Hagerman v. City of St. Louis, 44557

Citation53 A.L.R.2d 1423,365 Mo. 403,283 S.W.2d 623
Decision Date12 September 1955
Docket NumberNo. 2,No. 44557,44557,2
Parties, 53 A.L.R.2d 1423 Lewis B. HAGERMAN and Herman Sparber, Respondents, v. CITY OF ST. LOUIS, a Municipal Corporation, Joseph T. Hayden, License Collector of the City of St. Louis, Missouri, Jeremiah O'Connell, Chief of Police of the City of St. Louis, Missouri, and John M. Dalton, Attorney General of the State of Missouri, Appellants
CourtUnited States State Supreme Court of Missouri

Samuel H. Liberman, City Counselor, Charles J. Dolan, Associate City Counselor, Thomas F. McGuire, Asst. City Counselor, St. Louis, for appellants. John Grossman, St. Louis, for respondents.

BOHLING, Commissioner.

Lewis B. Hagerman and Herman Sparber, licensed auctioneers of the city of St. Louis, instituted this action for a declaratory judgment and injunctive relief to test the constitutionality of St. Louis ordinance provisions regulating the 'retail auction sales of jewelry, watches, clocks or silverware.' The trial court held the provisions unconstitutional and void. The plaintiffs pleaded that the questioned ordinance provisions contravene Sec. 40(30), art. III, Mo.Const.1945, V.A.M.S., prohibiting special laws (the section applies to city ordinances--McKaig v. Kansas City, 363 Mo. 1033, 1036, 256 S.W.2d 815, 816), and Sec. 1, 14th Amend. U.S.Const. (sic): 'which, among other things, provides that no state shall make or enforce any law which shall deny to any persons within its jurisdiction the equal protection of the laws'. The city contends said provisions are a valid exercise of its police power. The case is of first impression.

The provisions here involved are Secs. 19-24 of ordinance 46591, approved April 10, 1953, amending Chapter 7, Secs. 1-20, Revised Code, City of St. Louis, 1948, p. 237, relating to Auctions and Auctioneers. Certain of said Secs. 1-20, which plaintiffs comply with and do not question, are material to the instant issues. Judicial sales or sales by executors or administrators are specifically exempted from certain provisions. Sections 6-11, 14, and 18 are immaterial here. We quote or state the substance of the material provisions.

Section 1 defines certain terms: (a) Auction crier. One who assists a public auctioneer. '(b) Fill in stock. Merchandise added to the stock on hand with the intention of selling it at public auction. (c) Public auctioneer. Any person who shall arrange for the disposal of any goods, wares, merchandise, fruits, stocks, bonds and other securities, livestock or other personal property, or any real estate * * * in any building * * *, or in any other place in the city at public offering * * *, either in person or by duly employed and licensed auction criers * * *. (d) Stock on hand. Any merchandise that a merchant usually and ordinarily carries throughout the year' and not acquired for sale at public auction.

Section 2 requires a license as a public auctioneer to auction 'any property, whether the same shall be his own property or the property of others.'

Section 3. Applicants for license as public auctioneer must state in writing, among other things, the length of time of residence in Missouri and in the city as a licensed auctioneer or crier, or retail or wholesale merchant; the auctions conducted in the city within two years; a general description of the merchandise to be auctioned, its owner and place of the auction.

Section 4 authorizes, upon proper application, the issuance of a license if the applicant has been a resident of the state and continuously engaged in business in the city for one year next prior to the application as a licensed public auctioneer, or licensed auction crier, or as a retail or wholesale merchant; gives other information required by the license collector, pays the license fee, and gives an approved bond.

Section 5 requires the applicant to tender a $3,000 bond before any license be issued to a public auctioneer, with a surety company authorized to do business in Missouri as surety; said bond to be payable to the city and conditioned upon the principal paying all losses and damages occasioned by any material misrepresentation of fact or belief or any suppression of fact concerning any property sold at auction or any violation of said Chapter 7.

Section 12. The license collector may investigate any part or all of the property before or after issuing the auctioneer's license.

'Section 13. False statements by auction crier. It shall be unlawful for any person acting as auction crier to make any statements which are false in any particular, or which have a tendency to mislead any person present, or to make any misrepresentation as to the quality, quantity, character present condition, value, cost, general selling price, or whether new or secondhand of any property offered for disposal by auction sale.' Auction criers may not sell any 'fill in' acticle without first stating such fact in a clear audible voice to all persons present.

Section 15 makes it unlawful to auction any 'fill in' article unless every advertisement of the auction clearly and unequivocally states that fill in merchandise has been added to the 'stock on hand.'

Section 16 requires the owner of auctioned property to give every purchaser at a price of $2.50 or more 'an invoice, containing a full description of the article, its selling price and a statement giving each and every warranty under which the article was sold.'

Section 17 provides for the revocation of any license for cause.

Section 19 prohibited 'any retail auction sale of jewelry, watches, clocks or silverware at any time during the month of December.'

Section 20 was the penalty section.

On November 13, 1951, Sec. 19, supra, prohibiting the sale of jewelry etc. during the month of December, was held to contravene Sec. 40(30), art. III, Mo.Const., V.A.M.S., and the 14th Amend., U.S.Const. in Morgans Credit Jewelry Company, Inc. v. City of St. Louis, et al., in the Circuit Court of the City of St. Louis, which judgment became final.

Thereafter, on April 10, 1953, ordinance 46591, relating to 'retail auction sales of jewelry, watches, clocks and silverware,' was passed. (For convenience, unless otherwise indicated the word 'jewelry' refers to jewelry, watches, clocks or silverware.) It amended said Chapter 7 by repealing Secs. 19 and 20, supra, and adding Secs. 19-25 to said Chapter. Section 25 re-enacted the penalty provisions. Sections 19-24, here in controversy, are to the following effect.

Section 19 makes it unlawful to conduct 'any retail auction sale of jewelry, watches, clocks or silverware, at any time during the months of June and December in any year.'

Section 20 makes it unlawful to conduct 'any retail auction sale of jewelry * * *, unless the person or firm whose stock is being offered for sale at auction shall have been in the retail jewelry * * * business at the location and in the premises at which said auction sale is to be cried for at least one year next before the commencement of the said auction sale, and shall not have conducted an auction sale at any time within said one year period at said location or on said premises.'

Section 21 makes it unlawful to conduct a 'retail auction sale of jewelry * * * over a period of more than 15 days,' and 'between the hours of 6 p. m. and 8 a. m. the following day.'

Section 22 requires 'the auctioneer or crier,' before commencing any retail auction sale of jewelry, to 'make a complete and accurate inventory' of each and every article to be offered for sale at the auction and file the same with the license collector; and to 'mark each and every article' to be offered for sale at the auction 'by some band or tag' identifying and describing 'each article by carat weight, percentage of purity, kind of metal or plating, weight and quality and color of stones, number of jewels and adjustments of watches, and whether they be new or used articles.' The inventory aforesaid 'shall not exceed in value the average inventory of the' owner of the stock 'for the 12 months next preceding the said auction.'

'Section 23. Any retail auction sale of jewelry * * * shall cease and end upon the sale * * * of the stock of goods listed and marked according to Section 22 * * *, and * * * shall not, under any circumstances, be conducted * * * for a longer period than 15 days.'

'Section 24. It shall be unlawful * * * to add to or increase the stock offered for sale as listed and marked in accordance with Section 22 * * *, in any manner, and fill in stock of any nature, kind or character shall be prohibited.'

The city summarizes the restrictions as follows: (1) Retail auctions of jewelry are unlawful unless the jeweler has been in the retail jewelry business in the premises of the auction for at least one year. Sec. 20. (2) That no such auction has been conducted upon said premises for at least one year. Sec. 20. (3) The auctioneer shall make an accurate inventory of every article to be offered for sale and file the same with the license collector. Sec. 22. (4) Such auction sale shall not be conducted for more than 15 days. Secs. 21, 23. (5) No such auction shall be conducted between 6 p. m. and 8 a. m. Sec. 21. (6) The auctioneer is required to mark or tag each and every article subject to sale describing its carat weight, percentage of purity et cetera. Sec. 22. (7) The said inventory shall not exceed in value the average inventory of the jeweler for the previous 12 months. Sec. 22. (8) Fill-in stock is prohibited. Secs. 24, 23. (9) Retail auction sales of jewelry are unlawful in the months of June and December. Sec. 19.

Plaintiff Lewis B. Hagerman had been in business in St. Louis as a merchandise broker and licensed auctioneer for seven years. He posted the required bond, the Bankers Indemnity Company being surety thereon. He had a store where he had seats for his customers and displayed...

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