. Corrigan, 35 Kan. 21; State ex rel. Cream City Ry. v. Hilbert, 72 Wis. 184; Newport, etc., Ry. v. Newport, 100 Va. 157; New Orleans v. Orleans R. R. Co., 42 La. Ann. 4; New Orleans v. New Orleans R. R. Co., 40 La. Ann. 587; San Jose v. S. J. & S. C. R. R. Co., 53 Cal. 475, 481; State v. Herod, 29 Iowa, 123.
“Applying these principles to the ordinances in question we do not find in them any express relinquishment of the power to levy the license tax which is the subject-matter of this controversy. In some of them is found the language that ‘such payments are to be in addition to all taxes, as now or afterwards shall be prescribed by law.’ In one ordinance concerning consolidation of roads it is agreed, as to certain payments from gross receipts, that such ‘payments shall be in addition to all other taxes or license fees now or here-, after prescribed by law.’ In one of them is found the following language:
“ ‘ Said Lindell Railway Company shall in lieu of all payments, now required of it under any and all previous' ordinances, and such as are now, or may hereafter by ordinance passed be required of any railroad company whose tracks it is hereby authorized to acquire, etc., on the first day of (various months) pay to the city of St. Louis, etc. (various sums), which several sums said Lindell Railway Company, its successors and assigns, in consideration of the rights and privileges granted by this ordinance, hereby agrees to pay to the city of St. Louis, at the times, . . .’ etc.
“The stipulation as to the payments to be in lieu of all other payments under previous ordinances and such as- are now or may by ordinance be hereafter *462passed, etc., in this ordinance may well he referred to the special ordinances passed under the right to grant the use of the streets ‘in consideration of the rights and privileges’ therein granted, and are not designed to repeal pro tanto the section of the municipal code then in effect imposing a license fee on railway cars operated in the city.
“No ordinance contains any express relinquishment of the right to exact a license fee or tax. It is true that the city in granting the right to use the streets by special ordinance and in exercising by general ordinance the right conferred in the charter to impose a license tax upon cars is dealing with rights and privileges somewhat similar, but, nevertheless, essentially separate and distinct. In the special ordinances the city is making an arrangement with the railway company to confer the right to use the streets in consideration of certain things the company is to do by way of operation and otherwise, including, it may be, payment of fixed sums or a proportion of receipts in consideration of - the rights and privileges conferred. The city does this by virtue of its power to grant rights and privileges and control their exercise in the streets of the city, power expressly conferred in the charter of the 'city.
“In the fixing of a license tax upon all companies alike for the privilege of using cars in the city, it is exerting other charter powers. It makes provision uniformly applicable to all persons or companies using street cars. It is a revenue measure equally applicable to all coming within its terms. We do not perceive that the exercise of the power to grant privileges in the streets in making terms with companies seeking such rights, in the absence of plain and unequivocal terms to that effect, excludes the city’s right to impose the license tax under the power conferred for that purpose.
“How, then, stands the case? Is it true that because the city has required and the company has agreed *463to pay certain sums fixed in amount, or based on the receipts, for. the use of the streets, that it has thereby deprived itself of the power to exercise the authority existing at the time the ordinances were passed to license street railway cars, and m the exercise of that power to charge a license fee or tax? At the time when the several special ordinances were passed the city of St. Louis had the right under its charter to grant tbe use of the streets for the use of the company, upon the terms which are named in such ordinances. It also had authority under another provision of its charter to require a license fee on certain vehicles, including street railway cars. There was in force a section of the municipal code assessing this license charge at $25 per annum for each car. (This is the code which has been amended by No. 21087, in controversy.) It is stipulated that until the passage of the last-named ordinance the railway companies paid these license fees without objection. It is said in the opinion of the learned judge below that the tax, equal to one mill for each paid passenger, amounts to a tax of two per cent on the gross receipts, and is, therefore, an increase on what the company had theretofore agreed to pay. But the tax is not levied on the gross receipts as such, and any license tax, in whatever sum imposed, would take something from the gross receipts of the company.
“It seems to us that this case is virtually decided by the rule laid down in Railway Company v. New Orleans, 143 U. S. 192, supra, which holds that because a street railway company has agreed to pay for the use of the streets of the city for a given period, it does not thereby create an inviolable contract which will prevent the exaction of a license tax under an acknowledged power of the city, unless this right has been specifically surrendered in terms which admit of no other reasonable interpretation.
*464“We are of the opinion that an application of settled principles, derived from the decisions of this court, shows that these ordinances do not contain any clearly expressed obligation on the part of the city • surrendering its right to impose further license fees or taxes upon street railway cars, and we are of-the opinion that the learned circuit court erred in reaching the contrary conclusion and in granting a decree perpetually enjoining the enforcement of the ordinance in controversy.”
It will be observed from reading the opinion of Mr. Justice Day that, he paid no attention to the item of $442,353.91, the general tax before mentioned, which I think was correct, as it has no special hearing on the two alleged propositions here presented for determination.
Returning to the first proposition before stated: Were the matters here presented adjudicated by the Supreme Court of the United States in the case mentioned? The essence of that suit was to have the United States Courts declare ordinance numbered 21087 void and of no force or effect, because, as claimed, among other things, it violated the contract ordinances of the city with the complainants and their subsidiary companies by which they agreed to pay the special tax and the franchise taxes before mentioned to the city, and in consideration of those payments the city by implication agreed to levy no additional tax against the company during its corporate existence.
It is perfectly clear from reading the opinion of the Supreme Court of the United States in that case that it not only did decide that question against the complainants, but also decided that it was not double taxation, because as stated by that court the license tax imposed by ordinance numbered 21087 was not imposed upon the same class of property that the special tax and franchise taxes before mentioned were im*465posed. This is self-evident, for had it heen upon the same class of property then the court would have ruled in favor of the complainants, for it plainly and unequivocally states that it would have been double taxation and in violation of the city’s contract with them, and, therefore, void under the contract clause of the Constitution of the United States; that is, had this mill tax been imposed upon the same class of property that was covered by the special tax and the franchise taxes before mentioned, it would have been double taxation, and the ordinance would have been void.
While it is true the opinion of Mr. Justice Day -in that case does not consider the provisions of section 3 of article 10 of our State Constitution, referred to in complainants’ bill filed in that case, yet, by reason and analogy, it necessarily follows that the taxes mentioned therein do not constitute double taxation under our Constitution, which reads as follows:
“Taxes may be levied and collected for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general laws.”
It will be noticed that this provision of the Constitution does not prohibit the Legislature from levying taxes upon any and all classes and subjects of property within its jurisdiction, and if the property upon which the franchise and mill tax are imposed as before mentioned, are different classes or subjects of property, as the Supreme Court of the United States held in that case, then it cannot be truthfully stated that such taxes constitute double taxation within the meaning of the State and Federal constitutional provisions mentioned. Not only this, the defendant in this case has uniformly recognized the validity of this class of taxation, for it has at all times been paying to the city of St. Louis the $25 per car tax without objection, which is a part *466of said franchise tax, and it must be conceded that the mill tax here involved stands upon precisely the same footing as that tax rests upon.
. Suppose instead of enacting this' Mill-Tax Ordinance the city had amended the $25 tax ordinance by increasing the amount from $25 to $50 per car, or any other sum which would equal in amount the mill tax mentioned, could it then be said that it would be invalid because the tax was not uniform on all classes of property, or, in short, that it would be double taxation? Certainly not.
It is, therefore, clearly to be seen that the Supreme Court of the United States held the special and franchise tax ordinances were valid contracts between the city and the company, and that said ordinance No. 21087 was valid because the tax imposed by it was not against the same class of property that was imposed by said special and franchise tax ordinances. In other words, one was a franchise tax, and the other was a license tax.
I, therefore, concur in the majority opinion.