City of St. Louis v. Jackson

• Decision Date: 31 March 1857
• Citation: 25 Mo. 37
• Parties: CITY OF ST. LOUIS, Respondent, v. JACKSON, Appellant.
• Court: Missouri Supreme Court

25 Mo. 37

CITY OF ST. LOUIS, Respondent,

v.JACKSON, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. The City of St. Louis has power under its charter (see Rev. Ord. 1856, pp. 138, 518), to provide by ordinance that “no person, not being the lessee of a butcher's stall, shall sell, or offer for sale, in market, or in any other place, any fresh meat in less quantities than one quarter.”

Appeal from St. Louis Criminal Court.

Wingate, for appellant.

I. Section 9, of article 5, of the ordinance relating to markets is void. 1st, There was no power vested in the city under its charter to pass such an ordinance. (Amended city charter of March 3d, 1851; Taylor v. Griswold, 2 Green, 223; Phillips v. Wickam, 1 Page, 598; 2 Kent, 295.) Said section was in restraint of trade. (Angell & Ames on Corp. §§332-8; Dunham v. Trustees of Rochester, 5 Dow. 462; Freeholders v. Barber, 2 Halst. 64.)

II. The necessity of introducing the charter in evidence is not dispensed with.

Jecko (city attorney), for respondent.

RYLAND, Judge, delivered the opinion of the court.

This was a suit for a penalty given by an ordinance of the city for retailing fresh meat in quantity less than a quarter, without being the lessee of a butcher's stall. There was a trial and judgment against defendant in the Recorder's Court from which he appealed to the Criminal Court. Judgment was again rendered against the defendant, and he brings the case by appeal to this court.

It appears from the bill of exceptions that on the trial the plaintiff read in evidence section 9, of the 5th article, of an ordinance of the city of St. Louis relating to markets, as follows: “No person, not being the lessee of a butcher's stall, shall sell, or offer for sale, in market, or in any other place, any fresh meat in less quantities than one quarter;” also read section 29 of said act, as follows: “Whoever shall violate any of the provisions of this article, or shall fail to obey any legal order of the market-master in relation to any matter placed under his official charge, shall forfeit and pay not less than three nor more than one hundred dollars.” The plaintiff also introduced John Newcomb, a witness, who testified that defendant, on the 14th day of March, 1856, kept a meat shop on the corner of Tenth and Wash streets, in said city of St. Louis; that witness was in defendant's shop on that day, and other days previous to that day, and saw defendant and his wife sell fresh meat to different persons by a less quantity than one quarter; and that he had seen defendant's wife and defendant attending in said shop, and selling fresh meat, to different persons, by a less quantity than one quarter, at several times from the first to the middle of March. On cross-examination witness stated that he did not see defendant sell any meat on the 14th of March; thought that defendant was not in the shop at the time his wife was selling meat on the said 14th day of March; which was all the evidence introduced on both sides. The jury found the defendant guilty, but were unable to fix the amount of the fine; the court fined him ten dollars, and gave judgment for that sum and costs. The record shows no exception taken to any evidence given on the trial below, and no instructions were asked or given as appears from the record.

The defendant moved in arrest of judgment, stating that, 1st, there was no sufficient cause of action appearing on the face of the complaint filed by the plaintiff herein against the defendant; 2d, there was no power vested in said City of St. Louis or its officers by virtue of any law or charter erecting said city into a corporation, whereby said city as a corporation was permitted, empowered or authorized to ordain, establish or enforce said section 9, of article 5, of ordinance No. 3502, in relation to markets, at the time of its adoption; 3d, that said section (and for a...