Opinion letter to the Honorable Donald L. Manford

JOHN C . DANFORTH A.TTORNt;Y 0£NCRAL OFFICE!') 01-' TilE ATTORNEY G:ENE 1RAL OF JiHiSOUlRI JEFFEU!iOX CITY March 25, 1974 OPINION LETTER NO . 22 Answer by Letter - Boicourt Honorable Donald L . Manford State Senator , 8th District 1000 Commerce Building Kansas City, Missouri 64106 FILED Dear Senator Manford : You have requested an official Attorney General ' s Opinion on the following legal questions: "Do mil itary personnel assigned to active official duties within and who reside within (off of base tac1lities) ~nd those ~~ho are not residents of Kansas crt;Y, Missouri, or a resident of the State of Missouri elsewhere , have to purchase ' city stickers ' for their motor vehicles." [Emphasis yours . ] We have requested, and received , from the Office of City Counselor of Kansas City, Missouri , the e nclosed advisory opinion . We refer you to the conclusions made by the Kansas City City Counselor' s Office . In that Kansas City has taken the position that it will not require service men on active duty to pay city motor vehicle license taxes or to display city motor vehicle stickers , we believe that it is unnecessary for this office to prepare a formal written opinion responding to your request . In effect , the Kansas City City Counselor has totally resolved the issues raised in your opinion request. Enclos ure Sincerely~ ~ ~L. e~~ JOHN C. DANFORTH Attorney General City of Kansas City, Missouri Heart of America Honorable C. B. Burns , Jr. Assistant Attorney General State of Missouri Office of City Cc. .. mselor 28th Floor, City Hall Kansas City, Missouri 641 06 February 1 , 1974 Jeffe rson City , Missouri 65101 Re: City Vehicle Licenses - Members of Armed Forces - Legal Opinion Dear Mr. Burns: 816 274 2512 This advisory opinion is directed to the following question , submitted to your office by Senator Don Manford: "Do military personnel assigned to active official duties within and who reside within (off of base facilities) and those who are not residents of Kansas City , Missouri, or a resident of the State of Missouri elsewhere , have to purchase 'city stickers ' for their motor vehicles?" I. ONLY RESIDENTS OF KANSAS CITY WHO ARE OWNERS OF MOTOR VEHICLES ARE REQUIRED TO PURCHASE CITY VEHICLE LICENSES . Section 301.340 , R.S.Mo. , authorizing municipalities to levy and collect license taxes from owners of and dealers in mot or vehicl es , by its own terms limits that authority to those "residing in such municipalities " . This language has been uphe l d, in its common meaning , in Frankford v. Davi s , App. 1961, 348 SW2d 553 , Sikeston v . Marsh, App. 1938 , 110 SW2d 1135 , and Fredericktown v. Hunt er , App . 1955 , 273 SW2d 732. Accordingly , military personnel , like others , are not subject to city licensing requirements , if they are non- residents of the city. In this connection , compare Section 301.020 , R. S .Mo. , relating to State registration , requiring every owner of a motor vehicle which shall be operated or driven upon the highways of this state , except as otherwise expressly provided in the statute, to apply for state registration, and Section 301.271, excepting from the requirement non-resident owners of vehicles displaying the plate issued in the place of residence of the owner, to the extent that such state extends substantially equivalent exemptions to Missouri residents for the operation in that state of vehicles r egistered in Missouri. Under this act , not only residents , but non-residents not exempted by the reciprocity clause , are required to register their car in Missouri and pay the fees therefor. II . SERVICEMEN ON ACTIVE DUTY , LIKE OTHER NON-RESIDENTS OF THE CITY, MAY ESTABLISH A RESIDENCE IN KANSAS CITY, BUT THE MEASURE OF THE PROOF OF THAT FACT REMAINS UNCLEAR. Generally, residence or domicile is determined by the coin- cidence of being present in a jurisdiction with an intention to make such jurisdiction one's permanent home. There appears to be no reason why a serviceman, like any other non-resident, may not assume, as his permanent domicile , the jurisdiction in which he is physically located. The measure of the proof required with respect to a serviceman , however , remains unclear . In Dameron v. Brodhead, USSC 1953 , 355 US 322 , 97 L. Ed . 1041, 73 s. Ct . 721, 32 ALR2d 612, the serviceman , claiming domicile in Louisiana where he remained a registered voter , was assigned duty in Colorado , where he lived in a rented apartment. The Court sustained his exemption under the Soldiers' and Sailors' Civil Relief Act , from the exaction of personal property taxes, although he had paid none in his home state . Obviously , the Act could not have applied had he become a resident of Colorado. In Woodroffe v. Park Forest, (DC Ill. 1952) 107 F. Supp . 906, the serviceman, assigned duty in Chicago , had resided in rented housing for more than three years , and had voted in a Park Forest school election in which the statutes provided only residents of the state were permitted to vote . He claimed residence in Pennsylvania , first at the home of his parents whence he had been recalled to active duty, then in that state at the home of a boyhood friend, where he visited two or three times a year , received mail, always had a room available to him. He filed his federal income tax returns , maintained his bank account , and obtained state car plates in Pennsylvania , and from that state had received a soldier ' s bonus in 1950 . In this action , involving city vehicle license plates , the Court sustained the non-taxa- bility (and non-residence) of the serviceman . Thus , the measure of proof remains unclear. When military records indicate maintenance of the domicile elsewhere, in my opinion this would , under the Soldiers ' and Sailors ' Civil Relief Act , constitute prima facie evidence of non-residency , subject to rebuttal by facts to the contrary. Registration of the vehicle in Missouri would probably not be material, for reasons -2- indicated herein , infra , but local voting registration , estab- lishment of a local business , and expression of an intent to remain permanently, would be. It is doubtful that the burden of developing such evidence would be justified by the fees thus collected , particularly in view of comments , infra, concerning the measure of the fee legally collectible . III. THE PROTECTION OFFERED SERVICEMEN BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT APPLIES TO CITIES AS WELL AS STATES. Sec. 514 of the Act (Sec. 574 , Title 50 Supp. , USCA) , pro- vides, in part: "For the purposes of taxation in respect of any person , or of his personal property ••. by any State, Territory, possession, or political subdivision of any of the fore - golng, suc~person shall not be deemed to have lost a residence or domicile in any State, Territory , possession, or political subdivision of any of the foregoing .•. solely by reason of be1ng absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in , or to have become resident in or a resident of , any other State , Territory, possession, or political subdivision of any of the foregoing , •.. while , and solely by reason of being, so absent. For the purposes of taxation in respect of the personal property, ... of any such pe r son by any State, Territory, possession , or political subdivision of any of the foregoing, •.. of which s uch person 1s not a resident or in which he is not domiciled , ••. personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession or lolitical sub- division , . .. Where the owner of persona property-r5 absent from his residence or domicile solely by reason of compliance with military or naval orders, this section applies with respect to personal property, or to the use thereof , within any tax jurisdiction other than such place or residence or domici~e , regardless of where the owner may be serving in compliance with such orders: Provided , That nothing contained in this section shall prevent taxation by any State, Territory, ~ossession or political subdivision of any of the forego1ng ..• in respect of personal property used in or arising from a trade or business , if it otherwise has jurisdiction • .. "When used in this section , (a) the term 'personal prop- erty ' shall include tangible and intangible property (including motor vehicles) and (b) the term 'taxation' shall include but not be limited to licenses , fees , or excises imposed in respect to motor vehicles or the use -3- thereof: Provided , That the license , fee , or excise required by the St a t e , Territory , possession or Dis- trict of Columbia of which the person is a resident or in which he is domiciled has been paid." It is worthy of no t e , a t this point , that with respect to l i censes , fees or e xcises with respect to motor vehicles or their us e , the prohibition applies to States and to their subdivisions, while the proviso relating to the registration of motor vehicles in the place of domicile applies only to the State , and not to any subdivision thereof. Clearly , failure of a serviceman to regis ter his vehicle in the state of his domicile may give the host stat e the right to r equire registration , but failure to regis t e r the vehicl e in the city of his domicile appears to be immaterial. In Whitin~ v. Portsmouth, S . Ct . App . Va. 1961 , 202 Va. 609 , 118 SE2d SOS , efendant was fined for failure to register and lice nse his vehicle in the Cit y of Portsmouth . He purchased his car in Virginia , and registered it there under Virginia statutes . He was in Portsmouth on naval assignment, claimed Colorado as his domicile , but stated he planned to purchase property and r eside in t-1ississippi upon his retirement from the service . The city lice nse fee was a flat fee of $10 . 00. State law empowered cities t o charge license fees for motor vehicles; it does not appear whether t he enabling act restricts the power to residents; but the ordinance requires every person having a place of residence in the City to pay the annual tax. In sustaining the conviction, the Court concluded that , since defendant had not paid a State license tax in the state of his residence , and since the license t a x involved was not a property tax , but an excise tax assessed for the privilege of using the car on the streets of the city, he was not e xempt under the Act. Note that this case is appar- ently criticized in California v. Buzard , infra . In Stephenson v. Curtis, Sup. Jud . Ct. Me. 1968 , 238 A2d 613, the State imposed a fla t state registration fee of $15.00 , but made payment of city taxes a prerequisite to state r egistration. The city fee was an excise for the privilege of operating the vehicle on the public ways , and , being based upon value of the vehicle, reflecting list price and year , was in lieu of personal property taxes on the car . The action was brought by a number of military personnel stationed in Maine who desired to register their cars with the stat e without payment of the required city taxes . In sustaining their position , the Court noted that the entire proceeds went to the general revenues of the cities, and in no way served to enforce registration and licensing statutes , and held that the city tax partook of the nature of a property tax within the scope of the Soldiers ' and Sail ors' Civil Relief Act , but , for other purposes , remained an excise tax . These cases leave the l aw unclear as to the legality of im- posing a city vehicle license fee ; at the most , it may be said -4- that such fees may be levied as a part of the delegated power of the State , providing such fees , taken together with state registration fees, are otherwise in accordance with the pro- visions of the Act. Certainly , municipalities could have no greater powers than the states which created them. IV. LEGALITY AND MEASURE OF VEHICLE LICENSE FEES OF STATES . In California v. Buzard, USSC 1966 , 382 US 386 , 86 S. Ct. 478, 15 L. Ed2d 435, defendant , a resident of the State of Washington , was on duty in California. While on temporary duty in Alabama , he purchased a car and r egistered it there. He did not register it in Washington , which r equired registration only as a prerequisite to use upon the state highways of that state. California sought to require its registration under its law , which required , first , a flat fee of $8.00 , and , second , as a prerequisite to registration , a further license fee equal to 2 percent of the market value of the car , imposed in lieu of ad valorem taxes. Defendant offered to pay the $8.00 , but was refused r egistration for failure to pay the 2 percent tax. His convic t ion for failure to register was reversed by the California Supreme Court , which held that , under the Soldiers' and Sailors' Civil Relie f Act, defendant had paid fees then "required" by the State of Washington , although none were then "required." The u. s. Supreme Court reversed the California Supreme Court decision , noting that Congress was concerned that service- men should not drive unregistered or unlicensed cars , that every state requires r egistration and license plates, and that the words in the Act, "required by" , were equivalent to license fees "of the " state of residence. Therefore , the Court held that a servicemen who has not registered his car and obtained plates under the laws of his home state, for whatever reason , may be required by the host state to r egister and license the car under its laws . The Court also considered the measure of the fee , noting that a few states , like California, had fees based in part upon the value of the car , but that most based the fees on horsepower (as in Missouri) or upon weight or displacement. see footnote on p . 4 4 2 , note 8 . The Court concluded that the license, fee or excise imposed in r espect to motor vehicles or the use thereof , in the absence of payment of like exactions imposed by the non-resident service- man's home state , refers only to those taxes which are essential to the functioning of the host state's licensing and registration laws, and that the test of the measure of the fee is whether the inclusion thereof in the federal immunity would deny the host state power to enforce the nonrevenue provisions of the state motor vehicle legislation. Thus , the Court held the serviceman immune from the 2 percent tax , being in the nature of an ad valorem tax, and made no specific ruling with regard to the -5- valorem tax, and made no specific ruling with regard to the $8.00 exaction , as to whether it was necessary to enforce non- revenue provisions of the California act, in the absence of a State Supreme Court decision on that point. See footnote 11, p. 443. The u. S. Supreme Court commented on the Buzard decision in Sullivan v. United States, 1969 , 395 US 169 , 89 S. Ct. 1648 , 23 L. Ed2d 182 , 1nvolving a different type of tax , stating: "The Court held in Buzard that sec . 514 exempted servicemen from the Cal1fornia tax on automobiles , not because it was an excise tax on use covered by subsec- tion (2) (b)~ut rather because it was not such a tax. The so-called 1 license fee • there in question was an annual tax in the amount of 2 percent of the assessed market value of the car - a levy which was indistinguish- able from the annually recurring ad valorem taxes that Sec. 514 was designed to cover . " (Emphasis the Court•s.) v. NATURE OF MISSOURI REGISTRATION FEE STATUTE. In State ex rel McClung v . Becker, bane 1921, 233 SW 54 , the Missouri Supreme Court noted that Sec . 7604 of the Revised Statutes of 1919 provided that all registration fees from motor vehicles shall be paid to the treasurer for the benefit of state road funds, less the cost of administering the provisions of the chapter related to motor vehicles , and on this basis , found that that Sec- tion was avowedly a revenue measure. Sec. 301 . 090, R.S.Mo., now provides that all fees for regis- tration of motor vehicles shall be deposited with the state treasurer to the credit of the State Highway Department fund. As to the effect of the Soldiers • and Sailors• Civil Relief Act on state registration fees , under the 1919 law , where the exaction was avowedly in excess of the amount required to administer the nonrevenue provisions of the law, Missouri •s registration fees could probably not have been imposed upon servicemen , under the Act, at least not in excess of the cost of administering the non- revenue portions , under the law as announced in McClung and Buzard. With respect to the present law , Missouri appears to be in the same position as California with respect to its $8 . 00 flat regis- tration fee, since the Courts of neither state have made any find- ing , under these laws, as to the amount of the fee required for administration of nonrevenue features of their registration laws . VI. NATURE OF KANSAS CITY VEHICLE LICENSE FEES. While no Court ruling has been made with respect to the por- tion of city license fees required to administer the nonrevenue -6- provisions of the ordinance , I note that , under the program , the City does issue numerical stickers and maintain files reflecting identification of the car and its owner through sticker numbers , which may be a nonrevenue function , or may be merely a control to require payment of license fees and ad valorem taxes on the vehicles . Whatever the nature of the function , the Finance Department has advised me that the City r eceives income amounting to $1,600 , 000 to $1 ,700,000 from city stickers , and that the cost of administering the city sticker program is from $80 , 000 to $100,000 annually. On these facts, it would be difficult to sustain the entire exaction , or even a major portion of it , as necessary to whatever nonrevenue functions the City may engage in through its licensing ordinance. CONCLUSION 1. Persons who are not residents of Kansas City , whether in the military service or not , and without respect to whether they live on or off base facilities , and without respect to whether they are residents of Missouri elsewhere , may not be required to purchase city stickers for their cars . 2. Non-residents of the City , by their affirmative actions , whether in the mili t ary service or not , may become residents of the City. 3. Mili t ary records of servicemen physically residing in the City , which show that they maintain their domicile outside the City , are prima facie evidence of such domicile at the place so stated. 4. The prima facie presumption is rebuttable , but the measure of proof of City r esidency is uncertain , and the time and expense involved in marshalling evidence for such r ebuttal is probably not justified by vehicle license fees that might be produced thereby. 5. The measure of a city sticker fee permitted by law in the case of a non-resident serviceman electing to register his car in Missouri probably is limited to the cost of administering the nonrevenue provisions of the City ordinance , and City ordi- nances now in effect fail to provide for any such reduced rate for non- resident servicemen . 6. When enforcement procedures , such as the "dawn patrol", (which tickets cars bearing Missouri plates but no city stickers in pre-dawn checks of apartment house parking lots , etc.), and such as tickets issued by the Police Department (to drivers of cars bearing Missouri plates but no city stickers and the driver ' s license indicates a residence address in Kansas City) , result in the ticketing of servicemen ' s cars under circumstances in -7- which, under this opinion , the City has no authority to require the fee to be paid, such tickets should be dismissed administra- tively, and , if possible , without requiring the serviceman in- volved to make a court appearance. Coordination between the City Prosecutor and local military authorities is r ecommended . Approved : ~~ Aaron A:W1 son City Counselor LBS :vh ~a~~~v Larry B. Saunders Associate City Counselor cc : Robert A. Kipp, City Manager John M. Urie , Director of Finance Lawrence B. Bennett , Commissioner of Revenue Louis w. Benecke , City Prosecu tor - 8-