City of Carterville v. Gibson

• Decision Date: 02 June 1914
• Docket Number: No. 16753.,16753.
• Citation: 168 S.W. 673,259 Mo. 499
• Parties: CITY OF CARTERVILLE v. GIBSON.
• Court: Missouri Supreme Court

168 S.W. 673

259 Mo. 499

CITY OF CARTERVILLE v. GIBSON.

No. 16753.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

Rehearing Denied June 30, 1914.

1. TELEGRAPHS AND TELEPHONES (§ 30)—LICENSES —LIABILITY OF AGENT.

Under an ordinance imposing a license tax on the conduct of the telephone business, an agent of a company, without any interest in it or any control of its business aside from acting as its agent, was not "conducting a telephone business," and was not required to have a license, and hence, even if the company had forfeited its license by failure to furnish a free city telephone, in consideration of which the license was given, was not subject to a fine for violation of the ordinance.

2. PRINCIPAL AND AGENT (§ 136)—CONDUCT OF BUSINESS—LIABILITY OF AGENT.

In the absence of some specific law to the contrary no agent conducting a business is personally responsible for the acts of the principal, unless the business is of itself unlawful, such as gambling, the sale of intoxicating liquors, or other public nuisance which a license legalizes, and which, until the principal has been legally authorized thereto, neither he nor his agent may lawfully carry on.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Prosecution by the City of Carterville against Della Gibson. Defendant was fined in the police court of Carterville, and from a judgment of acquittal on appeal the city appeals. Affirmed.

The appellant is a city of the fourth class, organized and existing under the laws of this state, and the respondent is the agent of the Home Telephone Company, duly organized and incorporated under the laws of the state of ____, and duly authorized to do business in this state. As I gather from the record, she was the agent of the company in the city of Carterville, but not of the state at large. The telephone company, through respondent, claims to have an occupation license from appellant to construct and maintain its lines and conduct its business in said city.

The consideration for the issuance of this license was: The company agreed that the city might use its poles free for stringing fire alarm wires; that it (the company) would furnish the power therefor and furnish the latter one telephone free for general city purposes. The appellant claims that the company has violated the terms of its license and forfeited the same by discontinuing to furnish the city a free phone, and that it is therefore doing business in that city without a license. Predicated upon those contentions the city had the respondent, Della Gibson, the agent of the company, arrested for conducting a telephone business in Carterville without a license, as required by ordinance. The respondent was tried in the city court, where she interposed the defense that she was not operating or conducting a telephone business in that city, or elsewhere, but was simply the agent of the Home Telephone Company; also that the company had a license such as was required by the ordinances of the city. A trial was had in the police court of that city, which resulted in a fine imposed upon the respondent, from which she appealed to the circuit court of Jasper county, wherein, upon another trial, she was acquitted, and the city appealed the case to this court.

A. M. Baird, of Carterville, for appellant. Cole & Shepherd, of Joplin, for respondent.

WOODSON, P. J. (after stating the facts as above).

I. Without stopping to state the various reasons assigned, the case was properly appealed to this court; and we will therefore proceed to dispose of ...