City of St. Louis v. Bender

• Citation: 154 S.W. 88,248 Mo. 113
• Parties: CITY OF ST. LOUIS v. BENDER.
• Decision Date: 28 February 1913
• Court: United States State Supreme Court of Missouri

154 S.W. 88

248 Mo. 113

CITY OF ST. LOUIS v. BENDER.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

1. MUNICIPAL CORPORATIONS (§ 642)—RECOVERY OF PENALTY—REVIEW BY WRIT OF ERROR.

While the criminal procedure is applicable in a manner to quasi civil suits to recover the penalty for violating a city ordinance, the city is permitted to bring a writ of error to a judgment discharging defendant.

2. LICENSES (§ 40)—PLUMBERS—APPRENTICES.

The term "apprentice" includes all persons, irrespective of age, who by contract place themselves in a position to learn a trade and undertake to do so in good faith, so that a man 32 years of age could become a plumber's apprentice, within an ordinance making it a misdemeanor to work at plumbing without a license, excepting however, an apprentice working for a licensed plumber.

Error to St. Louis Court of Criminal Correction; Wilson A. Taylor, Judge.

Gus Bender was charged with engaging in the business of plumbing without a license, contrary to a city ordinance, and was discharged, and the city brings error. Affirmed.

This cause had its origin in the police court in and for the city of St. Louis, by information as follows: "To the Police Justice of the Second District Police Court of the City of St. Louis, Missouri, March 20, 1908. State of Missouri, City of St. Louis.—ss.: City of St. Louis, March 19th, A. D. 1908. Gus Bender. To the City of St. Louis, Dr. To one hundred dollars for the violation of an ordinance of said city, being Ordinance No. 23007, chapter ____, article ____, section 10. Approved April 1, 1907. In this, to wit: In the city of St. Louis, and state of Missouri, on the 19th day of March, 1908, the said Gus Bender did then and there engage in and work at the business of plumbing as journeyman plumber without having secured a certificate of qualification or license as required to do, and not being an apprentice, to wit, at and in the building, No. 3207 Cass avenue, contrary to the ordinance in such cases made and provided. E. P. Creecy, Chief of Police of the City of St. Louis." In the police court the defendant was convicted and fined $100. From that judgment he appealed to the St. Louis Court of Criminal Correction. In the Court of Criminal Correction the record discloses that defendant interposed a demurrer to the complaint, thus stated: "Now at this day comes defendant and demurs to the information herein for reasons following: First. The information fails to allege facts sufficient to constitute an offense. Second. The information fails to allege facts sufficient to show a violation of Ordinance No. 23007, section 10, approved April 1, 1907, of the city of St. Louis. Third. Ordinance No. 23007, section 10, of the city of St. Louis, upon which the information herein is bottomed, is unconstitutional and void. Fourth. Because said ordinance is in violation of section 30, article 2 of the Constitution of Missouri. Fifth. Because said ordinance is in violation of section 1 of the fourteenth amendment to the Constitution of the United States. Sixth. Because under the charter of the city of St. Louis the municipal assembly has no power or authority to pass said ordinance." This the court overruled, and thereafter, on the same day, a trial by jury was waived and the cause tried out upon the facts by the court, who at the end of the trial, after some days' consideration of the law and facts, entered a judgment discharging the defendant. From this judgment the city of St. Louis sued out its writ of error here, and the proceedings of that court under the writ of error is the case now here. Further facts and the points made will be noted in the course of the opinion.

Lambert E. Walther and G. B. Arnold, both of St. Louis, for plaintiff in error. T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, all of St. Louis, for defendant in error.

GRAVES, J. (after stating the facts as above).

1. Question is raised as to the right of the city to sue out this writ of error. In the view of the facts involved in this record we have concluded not to go into the field of authorities, a discussion of which would be necessary, and many of which are not cited in respondent's brief. Such a discussion would involve a review of our cases on the character of a suit to recover a penalty for the violation of our city and town ordinances. We have differently defined the suit as civil or quasi civil. We have applied in a way the criminal procedure to such actions, but we have always entertained an appeal by the city where the defendant was discharged of liability. When a defendant is acquitted in a criminal case, upon a trial either before court or jury (as in a misdemeanor he could be so tried by court, if he waived a jury), we have looked upon such acquittal as the end of the case. The state in such case is debarred of an appeal. But as stated above, when the municipality loses in one of these city actions to recover a penalty, the courts of Missouri have always entertained such an appeal. If the case is such as could be reviewed upon appeal we can see no good reason for saying that it could not be reviewed upon a writ of error. In view of our conclusions upon the remainder of this record, we shall not delve into further case law, but proceed upon the theory of the case being properly here.

2. The real crux of this case is whether or not the court properly acquitted and discharged the defendant under the evidence. The charges we have fully set out. The city relies upon section 10 of Ordinance No. 23007, which section reads: "Any person, firm or corporation or the agent or officer for any such person, firm or corporation, who shall engage in or work at the business of plumbing in the city of St. Louis, except apprentices working for duly licensed plumbers, without first having been duly licensed as required by the provisions of this ordinance, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than ten dollars nor more than one hundred dollars for each offense." It will be noticed that this ordinance excepts "apprentices," and the meaning of this term as it appears here, and as of course it must be determined from the whole body of the act, is one of the questions in the case. This defendant was tried upon the facts and found not guilty. The city contends that the word "apprentices" as used in the act has an exceedingly technical meaning, and only applies to boys, duly "articled" to some mechanic, and could not apply to this defendant, whom as we take it is a man of mature years (32 years) trying to learn the business of plumbing. According to the evidence he had tried to pass the examination for the position of "journeyman plumber," but failed. After such failure he applied to Mr. Hooebin, whom we take it was a licensed plumber, because such fact is not denied in the briefs or record, and there is some evidence tending to show that he had given to defendant "a letter of apprenticeship."

One side of the case is thus described by the defendant, Gus Bender: "Direct examination, by Mr. Rowe: Q. What is your name? A. Gus Bender. Q. How old are you? A. Thirty-two. Q. Were you working at this on the 19th day of March at the building 3207 Cass avenue? A. Yes, sir. Q. Now state what you were doing there. A. I was getting the soil pipe ready; that is, Mr. Hobein just had taken me there to give me the instructions what I should do— Mr. Arnold: Well, I object to that. A.—and just as he left these fellows came in—Mr. Arnold: Hold on there. Just a minute now. By the Court: Q. What instructions did he give you? A. To run pipe. How I should run the iron pipe up—soil pipe. When I hired myself out to Mr. Hooebin he asked me if I was a plumber. I told him: `No; I failed to pass the examination'—but he seen I had to have some experience and from instructions I could go on with the work. I showed him who I worked for before he said, `All right,' and every day he came to look at my work. I served under his instructions, and was working at the soil pipe about 15 minutes when these fellows came in. They asked me if I was a plumber. I said: `Yes; I am doing plumbing work here and serving as an apprentice under instructions' —and one, this fellow here, he got the policeman, and when the policeman came to me I showed him a letter Mr. Hooebin had written to me to show I was working as an apprentice. The letter didn't do any good. He took me to the police station anyhow. Q. How long had you worked at the plumbing trade? A. I worked at the plumbing trade about a year on the outside. Q. Now, what actual plumbing work did you do on this building, 3207 Cass avenue? What was it that you actually did in the way of plumbing work? A. I just had cut one length of pipe—that's all I had done—when these fellows came in. Q. Had you made any connections of any kind? A. No; not there. Q. And you had done no plumbing work at all there, had you? A. Not right then; I just had got started. Mr. Arnold: That calls for a conclusion, of course. Mr. Rowe: Well, I am asking him what plumbing work he had done there; that's what the court wants to know. What plumbing work there, if any, had you done in that building? A. Just had cut one length of pipe and started the furnace. That's all I had done. Q. Now are you learning the trade of plumbing? A. Yes, sir; I am learning it. Q. And who are you working under? A. I am working under Mr. Flagg, under instructions right now. Q. And that was all the work that you did on this occasion, was it? A. Yes, sir. Q. That's all." His cross-examination does not shake this portion.

By the record the city undertook to have experts to testify that an apprentice meant an "articled boy" under the age of 21, or rather from 15 to 16 years of age, and that as such he could not do the work which defendant was then doing. It should be said...