Butler v. City of Moberly

• Decision Date: 25 May 1908
• Citation: 110 S.W. 682,131 Mo. App. 172
• Parties: BUTLER v. CITY OF MOBERLY.
• Court: Missouri Court of Appeals

110 S.W. 682

131 Mo. App. 172

BUTLER v. CITY OF MOBERLY.

Kansas City Court of Appeals. Missouri.

May 25, 1908.

1. MUNICIPAL CORPORATIONS — PROSECUTION OF INDIVIDUALS — CITY'S LIABILITY.

That some unidentified person filed a complaint against plaintiff in defendant city's police court charging him with peddling without a license; that the city, through its officers, caused plaintiff to be prosecuted; and that, upon his acquittal and the city's appeal from police court, the city's officers deterred him from continuing in business by threatening to cause similar complaints to be filed against him, to his damage in a specified sum — does not show a cause of action against the city, since the city is not liable for any wrongful threats of repeated prosecutions made by its officers, and since, if plaintiff was guilty, he cannot complain of the threats.

2. SAME — REFUSAL TO ISSUE LICENSE.

A city is not liable for damages sustained through its officer's wrongful refusal to issue a peddler's license.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by C. L. Butler against the city of Moberly. From a judgment for defendant, plaintiff appeals. Affirmed.

Bruce Barnett, Jack Quayle, and Paul R. Stinson, for appellant. J. Elmer Ball and Major J. Lilly, for respondent.

ELLISON, J.

The petition in this action is based on alleged wrongs done to plaintiff by defendant city in preventing him from prosecuting the business of a peddler of fresh meat within the limits of the city. There was a demurrer to the petition on the ground of its not stating a cause of action, which was sustained by the trial court. Plaintiff stood upon the petition and brought the case here.

The petition is in two counts. The first alleges: That there was an ordinance of the city providing that every peddler should pay a license tax of $25 per year; that, while such ordinance was in force, he procured and had the city issue to him a license as a peddler for one year from October 1, 1903, for the purpose of peddling fresh meats within the corporate limits of the city; and that he thereby became entitled to and did engage in the business of peddling fresh meat. He then alleges: That, while so engaged under such license, "there was filed before the police judge of said city an affidavit to the effect that plaintiff had on the ____ day of November, 1903, engaged in the business of a peddler without having a license therefor, which affidavit was wholly false; * * * that thereupon the defendant city, its duly constituted officers, * * * did arrest plaintiff and brought him before the police court of the city and caused him to be prosecuted and tried in said court for an alleged violation of certain valid ordinances without having obtained a peddler's license." It was further alleged that, upon a trial in said police court, he was acquitted, and the city appealed to the circuit court, where the case was continued for 10 months, when defendant abandoned the appeal; that immediately after the appeal "the defendant city, its duly constituted officers and agents, did thereupon notify this plaintiff that, unless he ceased to engage in his business until the appeal should be finally determined, the city and its officers would arrest him and would file a separate information against him before the police judge...