City of Lebanon v. Joslyn, 31457.

• Citation: 58 S.W.2d 289
• Decision Date: 03 March 1933
• Docket Number: No. 31457.,31457.
• Parties: CITY OF LEBANON v. JOSLYN.
• Court: Missouri Supreme Court

58 S.W.2d 289

CITY OF LEBANON v. JOSLYN.

No. 31457.

Supreme Court of Missouri, Division No. 2.

March 3, 1933.

Appeal from Circuit Court, Laclede County; J. H. Bowron, Judge.

Burness Joslyn was convicted of violating an ordinance of the City of Lebanon, and he appealed to the Court of Appeals, which affirmed the judgment, but certified the appeal to the Supreme Court on one judge's dissent .

Judgment reversed.

Lewis Luster, Allen & Allen, and Arthur W. Allen, all of Springfield, and John C. Grover, of Kansas City, for appellant.

Phil M. Donnelly, of Lebanon, for respondent.

FITZSIMMONS, Commissioner.

This case came to the writer upon reassignment. Appellant, a driver of a motortruck for a baking company at Springfield, Mo., was found guilty in the police court of the city of Lebanon, Mo., of violating a certain city ordinance levying a license tax on motor vehicles used upon the streets of Lebanon for the purpose of selling merchandise from such vehicles. He appealed to the circuit court of Laclede county and, upon trial anew upon an agreed statement of facts, he again was found guilty and sentenced to pay a fine. From this judgment he took an appeal to the Springfield Court of Appeals. The latter court affirmed the judgment [City of Lebanon v. Joslyn, 44 S.W.(2d) 258]. But upon the dissent of one of its judges the Springfield Court of Appeals certified the cause to this court.

The problem of law which this appeal presents this court in Division No. 1, by a unanimous decision, solved and settled in the case of City of Ozark v. Hammond, 49 S.W.(2d) 129, not yet reported [in State Report]. The Springfield Court of Appeals, in its opinion in the instant case (City of Lebanon v. Joslyn, 44 S.W.(2d) loc. cit. 260), deemed it unnecessary to give its reasons for its affirmance of the judgment because the facts were very similar to the facts in the City of Ozark Case which the Court of Appeals decided on the same day that it ruled on the instant case. City of Ozark v. Hammond, 44 S.W.(2d) 254. The City of Ozark Case came to this court from the Springfield Court of Appeals, as did the instant case, by certificate upon a dissenting opinion. This court, by its opinion in City of Ozark v. Hammond, supra, reversed the judgment which the Springfield Court of Appeals had affirmed. As we find the facts in this case to be similar and the question of law to be the same as are set forth in the opinion of this court in the City of Ozark Case, we are obliged to reverse the judgment in this case.

The agreed statement of facts shows that the city of Lebanon enacted a certain Ordinance No. 733, entitled, "An ordinance levying a license tax against motor vehicles used or operated upon the public streets, avenues and alleys of the City of Lebanon, Missouri, for the purpose of selling, exchanging, trading or trafficking in personal property, goods, wares and merchandise, from said motor vehicles; providing for the collection of said license tax and providing for a penalty for the violation of this ordinance." The tax was $35 per year for each motor vehicle of one-half ton or less capacity and $50 per year for each motor vehicle of over one-half ton capacity.

Colonial Baking Company of Springfield Mo., sold its bread and bakery products to merchants in Lebanon and other towns to be resold to the retail trade. It used an automobile truck every weekday for the purpose of so selling and delivering its products. Appellant drove this truck and acted as agent of the Colonial Baking Company in making these sales and deliveries. The baking company paid the state motor license fee upon the truck required by statute and the like city license imposed by ordinance of Springfield. It did not pay the license levied by Ordinance No. 733 of the city of Lebanon, and appellant was acting as the driver and agent of the Colonial Baking Company in Lebanon on the day that he was alleged to have violated the ordinance according to the complaint...