City of Milan v. Allen

• Decision Date: 01 April 1915
• Docket Number: No. 17011.,17011.
• Citation: 175 S.W. 933
• Parties: CITY OF MILAN v. ALLEN.
• Court: Missouri Supreme Court

175 S.W. 933

CITY OF MILAN v. ALLEN.

No. 17011.

Supreme Court of Missouri, Division No. 1.

April 1, 1915.

Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.

Ossie Allen was convicted of violating an ordinance of the City of Milan. On appeal to the circuit court he was again convicted, and appeals. Transferred from the Kansas City Court of Appeals. Reversed.

Malcolm S. Garrard, of Kansas City, for appellant. John W. Clapp and Earl F. Nelson, both of Milan, for respondent.

BROWN, C.

This case comes to us on a certificate of the Kansas City Court of Appeals that it involves the construction of article 2, §§ 28, 30, of the state Constitution. It originated before the mayor of the city of Milan, a city of the fourth class, in Sullivan county. Two other defendants, George Czarlinsky and P. V. Humphreys, were impleaded with the appellant in an information consisting of two counts. Czarlinsky and Humphreys were acquitted on the first count, and all the defendants on the second, which charged that the defendants did "willfully and wrongfully attempt to sell by sample and take orders for goods, wares, and mechandise from Mrs. John Dennis and divers other persons." From the conviction of appellant upon the first count, he appealed to the circuit court for Sullivan county, where he was tried, convicted, and fined $15, from which this appeal was taken to the Kansas City Court of Appeals. The count upon which he was tried and convicted is as follows:

"John W. Clapp, city attorney, comes and makes complaint to John W. Bingham, mayor of the city of Milan, aforesaid, that Ossie Allen, George Czarlinsky, and P. V. Humphreys did on the ______ day of November, 1910, within the corporate limits of the said city of Milan, in Sullivan county, state of Missouri, then and there willfully and unlawfully deal in the selling of goods, wares, and merchandise as a peddler, by going from place to place on foot for the purpose and by then and there selling divers goods, to wit, one blanket and one rug to John Dennis for the sum of _____ dollars, and divers other articles, to this informant unknown, to divers persons whose names are to this informant unknown, without then and there having a peddler's license, or any other legal authority to sell the same, contrary to the provisions of section 61b, of an ordinance of said city entitled an ordinance in relation to miscellaneous license and against the peace and dignity of the city of Milan."

A jury of 18 men was called for the trial, and, when the list was given to the defendant, he asked that a full jury of 20 men be called, as provided by law in cases of misdemeanor. This was refused by the court, and the defendant excepted. He then asked that he be permitted four peremptory challenges, which was also refused, and he excepted.

The ordinance under which the prosecution was had was introduced in evidence over appellant's objection by the production of a book entitled "Record City of Milan," kept in the office of the city clerk, in which manuscript copies of the ordinances of the city were written. This ordinance was not attested by the city clerk, and was entitled:

"An ordinance amending article 10 of chapter 1, of an ordinance of the city of Milan, entitled `Miscellaneous License,' approved May 10, 1899, by repealing section 61a, and enacting in lieu thereof a new section to be known as 61b."

This section seems to contain the entire license scheme of the city, imposing license on various callings, including the following:

"Peddlers, two dollars per day, for each person.

"Peddlers defined: Whoever shall deal in the selling of patents, patent rights, patent or other medicine, lightning rods, goods, wares or other merchandise of any description, except books, maps and stationery, and except also fruit, vegetables, butter and eggs, the product of the person selling the same, produced on his own farm, from house to house is deemed to be a peddler."

An ordinance prescribed the penalty for violation of the foregoing at a fine of not less than $5 nor more than $100, or imprisonment in the city jail, not less than 30 days nor more than 90 days, or by both fine and imprisonment.

It seems to be conceded in all the evidence that the appellant was one of a number of solicitors, working in Milan under the direction of Czarlinsky, securing orders for household goods, including silverware, blankets and rugs, for the Price Installment Mercantile Company, of Topeka, Kan. They went from house to house to obtain orders, which were turned in to Czarlinsky, and by him sent to the company at Topeka, which shipped the goods to itself at Milan, where they were received by Czarlinsky or one of the other agents, for delivery to the purchasers. The solicitors carried samples which were used in their work. These sales were made upon the monthly installment plan, and at the time of taking the order a contract was made with the purchaser to that effect.

The evidence for the plaintiff tended to prove: That on or about December 2, 1910, the defendant went to the home of one of the plaintiff's witnesses, Dennis, with three, four, or five blankets. That he sold one of them to Dennis for $8, wrote a contract, which Dennis signed, and left the blanket. Nothing was paid then or at any other time. That the same afternoon he met Mrs. Dennis at her mother's home, told her that he came back to get that blanket to take orders with that afternoon, and that he would return it that evening. That she told him "all right," and went back to her home with him, got the blanket off the bed, folded it up, and handed it to him. She says he never returned it.

The testimony of the defendant tended to prove that the Dennis transaction on December 2d was the delivery of a blanket that Dennis had ordered several days before, and which had been sent from Topeka. Mrs. Dennis also testified that she met appellant at her mother's home two or three days before this transaction, where the following occurred:

"Q. What did he say, if anything, when he met you there? A. No more than any other agent would have said. He was out to make sales, of course, and that was his business. Q. He wanted to sell you or take an order for blankets? A. No, sir; he never spoke to me about the blankets. He asked my mother to buy, and Mamma told him she didn't care for the blankets. Mr. Allen didn't insist on any of us to buy the blankets."

Mrs. Losey, who had been a customer of the Price Company testified that appellant came to her home and urged her to buy silverware, which she refused. He then suggested blankets, and she told him she might use blankets. He said, "I will come down and show you some." She said, "If you do, come about noon." He came to her residence while she and her husband were eating dinner, bringing two samples, one of which was soiled. Her husband objected to purchasing on the ground that they had their living to make, got work from the merchants, and he would prefer that she buy from them. On cross-examination she testified as follows:

"Q. Wasn't something said by you in regard to him selling them to you right then in case you did buy them, and him making the reply that he would...