Sylvester Coal Company v. City of St. Louis

• Decision Date: 07 November 1895
• Parties: Sylvester Coal Company et al., Appellants, v. The City of St. Louis et al
• Court: Missouri Supreme Court

32 S.W. 649

130 Mo. 323

Sylvester Coal Company et al., Appellants, v. The City of St. Louis et al

Supreme Court of Missouri, First Division

November 7, 1895

Appeal from St. Louis City Circuit Court.

Affirmed.

Leverett Bell for appellants.

(1) Proceedings by a municipal corporation under an ordinance which is entirely void may be restrained. 2 High on Inj sec. 1247; Mayor v. Radeke, 49 Md. 217; Davis v Fasig, 128 Ind. 271; Rushville v. Rushville, 28 N.E. 853; Hitchcock v. St. Louis, 49 Mo. 484; Dennison v. Kansas City, 95 Mo. 416; Schopp v St. Louis, 117 Mo. 131. (2) The plaintiffs are entitled to maintain this action jointly and there is no misjoinder of parties plaintiff. Smith v. Swomsteadt, 16 How. (U.S.) 288; Newmeyer v. Railroad, 52 Mo. 81; Ranney v. Vader, 67 Mo. 476; Overall v. Ruenzi, 67 Mo. 203; Dennison v. Kansas City, 95 Mo. 416. (3) In the following cases in Missouri, illegal and unreasonable ordinances have been held to be void: St. Charles v. Nolley, 51 Mo. 122; Corrigan v. Gage, 68 Mo. 541; Cape Girardeau v. Riley, 72 Mo. 220; St. Louis v. Spiegel, 75 Mo. 145; Rendering Co. v. Behr, 77 Mo. 91; Springfield v. Springfield, 85 Mo. 674; Dennison v. Kansas City, 95 Mo. 416; Schopp v. St. Louis, 117 Mo. 131; Hannibal v. Telephone Co., 31 Mo.App. 23. (4) Sections 1593 and 1594 of the ordinance in question are invalid provisions of ordinance and of no force or effect, because the system established by them constitutes a tax on sales and deliveries of coal in St. Louis for fuel and exacts three cents for each load sold and delivered which sum is paid into the treasury of the city of St. Louis; because said system is an unlawful interference with and burden on the sale and delivery of coal as fuel in St. Louis; because said system is unauthorized by the charter of St. Louis and the law of the land; because said system and said ordinance regulations are unreasonable and oppressive; because the regulation requiring a ticket signed by the city register and countersigned by the city comptroller in blank to be delivered to the purchaser with each load of coal adds no security to the purchaser as to the weight of the coal delivered, nor does it operate as or constitute any check on the seller of the coal as to such weight.

W. C. Marshall for respondents.

(1) The petition does not state facts sufficient to constitute a cause of action. Turner v. Maryland, 100 U.S. 38; Ritchie v. Boynton, 114 Mass. 431; Eaton v. Keegan, 114 Mass. 443; Durgin v. Dyer, 68 Me. 143; Woods v. Armstrong, 34 Ala. 150; Mobile v. Trulle, 3 Ala. (U.S.) 140; Pierce v. Kimball, 9 Me. 54. It has been held that a city ordinance may require hay or coal to be weighed by city weighers. Stokes v. New York, 14 Wend. 87; Yates v. Milwaukee, 12 Wis. 673; Raleigh v. Sorrell, 1 Jones (N. C.), Law, 49; Paige v. Fazackerly, 36 Barb. 392; Mayor, etc., v. Nichols, 4 Hill (N. Y.), 209; Rogers v. Jones, 1 Wend. (N. Y.) 237; Chicago v. Quinby, 38 Ill. 274; Howe v. Norris, 12 Allen (Mass.), 82; Libby v. Downey, 5 Allen (Mass.), 299. (2) The plaintiffs have an adequate remedy at law. Mere apprehension of a threatened wrong will not entitle one to an injunction. Church v. Maschop, 10 N.J.Eq. 57; Jenny v. Crase, 1 Cranch, U.S.C. C. 443; Mariposa Co. v. Garrison, 26 How. (N. Y.) par. 448; Watrous v. Rogers, 16 Tex. 410. (3) A party seeking an injunction must show a peculiar injury, distinct from that which he suffers in common with the public. Falls Village, etc., Co. v. Tibbetts, 31 Conn. 165; Hovelman v. Railroad, 79 Mo. 632.

Brace, P. J. Barclay, J., concurs in the result and in the second paragraph.

OPINION

Brace, P. J.

This is an appeal from a judgment of the circuit court of the city of St. Louis, sustaining a demurrer to plaintiffs' petition. The material allegations of the petition are, that the plaintiffs, the Sylvester Coal Company, The Berry-Horn Coal Company, The St. Louis Fuel Company and the Lebanon Machine Association, are, respectively, corporations created under the laws of the state of Missouri and engaged in the business of selling and delivering coal by the wagon load, to be used as fuel in the city of St. Louis; that they are licensed merchants and have paid their tax as such; that each of the plaintiffs maintained in its business a private scale, on which all coal sold and delivered is weighed, the weigher of which has been approved by the mayor, taken an oath before the city register, and filed bond as required as weigher at public scales; that fifty other persons or corporations are engaged in the same business in like manner; that the city has adopted and there are now ordinances in force in said city as follows:

"Section 1593. No public scales belonging to private persons or companies shall charge a greater fee for weighing than is allowed in section 1603, nor shall they charge a less fee than city scales charge, except as hereinafter provided, nor deliver tickets without payment therefor at the time of the delivery, upon penalty of loss of privilege conferred by ordinance, and the abolishing of the defaulting scales. It shall not be lawful for any person to do any weighing on any scales constructed in any public street or place, and to receive a fee for such weighing, except as follows: First, the public scales for which a weigher has been appointed by the mayor; second, on scales owned by private parties, which have been authorized by acts of the legislature, and the owners of which have complied with the provisions of the act or acts; third, all private scales, the weighers of which shall have been approved by the mayor, and have taken an oath before the register, and filed a bond as required as weigher at the public scales.

"Section 1594. The comptroller shall furnish the collector weighers' certificates in blank, signed by the register and countersigned by the comptroller, for the use of the weighers of all private scales who have been or may be appointed with the approval of the mayor, and who shall file a bond in the sum of $ 1,000, with two or more securities, to be owners of unincumbered real estate, located in the city of St. Louis, to be approved by the mayor and council. The certificates so issued and furnished private scales, authorized by the ordinances of this city or acts of the legislature to do public weighing, shall be printed on red paper for weights of coal over twenty-five bushels and also for weights of all other articles where a fee for weighing is charged, and on green paper where no fee for weighing is charged, and on the back of every red and green ticket shall be printed the words 'the weigher of this scale has filed a bond with the register,' and the further words, 'dealers in coal are not authorized to charge a fee for weighing their loads of twenty-five bushels, or less, on their own scales, except hard or anthracite coal.' The collector shall furnish to weighers of private scales blank certificates at the rate of $ 10 per hundred for red certificates and $ 3 per hundred for green certificates, and no certificates except those furnished by the collector shall be issued by any person doing weighing at such scales. Each weigher shall furnish a separate certificate for each and every load weighed, and only on the kind of blank provided by this section; and no weigher shall sell or dispose of any blank certificate or certificates received from the collector except for loads actually weighed upon his scales. Any violation of the provisions of this section shall be deemed to be a misdemeanor, and upon conviction thereof, the offender shall be fined as provided in section 1608. The books kept by said weighers shall at all times be opened to the inspection of the collector, the inspector of weights and measures, and such officers as may be designated by the collector for that purpose."

"Section 1608. No person shall buy or sell any hay or stone coal in this city until the same has been weighed by one of the legally authorized weighers, and a certificate of the weight thereof given, as required in the provisions of this article; and any person violating this section shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than $ 10 for each offense."

That said sections 1594 and 1608, aforesaid, are invalid and of no force or effect, because the system established by them constitutes a tax on sales and deliveries of coal in St Louis for fuel, and exacts three cents for each load so sold and delivered, which sum is paid into the treasury of the city of St. Louis; because said system is an unlawful interference with and burden on the sale and delivery of coal as fuel in St. Louis; because said system is unauthorized by the charter of St. Louis and the law of the land; because said system and said ordinance regulations are unreasonable and oppressive; because said regulation requiring a green ticket to be delivered with each load of coal adds no security to the purchaser as to the weight of the coal delivered, nor does it operate or constitute any check on the seller of the coal as to such weight; that the expense to each of these plaintiffs for green tickets so to be used by it respectively and purchased of the city of St. Louis, exceeds $ 150 annually; that the...