City of St. Louis v. Grafeman Dairy Co.

Decision Date28 June 1905
Citation89 S.W. 617,190 Mo. 492
PartiesCITY OF ST. LOUIS v. GRAFEMAN DAIRY CO.
CourtMissouri Supreme Court

Prosecution by the city of St. Louis against the Grafeman Dairy Company. There was a judgment of dismissal, and the city brings error. Reversed.

Chas. W. Bates and Wm. F. Woerner, for plaintiff in error. E. F. Stone, for defendant in error.

GANTT, J.

This action was commenced in the first district police court of the city of St. Louis for violation by defendant of section 10 of Ordinance 20,808, relating to the licensing and regulation of the sale of milk and cream and the inspection thereof, "by carrying on the business of a vender of milk and cream without a license, and by failing to register as such at the office of the health commissioner, and for failing to pay the registration fee." A motion to quash was lodged in the St. Louis court of criminal correction, which was sustained and the suit dismissed, from which action the plaintiff city appeals to this court.

There are 17 grounds assigned for quashing the action. Seven of these grounds, to wit, 1, 2, 6, 7, 11, 15, and 17, are abandoned in this court. The remaining general grounds are as follows: "(3) Because the ordinance upon which the prosecution is based and predicated is unconstitutional and void, in that it is repugnant to the provisions of section 28, art. 4, of the Constitution of the state, and also of section 13, art. 3, of the charter of the city of St. Louis, in that said ordinance contains more than one subject and the subject-matter of said ordinance is not clearly expressed in the title of the same. (4) Because said ordinance is unconstitutional and void for the reason that the same is unreasonable in its provisions, and it is practically impossible to comply with and enforce the same. (5) Because said ordinance is unconstitutional and void for the reason that it is repugnant to section 4, art. 2, and section 30, art. 2, of the Constitution of this state, in that it deprives the defendant of his natural rights to liberty and the enjoyment of the gains of his own industry and of his liberty and property without due process of law. * * * (8) Because the said ordinance is unconstitutional and void, in that the charter of the city of St. Louis contains no express grant to the municipal assembly of the city to enact the same. (9) Because said laws and ordinances upon which this prosecution is based are void and unconstitutional, in that they were enacted under and contain an unlawful delegation of power. (10) Because the laws and ordinance in question are void and unconstitutional, in that they are a class legislation and provide for taxation under the form and name of a license. * * * (12) Because said ordinance is void and unconstitutional for the reason that it is repugnant to section 1, art. 14, of the amendments of the Constitution to the United States, in that it deprives the defendant of his liberty and property without due process of law and denies to him the equal protection of law. (13) Because the ordinance and section upon which the prosecution is based is unconstitutional and void because it designates the wrong officer to collect the license fee, and is inconsistent with the state law, in that it gives neither the license commissioner nor license collector any authority or duty in the premises. (14) Because said ordinance and section upon which the charge herein is based and predicated is void and unconstitutional in this: it discriminates between merchants who sell and deal in different classes of merchandise and impose a license upon milk venders different from and in addition to regular merchant's license. * * * (16) Section 10, upon which this prosecution is based, is void and unconstitutional because it was not uniform in its operation upon all milk venders or merchants and is unequal, unjust, oppressive and unreasonable."

The record does not disclose upon which of the 17 grounds the court of criminal correction sustained the motion to quash the tenth section of Ordinance No. 20,808, as follows: "Sec. 10. Every person, firm or corporation who shall sell or offer for sale, expose for sale, dispose of, exchange or deliver or with the intent so to do as aforesaid, have in his or her possession, care, custody or control, milk or cream, in or from any store, stand, booth, market place, milk depot, warehouse dairy, cow stable or any building, erection or establishment of any kind, or shall transport, convey or deliver the same by wagon, carriage, or other vehicle, or by hand, shall first be licensed to do so, and shall register as a milk vender in the office of the health commissioner, and pay to the city collector the license fee provided for by this ordinance. Every person, firm or corporation selling or disposing of milk or cream at retail shall, within thirty days after this ordinance...

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35 cases
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