Simmons Medicine Co. v. Ziegenhein

• Decision Date: 06 July 1898
• Citation: 47 S.W. 10,145 Mo. 368
• Parties: Simmons Medicine Company et al., Appellants, v. Ziegenhein, Collector
• Court: Missouri Supreme Court

47 S.W. 10

145 Mo. 368

Simmons Medicine Company et al., Appellants, v. Ziegenhein, Collector

Supreme Court of Missouri

July 6, 1898

Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.

Reversed and remanded (with directions).

D. P Dyer for appellants.

W. C Marshall, Chas. Claflin Allen and Judson & Taussig for respondent.

Robinson, J. Marshall, J., does not sit in the case, having been of counsel.

OPINION

In Banc.

Robinson J.

This is a suit in equity by fourteen manufacturers of and dealers in patent medicines in the city of St. Louis to restrain the defendant, as collector of that city, from enforcing against them the provisions of section 3 of "An Act providing for the endowment of the State University, and for the establishment and endowment of free scholarship of merit therein in each county," approved April 1, 1895, Acts 1895, p. 278. Said section provides: "Every manufacturer of medicines or remedies commonly known as patent medicines shall pay a license tax of twenty-five dollars, and every traveling vendor of such medicines or remedies shall pay a license as now provided by law; and every such traveling vendor shall take out a license in every county in which he vends such articles," etc.

The petition after stating the business of each of the plaintiffs, and that they have joined in this action to avoid a multiplicity of suits, charges that the defendant, as collector of the City of St. Louis, claiming to act under and in pursuance of section 3 of said act as aforesaid, has demanded of each of them the license tax of $ 25 provided in said section, and upon their refusal to pay same, has threatened and is now threatening to seize, distrain, levy upon and sell the property of each of said plaintiffs to pay said license tax required by said section 3 of said act as aforesaid, and that he will do so unless enjoined. The petition then charges that said act of April 1, 1895, is violative of section 28 of article IV, and of section 3 of article X of the Constitution of the State of Missouri, and for that reason its provisions are of no binding force upon them or either of them.

The petitioners further charge that the seizure and sale of their property by the collector under the pretended authority of the act of April 1, 1895, would cast a cloud upon their title, that the damages to each of them would be irreparable, and that they are without an adequate remedy at law, hence have come into a court of equity, where such complaints are properly cognizable, and pray for injunctive relief. To plaintiffs' petition, defendant filed a general demurrer, which being by the court sustained, and final judgment entered thereon, the plaintiffs after the usual preliminaries have prosecuted their appeal to this court.

Although a general demurrer was filed to plaintiffs' petition, the counsel for defendant request that nothing may be considered by the court to prevent it from passing upon the constitutionality of the act under which the defendant is threatening to proceed. We will then treat the case as if the demurrer...