Stegmann v. Weeke
| Decision Date | 05 July 1919 |
| Docket Number | 21,152 |
| Citation | 214 S.W. 137,279 Mo. 140 |
| Parties | FRED STEGMANN et al., Appellants, v. HENRY L. WEEKE, Commissioner of Weights and Measures of City of St. Louis |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Vital W. Garesche Judge.
Affirmed.
Edward W. Foristel, Taylor R. Young and T. T. Hinde for appellants.
(1) Courts have jurisdiction to enjoin the enforcement of an illegal ordinance. Coal Company v. City of St Louis, 130 Mo. 323; Union Cemetery Assn. v. Kansas City, 252 Mo. 466; Jewel Tea Co. v. City of Carthage, 257 Mo. 383; Hays v. Poplar Bluff, 263 Mo. 516. (2) Sections 22 and 23, both original and amended, are not in harmony with the constitutional and statutory State provisions, and for that reason are illegal and void. St. Louis v. Meyer, 185 Mo. 593; Peterson v. Railroad, 265 Mo. 497; Sec. 9582, R. S 1909; St. Louis v. Bernard, 249 Mo. 56; St. Louis v. Dreisoerner, 243 Mo. 223; Hays v. City of Poplar Bluff, 263 Mo. 516; Union Cemetery Assn. v. Kansas City, 252 Mo. 466; St. Louis v. Worlds Pub. Co., 270 Mo. 146; St. Louis v. King, 226 Mo. 334. (3) As to appellants, the ordinance is beyond the police power of the city to enact, unreasonable and oppressive, and for that reason void under all the authorities above cited. (4) Appellants did not have an adequate remedy at law. Coal Company v. City of St. Louis, 130 Mo. 323; Jewel Tea Company v. Carthage, 257 Mo. 383.
Charles R. Daues and H. A. Hamilton for respondent.
(1) By its charter the City of St. Louis is expressly invested with power to inspect, test, measure and weigh any article of consumption within said city, and to establish, regulate, license and inspect weights and measures. Charter, art. 1, sec. 1, 27; Charter, art. 1, sec. 1, 28. (2) The ordinance in question having for its purpose the protection of the inhabitants of the City of St. Louis against false weights and measures, is a valid exercise of the police power of said city and is not obnoxious to any provision of the State or Federal constitutions. Sylvester Coal Co. v. St. Louis, 130 Mo. 323; State ex rel. v. Merchants Exchange, 269 Mo. 346; Chicago v. Schmidinger, 243 Ill. 167; Schmidinger v. Chicago, 226 U.S. 578; People v. Wagner, 86 Mich. 594. (3) The City of St. Louis being authorized to establish and regulate weights and measures, may prescribe the form and dimensions of the container in which articles of consumption are marketed in said city. Turner v. State, 55 Md. 240; Turner v. Maryland, 107 U.S. 38. (4) Ordinance No. 29795, as amended, does not conflict with the Constitution or statutes of the State of Missouri, but is in complete harmony therewith. (5) The Municipal Assembly of St. Louis is vested with the power of determining the necessity of regulating business in said city, and courts will not ordinarily review the exercise of its discretion. An ordinance passed in the exercise of legal authority will not be declared void on the ground of unreasonableness unless no difference of opinion can exist upon the question, and a clear case must be made to authorize a court to interfere on that ground. St. Louis v. Weber, 44 Mo. 547; Gratiot v. Missouri Pacific Railroad Co., 116 Mo. 450; Chillicothe v. Brown, 38 Mo.App. 609; Kansas City v. Sutton, 52 Mo.App. 398; Monett v. Campbell, 204 S.W. 32.
WHITE, C. Railey, C., not sitting; Mozley, C., concurs. Williams, P. J., and Walker, J., concur; Faris, J., concurs in separate opinion.
This is a companion case to No. 21,151 of the same title. Many facts pertinent here are fully set out in the opinion in that case and it may be read in connection with this case. However, for convenience, it is proper briefly to restate some of them. That was a suit brought by plaintiffs as farmers and truck gardeners, to restrain the Commissioner of Weights and Measures of the City of St Louis from enforcing a certain ordinance, No. 29,795. In that case the circuit court, on a preliminary hearing for the purpose of determining whether a temporary restraining order should be issued, dismissed the bill without a final hearing on the merits of the case.
The ordinance complained of, enacted August 9, 1917, provided for a bushel box, and boxes holding fractions of a bushel, in which produce, fruits and vegetables should be marketed, of a cubical content in excess of the statutory bushel as provided by Section 11961, Revised Statutes 1909, and by the Federal statute. The plaintiffs were using as a bushel box one containing less cubical contents than the statutory bushel. After that case was heard and before its determination the City of St. Louis amended the ordinance so as to make it accord with the statute of Missouri and the Federal Statute. When that was done and the former case dismissed, the plaintiffs brought this suit to enjoin the enforcement of the ordinance as amended. In their petition in this case they set out the original ordinance enacted August 9, 1917, in full, and the amendment to the same made in April, 1918.
They allege that they are farmers and gardeners and market their produce either to commission merchants, retail grocers or hucksters; that their produce is packed in wooden boxes, or crates, before being loaded, and in loading the boxes are packed in tiers and so arranged that the bottom tier is protected from upper tiers; that in capacity said boxes or crates range from three-fourths of a bushel, standard measure as defined by statute, to a bushel, and are used by all truck gardeners in the vicinity where plaintiffs grow their produce; that they have been used for twenty-five years in that manner and are peculiarly suited to the economical and safe delivery of produce; that the plaintiffs and other truck gardeners and farmers have on hand, complete to be used, 1,875,000 of such boxes, which cost them in the neighborhood of $ 350,000; that their delivery trucks are especially designed to conform to the size of said boxes and crates; that the produce which they sell is neither bought nor sold by the bushel but, by special agreement between the sellers and purchasers, it is sold by the box or crate and the purchasers from plaintiffs are not in any manner misled or deceived as to the capacity of the boxes in which the produce is sold; that they deliver their boxes full to the purchaser and receive in return in each case empty boxes of the same size and character from the purchaser.
Upon the filing of this petition and a bond in the sum of one thousand dollars, duly approved, a temporary restraining order was issued and served upon the defendant Weeke, who was ordered to show cause on a certain day why the injunction should not issue. Thereupon the defendant filed his return in the nature of an answer to the allegations of the petition. Afterwards the parties filed a stipulation as to certain facts, wherein they agreed that the case might be submitted "for final adjudication upon the petition of the said return of the respondents, to be taken and construed as an answer thereto, and the reply of the plaintiffs filed on that date, together with certain stipulations of facts." The court thereupon heard the case upon its merits, found the issues in favor of the defendant and dismissed the bill, and from that judgment the plaintiffs appealed to this court.
Ordinance No. 29,795, in its original form provided, among other things, the duties of the Commissioner of Weights and Measures to test the accuracy of weights and measures and to seize in the name of the city, "all false weights, measures and scales, and to make arrests of persons violating the ordinance by using false weights and measures and scales." It provided for inspection of all weights and measures examined, and penalties for persons having weights and measures in their possession, for refusing to allow them to be tested and examined, and for using weights and measures that are not tested; that the commissioner should mark "condemned" weights, measures, standards, etc., that did not conform to the standard in this State, and that it should be a misdemeanor to use a weight or measure containing a less quantity than represented.
Section 22 of that ordinance fixed the dimensions for standard boxes to hold bushels, half-bushels, and other fractional parts of a bushel, making the cubical contents of such boxes greater than the statutory requirements. Section 23 of the ordinance provided for a fee of ten cents each for inspection of such boxes, that they should be inspected once a year, and that it should be a misdemeanor for anyone to use boxes of other dimensions for the purpose of selling fruits or vegetables. Those were the sections struck at in the other suit.
By the amendment of April, 1918, sections 22 and 23 of the ordinance were made to read as follows:
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