City of St. Charles v. Elsner

Decision Date30 March 1900
Citation56 S.W. 291,155 Mo. 671
PartiesCITY OF ST. CHARLES, Appellant, v. ELSNER
CourtMissouri Supreme Court

Transferred from St. Louis Court of Appeals.

Reversed and remanded.

T. F McDearmon for appellant.

(1) The court erred in refusing the instruction asked by the plaintiff. Under the undisputed facts in the case the plaintiff was entitled to a judgment. The plaintiff was and is a city of the third class and had authority by express grant in its charter to pass the ordinance upon which the complaint is based for the regulation of weighing and measuring any commodity sold in the city, including coal. Laws, 1893, p. 84, sec. 91. It is well settled that the Legislature in the exercise of its police power had the right to confer this authority upon the city. Coal Co. v. St Louis, 130 Mo. 323; City of Lamar v. Weidman, 57 Mo.App. 507; Dillon on Mun. Corp. (1 Ed.), sec. 390; Cooley on Con. Lim., sec. 596; Turner v. Maryland, 100 U.S. S.Ct. 38; Ritchie v. Boynton, 114 Mass. 431; Eaton v. Keagan, 114 Mass. 443; Durgan v. Dyer, 68 Me. 143; Woods v. Armstrong, 34 Ala. 150; Mobile v. Tuille, 3 Ala. (U.S.) 140; City Council v. Rogers, 2 McCord 495; Stokes v. New York, 14 Wend. 87; Mayor of New York v. Nichols, 4 Hill (N. Y.) 209; Tenney v. Lenz, 16 Wis. 566; Fire Department v. Helfenstein, 16 Wis. 136; Ash v. People, 11 Mich. 347; Chilvers v. People, 11 Mich. 43; State v. Herod, 29 Iowa 123; Yates v. Milwaukee, 12 Wis. 673; Raleigh v. Sorrell, 1 Jones (N. Car.) 49; Frazier v. Warfield, 13 Neb. 279; Cooley on Taxation, p. 409; Johnson v. Philadelphia, 60 Pa. St. 445; New York v. Street Railway, 32 N.Y. 261; Louisville City R. R. Co. v. Louisville, 4 Bush. 478; O'Maley v. Freeport, 96 Pa. St. 24. The fact that the fees charged and collected exceeds the expense of the license or regulation does not invalidate the ordinance or constitute a revenue or tax ordinance. Coal Company v. St. Louis, 130 Mo. 323; Lamar v. Weidman, 57 Mo.App. 507; Tenney v. Lenz, 16 Wis. 566; Fire Department v. Helfenstein, 16 Wis. 136; Ash v. People, 11 Mich. 347; Chilvers v. People, 11 Mich. 43; State v. Herod, 29 Iowa 123. The fact that the fees are payable into the treasury of the city does not impress it with the character of a tax and renders the ordinance invalid. Coal Company v. St. Louis, 130 Mo. 323; Railroad v. Philadelphia, 58 Pa. 119; Johnson v. Philadelphia, 60 Pa. St. 445; State v. Herod, 29 Iowa 123; New York v. Railroad, 32 N.Y. 261; Railroad v. Louisville, 4 Bush. 478. The ordinance in question is penal in its nature. In the construction of a penal statute or law an interpretation must never be given that will defeat its purpose if it will admit of any other reasonable construction. Kansas City v. Lorber, 64 Mo.App. 604; St. Joseph v. Elliott, 47 Mo.App. 418; State v. Williams, 35 Mo.App. 541; Deemes v. Mayor of Baltimore, 8 Md. 164; Littlefield v. State, 42 Neb. 223. Municipal authorities are beyond the control of the court in the exercise of powers expressly granted to them. Accordingly the courts will not declare the ordinances of a city enacted under such express authority unreasonable and invalid. Marionville v. Hinson, 65 Mo.App. 397; Skinker v. Heman, 64 Mo.App. 441; Farrar v. St. Louis, 80 Mo. 379; Estes v. Owen, 90 Mo. 113; St. Louis v. Speigel, 8 Mo.App. 478; Plattsburg v. Riley, 93 Mo. 606; St. Louis v. Griswold, 58 Mo. 192; State v. Able, 65 Mo. 357; Hannibal v. Tel. Co., 31 Mo.App. 23; St. Louis v. Green, 7 Mo.App. 468; s. c., 70 Mo. 562; Lamar v. Weidman, 57 Mo.App. 507; Grand Rapids v. Brandy, 105 Mich. 670; O'Maley v. Freeport, 96 Pa. St. 24.

C. W. Wilson for respondent.

(1) As the authority of the city to legislate on the subject is derived from Acts of 1893, sec. 91, p. 84, we insist: (a) That this section of the charter does not empower the city to maintain public scales, and the ordinance is invalid for that reason. (b) But if it be said that the city may provide for the weighing of articles on the public scales, the utmost that can be claimed under the section is the right to regulate, but no power to tax for revenue purposes. The ordinance is in effect -- in practical operation -- a revenue ordinance, and hence invalid. St. Louis v. Ins. & Trust Co., 47 Mo. 150; Knox City v. Thompson, 19 Mo.App. 527; Trenton v. Clayton, 50 Mo.App. 541; St. Louis v. Telephone Co., 96 Mo. 623; In re Wau Yin, 22 F. 701; Jackson v. Newman, 59 Miss. 385; Mankato v. Fowler, 32 Minn. 364. (2) The ordinance is invalid because of its illegal discriminating provision. By section 790 all are required to have unshelled corn, hay, or stone coal weighed on the city scales before selling or offering the same for sale. But section 793 permits any merchant in the city to sell hay in 500 pound lots or unshelled corn or stone coal in 15 bushel lots without having the same weighed. It discriminates in favor of a class as against the mass of citizens. St. Louis v. Spiegel, 90 Mo. 587. (3) The ordinance is unreasonable and conflicting in its provisions, and imposes an oppressive burthen upon the trade in commodities embraced in its provision. Under the guise of regulation it in fact collects a revenue tax. It makes it a misdemeanor for a man to offer hay, corn, or coal for sale, without first having had the same weighed, and without having a weigher's certificate showing the gross, tare and net weight of the article offered. It undertakes to improperly impose taxes on these articles. City v. Riley, 72 Mo. 220; R. S. 1889, sec. 1920, p. 513; Brookfield v. Tooey, 141 Mo. 619; Lamar v. Weidman, 57 Mo.App. 514.

BRACE P. J. Robinson, J., absent.

OPINION

BRACE, P. J.

This is an action by the city of St. Charles against the defendant for the violation of a city ordinance, begun in the police court of said city, taken thence by appeal to the St. Charles Circuit Court, thence to the St. Louis Court of Appeals, and thence certified here, as involving the construction of section 3 of article 10 of the Constitution.

The city of St. Charles is a city of the third class. By statute, cities of that class are authorized to provide by ordinance for the inspection, weighing and measuring of coal, hay, corn, and other commodities and to fix the fees therefor (Laws 1893, p. 84, sec. 91), and to collect a license tax on "merchants of all kinds" and on "all other businesses, trades and avocations whatever." [Sec. 107.]

The city has and maintains three public scales.

The ordinance in question after providing for the appointment of weighers at such scales, their qualification, by oath, and bond, provides:

"Section 790. Penalty for selling unweighed coal, hay and corn; what certificate shall contain. -- Any person who shall bring or send into the city of St. Charles for sale, any unshelled corn, hay or stone coal, in any wagon or vehicle, and shall sell or offer the same for sale without having first had the same and the wagon or other vehicle, containing the same, weighed, and without having a certificate of the weight thereof, which certificate shall contain the gross, tare and net weight of the article contained in said load, and the weigher's name printed or written therein, and the fee paid to the weigher, shall be deemed guilty of a misdemeanor, and shall pay to the city not less than five and not more than one hundred dollars, to be recovered as other penalties before the police judge."

It then prescribes a form for the weigher's certificate, the number of pounds to the bushel, and then provides:

"Section 793. Coal, Hay and Corn must be weighed. -- No person shall buy or sell or offer to sell any unshelled corn, or stone coal, in this city in quantities exceeding fifteen bushels, nor shall any person buy or sell, or offer for sale, any hay in this city in quantities exceeding five hundred pounds until the same shall have been weighed by one of the city weighers, on one of the city scales, and a certificate of the weight given as herein required. Provided, that no person shall sell unshelled corn, or stone coal in quantities not exceeding fifteen bushels, and hay in quantities not exceeding five hundred pounds in this city until the same has been weighed as hereinbefore provided, unless such person is a dealer buying and selling unshelled corn, stone coal or hay at a stand or permanent place of business in this city, and has a merchant's license from this city to engage in such business."

It then forbids the alteration of the weigher's certificate and provides:

"Section 795. Weigher's charges. -- The weighers shall be entitled to charge for each certificate delivered by them as follows: For every load of unshelled corn or stone coal containing fifty bushels or more, twenty-five cents, and for every such load containing less than fifty bushels and more than fifteen bushels, twenty cents; for every load of hay containing more than five hundred pounds, twenty-five cents and for all other things not before mentioned, twenty-five cents per load; for each animal weighed separately, ten cents; and for two or more animals, five cents each; provided, that when such animals are weighed in a wagon the charge shall be twenty-five cents. No weigher shall charge more or less than the prices allowed by this section, nor shall he deliver his certificate until the fee is paid.

"Section 796. Weighers shall account for moneys collected; their compensation. -- The city weighers shall account to and settle with the city for all fees and money collected by them at the regular meetings of the council in April, July, October and January in each year, and shall be allowed for their services one-half of all fees collected by them.

"Section 797. Penalty for violation of this ordinance; or for imposition. -- Whoever shall violate any of the provisions of this...

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