Campbell Baking Co. v. City of Maryville

• Decision Date: 16 March 1929
• Docket Number: No. 111.,111.
• Citation: 31 F.2d 466
• Parties: CAMPBELL BAKING CO. et al. v. CITY OF MARYVILLE, MO., et al.
• Court: U.S. District Court — Western District of Missouri

31 F.2d 466 (1929)

CAMPBELL BAKING CO. et al. v. CITY OF MARYVILLE, MO., et al.

No. 111.

District Court, W. D. Missouri, St. Joseph Division.

March 16, 1929.

Mayer, Conkling & Sprague, of St. Joseph, Mo., and Mason & Williams, of Tulsa, Okl., for plaintiffs.

Culver, Phillip & Voorhees, of St. Joseph, Mo., for defendants.

OTIS, District Judge.

Complainants seek in this proceeding a permanent injunction restraining the city of Maryville, Mo., from enforcing against them the following ordinance:

"Every person, firm or corporation engaged in selling and delivering any goods, wares or merchandise of any kind, at wholesale or retail, to any person, firm or corporation in the city of Maryville shall first take out and have a license therefor from the city of Maryville and pay a license tax to the city at the following rates for the respective periods of time: For one day, $2.00. For one month $30.00. For six months $125.00. For one year $200.00.

"This ordinance shall not be construed to apply to any person, firm or corporation selling goods, wares or merchandise at their regularly established store or place of business.

"Each and every person violating any of the provisions of this ordinance shall, on conviction, be adjudged guilty of a misdemeanor and punished by a fine of not less than $10 or more than $100, or by imprisonment of not more than three months or both."

The complainants are Delaware corporations and as such nonresidents of the state of Missouri. They allege that this ordinance is void, as not within the legislative powers of the city of Maryville, and as violative of the Fourteenth Amendment. It is alleged also that, even though the ordinance on its face may be valid, it is sought to be enforced by the defendants against these complainants, so as to deny them the equal protection of the laws.

1. There is first to be determined whether this court has jurisdiction. The bill alleges that more than $3,000 is involved. The only facts set up therein as a basis for this allegation are that "the business of each of the complainants in selling bread and bakery products in said city exceeds the sum of $5,000 yearly," and that "by the enforcement of the ordinance the business of the complainants will be completely destroyed." The answer denies that the amount involved in the controversy is in excess of $3,000, exclusive of interest and costs. It appears from the evidence that the gross sales in Maryville of each complainant are around $7,500 a year, and that the profits are approximately 5 per cent., or for each complainant about $375 annually.

The test for determining the amount involved is: What is the value of the right sought to be maintained and preserved? Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596. It is sought here to preserve the Maryville business of complainants. The value of the Maryville business of each complainant may properly be determined by capitalization of its net annual income from that business, and, as that net annual income in the case of each is around $375, the value of the business of each may be estimated at more than $3,000. Western & Atlantic R. R. v. Railroad Commission, 261 U. S. 264-267, 43 S. Ct. 252, 67 L. Ed. 645. This court has jurisdiction of the case, since there is diversity of citizenship and the requisite amount involved.

2. Upon the merits I first consider whether the city of Maryville had authority under the Missouri statutes to enact this ordinance. Such authority as it had must be found, if anywhere, in section 8322, R. S. Mo. 1919, as amended by Laws Mo. 1927, p. 358. That section gives to cities of the third class (and Maryville is of that class) power and authority to levy and collect a license tax on a great number of specifically enumerated businesses, as, for example, on wholesale houses, auctioneers, architects, druggists, grocers, banks, brokers, etc. Under it the city of Maryville has the power to impose a license...