Wonner v. City of Carterville
| Decision Date | 07 February 1910 |
| Citation | 125 S.W. 861,142 Mo.App. 120 |
| Parties | HENRY WONNER et al., Respondents, v. CITY OF CARTERVILLE et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--The respondents in this case are the proprietors of several bakeries located in Joplin and Webb City, Missouri, and were doing business in the city of Carterville at the time this suit was instituted by means of wagons which daily visited the town, driving over the streets and selling bread to the inhabitants and taking orders for bread within the city limits. No place of business was maintained by them within the town nor were the teams and wagons kept in the town except when being used there during the day. The drivers of the wagons had no interest in the business of respondents. The drivers for the several respondents were arrested and rearrested by the authorities of the city of Carterville under an ordinance which is as follows:
. . . .
Neither the employers nor the employees had a license as required by the above sections. Upon each arrest, the driver was compelled to give bond. Respondents filed suit for an injunction in the circuit court of Jasper county and a temporary restraining order was issued. Later, appellant filed a motion to dissolve the temporary restraining order, which upon a hearing was overruled, and the temporary injunction was thereupon made perpetual. Motions for new trial and in arrest were filed, and these being overruled, the city of Carterville has perfected its appeal to this court. It is assigned as error that the trial court committed error in making a finding for the respondents.
Judgment reversed and cause remanded.
Abernathy & Bates and W. R. Robertson for appellants.
(1) If a city could lawfully exact of bakery wagons a license fee, it could properly, as a means of enforcing an ordinance therefor, make it an offense for an employee of the owner of such wagons to use it within the city when no license fee had been paid therefor. City of Troy v. Harris, 102 Mo.App. 60; Kansas City v. Smith, 93 Mo.App. 217. (2) The imposition levied upon vehicles, under sections 5978 and 5979, Revised Statutes 1899, is not upon, or in any manner governed by, the business, or its location, in which the vehicle is used, except as the business may be referred to for the purposes of classification of vehicles. The imposition is solely for the use of the streets by vehicles and not as a license for or a tax on the business. St. Louis v. Wetzel, 130 Mo. 619; St. Louis v. Green, 7 Mo.App. 468, 70 Mo. 562; Kansas City v. Richardson, 90 Mo.App. 457; St. Louis v. Woodruff, 71 Mo. 92; Kansas City v. Smith, 93 Mo.App. 217; Farmington v. Rutherford, 94 Mo.App. 334; Aurora v. McGannon, 138 Mo. 38; Lancaster v. Biggs, 118 Mo.App. 574; Tomlinson v. Indianapolis, 144 Ind. 142, 43 N.E. 9, 36 L.R.A. 413; 28 Cyc., 732. (3) Section 5978, Revised Statutes 1899, expressly confers the power on cities of the fourth class to regulate and license and to levy and collect a license tax on carts, with bakery wagons included within its definition, and upon ice-wagons to which class bakery wagons belong. See Webster's definition of "Cart." Kansas City v. Richardson, 90 Mo.App. 461; St. Louis v. Herthel, 14 Mo.App. 467, 88 Mo. 128; Kansas City v. Vinquest, 36 Mo.App. 584; St. Louis v. Bell Telephone Co., 96 Mo. 629; Bank v. Ripley, 161 Mo. 131.
Geo. V. Farris, W. J. Owen and H. W. Currey for respondents.
(1) The plaintiffs as manufacturers could sell the products of their bakeries without violating any ordinance of the city. Joplin v. Leckie, 78 Mo.App. 8. (2) Section 5978, Revised Statutes 1899, does not expressly give cities of the fourth class power to levy license tax on "bakery wagons," the power to license "bakery wagons" is not fairly implied in, or incident to the expressly granted powers; neither is the power to tax "bakery wagons" indispensable to the objects and purposes of the corporation and, hence, the ordinance taxing "bakery wagons" is void for want of power in the city to pass such ordinances. All reasonable doubts as to the existence of the power must be solved against the city. Independence v. Cleveland, 167 Mo. 384; O'Dell v. Scranton, 126 Mo.App. 37. (3) As the city cannot levy a tax on the bakeries--these manufacturers--because they were outside its territorial limits, it could not tax the employees or the wagons by means of which the manufactured articles were sold in Carterville. Troy v. Harris, 102 Mo.App. 51; Express Co. v. Rose Co., 124 Ga. 581; 53 S.E. 185, 5 L.R.A. (N. S.) 618; Rogers v. Saundersville, 57 S.E. 557. (4) The case made shows that the city of Carterville was using its police power to oppress citizens; that the plaintiffs had no adequate remedy for the wrong done them by an action for damage, and that a great number of suits had been, and were about to be begun, against them. In such case injunctive relief will be granted. Coal Co. v. St. Louis, 130 Mo. 329; Bottling Co. v. Watson, 30 S.E. 270; Carpenter v. Realty Co., 103 Mo.App. 480.
Gray, J., not sitting.
NIXON, P. J. (After stating the facts).
I. It is claimed by respondents as a reason in support of the judgment of the trial court that they were not subject to the license tax levied because their business was not within the territorial limits of the city of Carterville.
It is true that, according to the terms of the ordinance, the trades, businesses and avocations subject to the license, must be carried on within the city of Carterville, and the ordinance does not authorize the levy of any tax on any trade or business outside of the city. It goes without saying that if the ordinance had undertaken to levy a license tax on the business of respondents transacted outside the city, it would have been wholly ultra vires. And since it is true that the bakeries of respondents were in Joplin and Webb City and outside the limits of the city of Carterville, their bakeries as such could not consequently have been made subject to a license tax levied by the city of Carterville as a bakery is a place where bakery products are made and sold. The city authorities made no attempt to enforce their ordinances against the respondents because they did not take out a license on their bakeries. The ordinances were leveled against the use of the bakery wagons on the streets of the city; and although these wagons belonged to the respondents, as well as the horses and entire outfit, and although the drivers were employed by the respondents, still the business of the sale of the products of respondents' bakeries was carried on within the city of Carterville, and according to the admissions in the record, these wagons were used in the business of plying the trade on the streets of Carterville, making regular trips loaded with bakery products to be sold from these wagons to customers or dealers, regularly traveling from house to house, selling and taking orders.
We do not doubt that under such circumstances, these wagons were being run in the city of Carterville for the purpose of carrying on the business of respondents within said city, no matter where the owners may have resided. The running of these wagons under the circumstances was within the scope and purview of the ordinances of the city of Carterville. It would seem that express provision was made to prevent the evasion of the ordinances by section 311 providing that no...
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