City of St. Charles v. Hackman

• Decision Date: 24 March 1896
• Citation: 34 S.W. 878,133 Mo. 634
• Parties: CITY OF ST. CHARLES v. HACKMAN.
• Court: Missouri Supreme Court

34 S.W. 878

133 Mo. 634

CITY OF ST. CHARLES v. HACKMAN.

Supreme Court of Missouri, Division No. 1.

March 24, 1896.

CRIMINAL LAW — APPEAL BY CITY — REVIEW — WAIVER OF JURY — OCCUPATION LICENSE TO FIRM — RIGHTS OF CONTINUING PARTNER.

1. A city may appeal from a judgment for defendant in a prosecution for violation of an ordinance.

2. The fact that a city is a party to a prosecution for violation of a city ordinance does not give the supreme court jurisdiction of an appeal from the judgment, since it is not a political subdivision of the state, within the provision of the constitution relating to such jurisdiction; but where a question is raised, in such case, involving a construction of the federal and state constitutions, the supreme court has jurisdiction.

3. In a prosecution for violation of a city ordinance, defendant may waive his right to a jury trial by submitting the case to the court on a statement of admitted facts.

4. Where, in a prosecution for violation of a city ordinance, the parties submit the case on a statement of admitted facts, and the prosecution moves for a new trial, assigning as error that the verdict and judgment in favor of defendant were against the law, etc., and excepts to the overruling of its motion, the finding on the agreed facts is reviewable in the supreme court, though no declarations of law were asked or given during the trial.

5. A license for the privilege of carrying on a particular business in a city as required by ordinance, for a period of one year, is not a contract for the whole period, within the protection of the constitution.

6. Where an ordinance for the licensing of a particular business provides that the dissolution of the firm shall terminate the right of either partner to the protection of the license issued to it, on dissolution of a firm holding such license the continuing partner cannot object to the enforcement of the ordinance on the ground that it is an invasion of a contractual right protected by organic laws, since, if the license is a contract, the ordinance is a part of it.

7. An occupation license for revenue purposes, issued to a firm, protects one of its members who continues to prosecute the business at the same place on the retirement of his copartner, in the absence of anything in the ordinance to indicate a different purpose.

8. An ordinance requiring a license for the privilege of conducting a particular business declared that the location of the business should not be changed without the mayor's consent, and that the license should not be transferable, or used for the benefit of any person other than the one to whom it was issued. Held, that such provision did not indicate that where a

license was issued to a firm, and one of the partners retired, the license should not protect the continuing partner.

Appeal from circuit court, St. Charles county; E. M. Hughes, Judge.

Prosecution of Frank Hackman, Jr., and Frank Hackman, Sr., for selling and offering for sale fresh meat in the city of St. Charles without first obtaining a license as required by ordinance. From a judgment of conviction against Frank Hackman, Jr., only, he appealed to the circuit court. From a judgment acquitting defendant, the city appeals. Affirmed.

The ordinance of the city referred to in the opinion of the division is as follows:

"An ordinance providing for licensing and regulating meat shops or market places in the city of St. Charles, and state of Missouri.

"Be it ordained by the city of St. Charles, in the state of Missouri, as follows:

"Section 1. No person, firm, corporation or association of persons shall open or keep in the city of St. Charles, in the state of Missouri, a meat shop or market place without first having obtained a license therefor from the city collector; and any person, firm, corporation or association of persons desiring to engage in the business of keeping a meat shop or market place shall first obtain from the city collector a license for which he, she or they shall pay said collector, for the use of the city, the sum of fifty dollars per year. Such license shall authorize and empower such person, firm, corporation or association of persons to sell in their shops all kinds of sound and wholesome fresh and salt meats, sausage and sausage meats, whether made by them or not, for one year from the date of such license; provided that this section shall not be so construed as to include grocers, who sell hams, shoulders, sides or middlings, pickeled pork, dried beef, bacon and smoked sausage; and provided further, that it shall not be so construed as to apply to persons selling fresh meat of any animal, sound and wholesome for food in quantities not less than one quarter of such animal, and poultry and game of all kinds. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than twenty-five, nor more than one hundred dollars.

"Sec. 2. Every such license shall contain the name of the person in whose favor it is issued, and shall designate the location where the business is to be carried on, which location shall not be changed without the consent of the mayor endorsed on such license, but such license shall not be transferable or used for the benefit of any person other than the one to whom it shall have been issued.

"Sec. 3. All such licenses shall be issued in blank, signed by the mayor and countersigned by the city clerk, and said clerk shall deliver the same to the city collector under the same rules and regulations and fees as other blank licenses are delivered, and the collector shall account therefor as in other licenses.

"Sec. 4. All licenses and transfers of location shall be duly registered by the city clerk in a book kept for such purpose, which register shall contain the name of the owner, the date of issue, the location, date of transfer and the amount paid therefor.

"Sec. 5. Every person licensed as herein provided, shall keep his store or shop properly cleansed and free from all foul smells and nuisances of every description, and on failure so to do, shall be deemed guilty of a misdemeanor, and on conviction therefor, be fined not less than five nor more than fifty dollars.

"Sec. 6. It shall be the duty of the city marshal to exercise a general supervision over meat shops or market places, and see that the provisions of this ordinance are fully complied with; it shall also be his duty to examine the quality, and condition of all articles offered for sale at such meat shops or market places, whenever notified so to do by some reputable person, which notice shall be in writing, and shall set forth the grounds of complaint; it shall also be his duty to test the accuracy of the scales, weights and measures used in such meat shops or market places, and if found to be correct to stamp the same with a suitable seal, to be provided by the city, and deliver to the owner a certificate thereof, for all of which certificate and seal he shall receive a fee of fifty cents from the owner; and he shall stamp with the letter `C' each scale, weight or measure found to be incorrect, and any person using such condemned scale, weight or measure in his business and dealing with his customers, or shall in any manner erase or obliterate the letter `C' so placed on said scales, weights or measures, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined not less than three nor more than one hundred dollars for each offence.

"Sec. 7. Every licensed keeper of a meat shop or market place who shall knowingly offer for sale, the flesh of any animal which shall have died from sickness, or in any other than the usual manner of animals being slaughtered for food; or shall offer for sale any unsound meat, fresh or salt, or any other unwholesome article of food or the flesh of any animal commonly deemed unwholesome or unfit for food, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty-five nor more than one hundred dollars and in addition thereto forfeit his license.

"Sec. 8. All...