City of Hannibal v. Minor
| Decision Date | 15 November 1949 |
| Docket Number | No. 27630.,27630. |
| Parties | CITY OF HANNIBAL v. MINOR. |
| Court | Missouri Court of Appeals |
Roy Hamlin, Hannibal, for appellant.
Ben Ely, City Attorney, Hannibal, Fuller, Fuller, & Ely, Hannibal, for respondent.
This is an appeal from a final judgment of the Court of Common Pleas of the City of Hannibal, Missouri, wherein defendant Henry Minor was found guilty of violating a city ordinance. The cause was first tried in the Recorder's Court of said city where defendant was found guilty and a fine assessed against him in the sum of $3.00 and costs. He appealed to the Hannibal Court of Common Pleas, where, upon a trial before the court without a jury, he was found guilty and fined $3.00 and costs and ordered committed to the city jail in custody of the City Marshall until such fine and costs be paid. The Court of Common Pleas also overruled defendant's combined Motion to Quash and Plea to the Jurisdiction which had been filed in and overruled by the Recorder's Court. This combined motion and plea alleged that the City of Hannibal had no right or authority from its charter nor from any statute of the State to pass the ordinance in question. After his conviction in the Court of Common Pleas defendant duly appealed to this court.
The amended information upon which the prosecution was based charged that from January 1, 1948, to April 1, 1948, there was in full force and effect in the City of Hannibal, Missouri, an ordinance known as General Ordinance No. 26, originally approved July 10, 1939, as amended by ordinance approved December 16, 1946, entitled "An Ordinance In Relation to City Licenses and the Regulation of Businesses"; that under said ordinance it was required that any person engaged in the business of an automobile repair shop "shall obtain therefor a license and pay a license tax therefor to the City of $25.00 per annum." The information further alleged that at divers times between the 1st day of January, 1948, and the 1st day of April, 1948, defendant Henry Minor did wilfully, intentionally and unlawfully violate said ordinance by engaging in the City of Hannibal in the County of Marion and the State of Missouri, in the business of operating an automobile repair shop without having obtained a license therefor from the City of Hannibal, and without having paid to the City of Hannibal the said license tax of $25.00, contrary to the form of said ordinance.
At the trial in the Court of Common Pleas defendant admitted in open court that he did operate an automobile repair shop in the City of Hannibal at the times charged in the information, and that he had not prior to said time nor at any time during said period obtained a license for the operation of said repair shop, and that he did not at any time pay to the City of Hannibal a license tax for the operation of said business.
The City offered in evidence, in addition to the admissions made by defendant, its General Ordinance No. 26 as amended. Defendant objected to the introduction of said ordinance on the ground that it was not in conformity with state law; that it was not authorized by the State Legislature, and that the ordinance was void because it was not authorized by the Legislature nor by the Constitution. Defendant's objection was overruled and the ordinance was introduced in evidence. The parts of said ordinance with which we are concerned are as follows:
With the introduction of the ordinance in question and the admissions made by defendant the City rested its case. The defendant then requested the court to rule that the City had failed to make any case and had failed to show the violation of any rule or ordinance. Defendant's request was overruled by the court. Defendant then testified that he was 57 years of age; that he lived in Hannibal, Missouri, and operated an automobile repair shop at 2219 Market Street in that city and had operated such shop for thirty years; that about one-third of his work was tractor work for farmers; that the rest of his work was repairing automobiles and tractors; that he did not sell or get paid for anything except his manual labor as a mechanic; that he had nothing for sale and that the only things he had upon his premises belonging to him were the tools of his trade as a mechanic; that he had no machine tools; that he had no lathe; that his tools were "Hand tools and wrenches and the like of that"; that he did have electric drills; that in January 1948 he received a statement from the City Clerk of Hannibal which was introduced as Defendant's Exhibit No. 1. It is as follows:
"Statement
To the City of Hannibal, Missouri, Dr
Hannibal, Mo., Jan. 1, 1948
Henry C. Minor
2219 Market
City
Merchants License Auto repair shop
Jan. 1, 1948 to July 1, 1948 $12.50
All license must be paid by Jan. 31, 1948."
Defendant further testified that he did all of his own work in repairing automobiles and tractors; that he did not buy or sell anything, not even new or used parts required in his repair work; that his customers would get any parts needed or that he would procure them and give the bill for them to his customers and the customers would pay the bill for such parts; that he received no commissions or profits on any of such parts used in repairing automobiles and tractors at his shop.
Defendant further testified that his Exhibit No. 1, the "Statement" showing that he owed the City $12.50 for a "Merchant's License" was the only notice of any kind that he had ever received from the City of Hannibal until he was arrested on the charge herein. In answer to a question on cross-examination as to whether or not he had at any time since the 1st of January, 1948, a license of any character on his place of business, defendant answered:
The following which occurred on redirect examination of defendant shows clearly the exact points of dispute between the parties and the rulings of the court thereon.
Further offers by counsel for defendant to have the defendant testify as to what constituted the machinery or equipment of a machine shop were overruled by the court, after which the following occurred:
Defendant's counsel then made an offer of proof to show by the witness that a machine shop is a place where power driven lathes, presses, drills and other power driven equipment are used practically entirely, and that to so equip a machine shop would mean an investment of $20,000 to $25,000 in the Hannibal community, and that the work and service done in a machine shop is not the same as work and service done in an automobile repair shop. The offer of proof was denied by the court.
Defendant contends that the court erred in finding him guilty and argues that the general ordinance under which he was convicted was and is invalid and void for the reason that such ordinance was not authorized by Section 7451, R.S.Mo.1939, Mo. R.S.A. § 7451. The statute really involved in this controversy is Section 7451, Laws Mo.1943, page 706, although counsel for the City of Hannibal refer to it as Section 7451a, Laws Mo.1941, page 453, and counsel for defendant refers to it as Section 7451, R.S.Mo.1939. A reference to page 706 Laws of Mo.1943 shows that ...
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