City of St. Louis v. James Braudis Coal Co.

• Decision Date: 05 March 1940
• Docket Number: No. 25014.,25014.
• Parties: CITY OF ST. LOUIS v. JAMES BRAUDIS COAL CO.
• Court: Missouri Court of Appeals

137 S.W.2d 668

CITY OF ST. LOUIS v. JAMES BRAUDIS COAL CO.

No. 25014.

St. Louis Court of Appeals. Missouri.

March 5, 1940.

Appeal from St. Louis Court of Criminal Correction; James W. Griffin, Judge.

"Not to be reported in State Reports."

The James Braudis Coal Company was found guilty of violating an ordinance of the City of St. Louis, and it appeals.

Reversed and remanded.

Joseph C. Hopewell and Selden Blumenfeld, both of St. Louis, for appellant.

F. H. Wayman and Martin Hart, City Counselors, both of St. Louis, for respondent.

BECKER, Judge.

This is an appeal from a prosecution under a city ordinance, and from a judgment finding defendant guilty of the offense of having, on August 4, 1937, furnished the St. Louis Board of Education coal at the Blair School "other than as contracted for without notice to the purchaser thereof." The ordinance upon which appellant was prosecuted (Section 1501, Rev.Code of General Ordinances of 1926 of the City of St. Louis) is in its title, words and phrases as follows: "Furnishing coal other than as contracted—misdemeanor—penalty.— Any person, firm, copartnership, or corporation having contracted to furnish a certain kind of coal, and who shall, without notice to the purchaser, furnish a kind of coal different from that called for by the contract, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars."

Defendant Braudis is engaged in the retail coal business in St. Louis, Missouri, buying coal from various coal mines in Illinois and transporting the same in trucks to large consumers in St. Louis, Missouri. In June, 1937, upon competitive bidding, the Board of Education of the City of St. Louis awarded Braudis a contract to supply it with eight thousand tons of 6"×2" egg size coal. One of the specifications of the contract, so far as material here, was that "* * * the coal shall be strictly first class shaker screened, of the best quality produced by the mine designated. The coal shall be that which passes through a screen having 6 inch round hole perforations and that passes over a screen having 2 inch round hole perforations, the screens to have an unobstructed screening area of not less than 48 square feet. The coal is to be forked from cars or storage bins to the delivery vehicle with a fork having space not less than 1¼" between tines or run over an approved loading crane."

To establish the charge, the city proved that a truckload of coal delivered by Braudis under this contract to the Blair School on August 4, 1937, was lump coal larger in size than 6"×2" egg size coal called for by the specifications. There is no contention but that the coal in all other respects fully met the contract requirements.

Appellant contends that the trial court erred in overruling defendant's demurrer to the complaint in the form of a motion to quash the information, for the reason that the information failed to allege facts sufficient to constitute a charge against defendant, and does not state a cause of action against defendant "under a proper constitutional interpretation of section 1501 Rev. Code of the Laws of the City of St. Louis." In support of this assignment of error appellant contends that the furnishing of coal, as in the instant case, of a size larger than that called for in the specifications of the contract in question, was not furnishing "a kind of coal different from that called for by the contract" within the meaning of said section 1501 of the Rev.Code of 1926 of St. Louis, for otherwise the ordinance must be construed as unreasonable and oppressive. To this, upon the record before us, we cannot agree.

We are in full accord with appellant, that the primary rule of construction, whether of statutes or ordinances, is to ascertain and give effect to the lawmakers' intention, and that since such laws are presumably passed in the spirit of justice and for the welfare of the community, they should be interpreted, if possible, so as to further that purpose, and that frequently courts, to attain that end, look less to the letter or words of a statute or ordinance and more to the context, the subject-matter, the consequence and effect, and the reason and spirit of the law in endeavoring to arrive at the purpose of the lawgiver.

Appellant contends that the only purpose of the ordinance is to prevent unscrupulous dealers from duping the unsuspecting coal buying public by substituting inferior grades of coal for that ordered, since, of necessity, the public "is forced to rely upon the word of the dealer in accepting delivery of the grade of coal ordered," and that "there can be no doubt whatsoever that the remedy contemplated by the ordinance for violation thereof was intended solely to punish where fraud or false representations are shown, and there is a reliance upon the false and fraudulent representations, and in the further event that the person so relying has been damaged." This latter is true, argues appellant, because the ordinance would be unreasonable, absurd and void if it were to be held that it applies, as in the instant case, because of a failure to furnish the particular size of coal contracted for, though the coal delivered in all other respects measured up to the specifications of the contract.

To this we cannot agree, for in our view, upon this record, whether the size of the coal specified in the contract fell within the purview of the ordinance was properly a question to submit to the jury.

J. J. Harding, adduced as a witness on behalf of the city, testified that he had had "35 years' experience in the coal industry as miner, mine operator, engineer, and as a retail coal dealer." He further testified that "lump coal will not burn as efficiently as 6"×2" size coal in a downdraft boiler because when lump coal is fired the smaller size coal burns out first leaving a void in the fire box through which air will pass, thereby cooling the box—that produces greater smoking and less efficiency. By firing 6"×2" egg size coal the fire box is even and the air surface in the boiler is even; * * * there are greater impurities in the larger lumps and the large lumps are held together by the impurities. * * * The ash content is higher in the lump coal than in the egg coal."

Clair Luster, a witness for defendant, testified that coal from his particular mine was specified in the Braudis contract in question; that "the term `kind of coal' in the coal industry means `grade' of coal. * * * The word `kind' refers to quality and not size or shape."

Charles L. Barr, a witness for defendant, testified that he was Assistant Supply Commissioner of the Board of Education of the City of St. Louis; that, as part of his duties, he drew up the specifications for the bids upon the coal in question, and that he recommended Braudis as the lowest bidder. In answer to the question, "what was the purpose of inserting in the contract your recommendation for 6"×2" egg coal if you wanted ordinary coal such as this?" he answered: "I presume that the size 6"×2" was specified because it was the most convenient size and could be bought cheaper than six inch lump."

"Q. What do you mean, the most convenient? A. Because it can be used generally. Some of the schools are old schools which have different types of heat. We can use screenings in some schools and two inch lump in some schools, and six inch lump in some schools."

Having in mind the testimony set out above by defendant's witness Luster, to the effect that the term "kind" of coal in the coal industry means "grade" of coal, we note that this particular contract, under the caption "Grading of Coal-Bituminous 6"×2" egg coal," among other things grades the coal by size or shape, as appears from the following excerpt therefrom: "The coal shall be strictly first class shaker screened of the best quality produced by the mine designated. The coal shall be that which passes through a screen having 6" round hole perforations and that passes over a screen having 2" round hole perforations. The screens to have an unobstructed screening area of not less than 48 square feet. The coal is to be forked from cars or storage bins to the delivery vehicle, with a fork having spaces not less than 1¼" between tines or run over an approved loading screen." Thus the specification of the contract itself, relative to the grading of the coal, calls for Bituminous 6"×2" shaker screened coal, and minutely sets out the requirements for assuring that the coal shall be of the size contracted for.

Therefore, since there is testimony of one of defendant's own witnesses that "kind of coal" means "grade of coal," and in 35 C.J. 914, we find the word "kind" defined as meaning "class; grade; sort"; and the fact that the contract itself, as to "grade of coal" specifies particularly "Bituminous 6"×2" egg coal"; and that defendant admitted that some of the coal delivered under this contract by the defendant was not 6"×2" egg coal, but was lump coal; and that witness Harding testified that lump coal will not burn as efficiently as 6"×2" egg coal; and that it produces greater smoke and less efficiency; and that there are greater impurities in the larger lump; and that its ash content is higher, the question of the size of the coal in the instant case did fall within the purview of the ordinance (sec. 1501 Rev. Code of St. Louis, 1926), making it a misdemeanor to deliver "a different kind of coal other than as contracted for," and defendant's demurrer to the complaint in the form of a motion to quash the information was properly ruled.

Appellant insists that the record discloses a failure of proof of a necessary...