Butler v. The City of Moberly

• Decision Date: 25 May 1908
• Citation: 110 S.W. 682,131 Mo.App. 172
• Parties: C. L. BUTLER, Appellant, v. THE CITY OF MOBERLY, Respondent
• Court: Kansas Court of Appeals

110 S.W. 682

131 Mo.App. 172

C. L. BUTLER, Appellant, v. THE CITY OF MOBERLY, Respondent

Court of Appeals of Missouri, Kansas City

May 25, 1908

Appeal from Randolph Circuit Court.--Hon. Alexander H. Waller Judge.

AFFIRMED.

Judgment affirmed.

Bruce Barnett, Jack Quayle and Paul R. Stinson for appellant.

(1) The acts of the defendant as complained of in the petition constituted a wrongful and unlawful interference with the plaintiff's right to pursue his lawful business. The acts alleged in the first count constituted malfeasance, being a systematic and persistent misuse of the defendant's authority as a municipal corporation, calculated to destroy and destroying plaintiff's lawful business, and depriving him of his right to engage therein. (2) The omission, failure and refusal of the defendant city to issue a peddler's license to plaintiff, as complained of in the second count constituted a misfeasance, in that it deprived plaintiff of his right to engage in his business by exposing him to prosecution in the city police court, upon each and every day upon which he should engage therein. (3) The ordinance of the defendant city imposing a license tax of $ 25 per year upon peddlers is for purposes of pecuniary gain for the municipal corporation, and that only as clearly appears from the statute authorizing the levying thereof. R. S. 1899, sec 5857; Springfield v. Jacobs, 101 Mo.App. 341; St. Paul v. Traeger, 25 Minn. 248. (4) After the license was issued to plaintiff the acts of the defendant city in interfering with plaintiff in the pursuance of his business, to which he became entitled by reason of the license for which he had paid his money, were tortious and actionable. State ex rel. v. Ashbrook, 154 Mo. 375. (5) Plaintiff's business as alleged in the petition was that of a peddler, fresh meats coming within the term "goods, wares and merchandise." R. S. 1899, sec 8861; Kansas City v. Lorber, 64 Mo.App. 604; St. Joseph v. Dye, 72 Mo.App. 214. (6) The acts of the city's agents in question having been done in connection with the authority to levy a license tax upon certain occupations, which authority was for the private pecuniary profit of the municipal corporation and not in the service of the State or greater public the city is liable for such tortious conduct of its officers and agents, the same as in cases of private corporations. Barree v. Cape Girardeau, 197 Mo. 382; Bullmaster v. St. Joseph, 70 Mo.App. 60; Donahoe v. Kansas City, 136 Mo. 657; Ulrich v. St. Louis, 112 Mo. 136, 148; Hunt v. Boonville, 65 Mo. 620; Murtagh v. St. Louis, 44 Mo. 479, 480; Armstrong v. Brunswick, 79 Mo. 319; Gould v. Atlanta, 60 Ga. 164; Bailey v. New York, 3 Hill 539. (7) The defendant is liable for the further reason that the duty of issuing the license upon payment or tender of the required fees, is wholly ministerial. State ex rel. v. Ashbrook, 154 Mo. 375.

J. Elmer Ball and Major J. Lilly for respondent.

(1) The imposition of a tax is the exercise of a sovereign power, and is the discharge of a public duty and the performance of a public function for the public good; and for the acts of its officers and agents in connection therewith a municipal corporation is not liable for damages. Murtaugh v. St. Louis, 44 Mo. 479; Keating v. Kansas City, 84 Mo. 415; Ulrich v. St. Louis, 112 Mo. 138; Ely v. St. Louis, 181 Mo. 723. It is appellant's contention that the acts of the officers and agents of the city of Moberly complained of were committed in connection with the levying of a license tax; that being the case appellant's petition does not state a cause of action and the demurrer thereto was properly sustained. (2) The arrest and prosecution of appellant under the circumstances set out in his petition was but the enforcement of a police regulation for which the respondent city is not liable. Heller v. Sedalia, 53 Mo. 159; Worley v. Columbia, 88 Mo. 106; Tritz v. Kansas City, 84 Mo. 640. (3) Appellant voluntarily gave up his alleged business as a peddler of fresh meats, and should not be heard to complain because of a threatened interference therewith. The alleged threatened interference might have been averted by a trifling expense, and such being the case appellant cannot maintain an action for damages. Douglass v. Stephens, 18 Mo. 362; Trust Co. v. Stewart, 115 Mo. 236. (4) The damages alleged to have been sustained by appellant because of the acts complained of are for loss of anticipated profits from his alleged business as a peddler of fresh meats; and are necessarily uncertain, contingent, speculative and incapable of proof, and for that reason afford appellant no right of action. Simmer v. St. Paul, 23 Minn. 408; Armistead v. Railroad, 108 La. 171; McNeil & Bros. Co. v. Steel Co., 207 Pa. St. 493.

OPINION

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 ten 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...