City of St. Louis v. Weitzel

• Decision Date: 18 June 1895
• Parties: CITY OF ST. LOUIS v. WEITZEL.
• Court: Missouri Supreme Court

31 S.W. 1045

130 Mo. 600

CITY OF ST. LOUIS v. WEITZEL.

Supreme Court of Missouri, Division No. 2.

June 18, 1895.

PROSECUTION UNDER ORDINANCE — FAILURE TO HAVE LICENSE — REMOVAL OF GARBAGE — EVIDENCE — REPEAL OF ORDINANCE — REQUIREMENT OF LICENSE PLATE.

1. On a prosecution for violation of a city ordinance providing that "no person shall haul or remove garbage from hotels" without first obtaining a license, and requiring "carts or wagons" used for the purpose to have license plates attached, the complaint may describe the offense in the language of the ordinance, and need not specify the particular section of the ordinance violated, the particular hotel from which garbage was taken, or whether a cart or wagon was used.

2. An objection to a complaint on the ground of duplicity should be taken by a motion to strike out.

3. On a prosecution for doing a certain act without a license, in violation of an ordinance, the burden is on the defendant to show that he had a license.

4. Where an ordinance requires owners of wagons used for a particular purpose to take out licenses, and have license plates attached to the wagons, proof that no license was taken is conclusive proof of the absence of the license plate.

5. A city ordinance entitled "An ordinance regulating the keeping, storing, and handling, and licensing the removal of garbage, * * * and to repeal" a prior ordinance on the same subject, "and prescribing the penalties for the violation thereof," does not violate a charter provision that no bill shall contain more than one subject, which shall be clearly expressed in its title.

6. An ordinance regulating the keeping and removal of "garbage, grease, offal, or other refuse matter composed of either animal or vegetable matter," is not in conflict with a prior one declaring that "the word `garbage' shall be construed to mean offal and other refuse matter composed of either animal or vegetable substances," or one making it include "every accumulation of both animal and vegetable matter, liquid or otherwise, that attends the preparation, decay, and dealing in or storage of meats, fish, fowls, birds, or vegetables," so as to render applicable a city charter provision that no ordinance conflicting with a previous ordinance shall be valid until the prior ordinance is expressly repealed.

7. Under a charter empowering a city to impose a tax on vehicles for street use, and also a tax on occupation, a city may impose a license tax on vehicles for use in particular occupations, in addition to that imposed for street use.

8. A city may require a license plate to be placed on a vehicle licensed to be used in a certain occupation, although it already has a license plate for street use attached, and may charge for the same the reasonable expense of furnishing it.

9. A provision of a city ordinance requiring one hauling garbage to first obtain from the city collector a license to do so, and prohibiting the collector from issuing such license unless the applicant file a certificate from the board of health to the effect that he has filed certain statements, is not invalid as delegating the taxing power to the board of health.

Appeal from St. Louis court of criminal correction; James R. Claiborne, Judge.

Action by the city of St. Louis against Joseph Weitzel to recover a penalty for violation of a city ordinance. From a conviction and the fine imposed, defendant appeals. Affirmed.

The defendant was prosecuted under the provisions of a certain ordinance, — the complaint being the following: "City of St. Louis, November 15, A. D. 1892. John Weitzel, to the City of St. Louis, Dr. To two hundred dollars for the violation of an ordinance of said city, entitled `An ordinance regulating the keeping, storing and handling and licensing the removal of garbage, grease, offal and other refuse matter composed of either animal or vegetable matter, and to repeal section 394, article 10, chapter 14, and sections 507 and 514, article 16, chapter 14, of the Revised Ordinances of 1887, and prescribing penalties for the violation thereof, and fixing a license tax on vehicles used for the removal of garbage,' being Ordinance No. 16,863, approved August 12, 1892, in this, to wit: And it is further charged that the said John Weitzel on the 15th day of November, 1892, and on divers other days and times prior thereto, did unlawfully interfere with, remove, and disturb the garbage, offal, and other liquid substance placed in boxes, barrels, and tubs at and upon the premises of Frank Nagel (southeast corner Sixth and St. Charles streets), in the city of St. Louis, contrary to the ordinances of said city in such case made and provided. And it is further charged that the said John Weitzel on the 15th day of November, 1892, and on divers other days and times prior thereto, did haul and remove garbage and offal from hotels, dwelling houses, boarding houses, restaurants, and tenement houses, in the city of St. Louis, without first having obtained a license from said city therefor; and did haul said garbage and offal, for the purpose of being used as food for animals located within the limits of the city of St. Louis; and did haul said garbage and offal to rendering and converting establishments which are conducted in an offensive manner, injurious to the health of the citizens of St. Louis, and which are under condemnation by the board of health of the city of St. Louis, and which have not complied with all the provisions of the ordinances governing the establishment, erection, and maintenance of rendering factories, contrary to the ordinances of the city of St. Louis in such cases made and provided. And it is further charged the said John Weitzel, on the 15th day of November, 1892, and on divers other days and times prior thereto, did use a cart, wagon, or other vehicle, for the purpose of hauling garbage and offal from hotels, restaurants, boarding houses, and dwelling houses, without having displayed on one side of the said cart, wagon, or other vehicle, a metallic plate, having cast thereon, in raised letters, the words `Licensed to Remove Garbage,' and the figures indicating the number of the plate and the year for which the license is issued, contrary to the ordinance of the city of St. Louis in such cases made and provided. On information of L. Harrigan, chief of police of city of St. Louis." A demurrer to this complaint was filed, and overruled, defendant found guilty; and, on appeal to the court of criminal correction, the demurrer was refiled, and again overruled.

On the trial of the cause on the merits in the court to which it was appealed, objections were taken to the ordinance mentioned being read in evidence. These objections are embraced under 13 general heads, besides a much larger number of subdivided heads, and their diversified ramifications cover nearly 3 printed pages, which will accompany this statement. These objections to the validity of the ordinance being overruled, and the point saved, the ordinance was read in evidence. In general terms, this ordinance requires that garbage and offal shall be removed and hauled through the streets of the city in water-tight carts, wagons, or barrels only, and provision is made to prevent the spilling of the same along the streets, and to render the hauling thereof through the city as inoffensive as possible. Section 5 of the act provides that no person shall haul or remove garbage from hotels, dwelling houses, boarding houses, restaurants, or tenement houses without first obtaining from the city collector a license to do so, and that any person engaged in hauling garbage, either under contract with the city or otherwise, shall pay an annual license of $20 in advance for each cart or wagon; that no license shall be issued by the collector unless the party applying therefor shall first file with the collector a certificate from the board of health or the chief sanitary officer to the effect that said party has filed a statement in compliance with section 6 of the ordinance; that no person having a license shall haul garbage or offal to be fed to animals within the limits of the city; that no license shall be issued to haul garbage to any rendering or converting establishment which shall be conducted in an offensive manner, or which, at the time of making the application for the license, is under condemnation as a nuisance by the board of health, or which shall not have complied with all the provisions of the ordinances governing the establishment, erection, and maintenance of rendering factories. Section 6 of the ordinance provides as follows: "All persons, firms or corporations desiring to have their garbage or offal removed by persons other than the contractor, or any persons, firms or corporations desiring to haul or remove garbage or offal, shall file with the board of health or the chief sanitary officer an application, which application shall state at what point the garbage or offal is located; to what point within or without the limits of the city it is proposed to remove it; the number of carts and wagons proposed to be used; the location where the carts, barrels, wagons or tubs, are kept when not in use; and that said offal and garbage is not to be fed to animals within the limits of the city of St. Louis. On the filing of said application, the chief sanitary officer shall furnish to said parties a certificate to be filed with the collector, the number of which certificate shall correspond with the number on the application." Section 7 requires all wagons so employed to have displayed on one side thereof a metallic plate, having cast thereon in raised letters the words "Licensed to Remove Garbage," and the figures indicating the number of the plate and year for which the license is issued, such plates to be furnished by the city register to the collector.

Cunningham, garbage inspector, testified that on November 15, 1892, he saw the defendant at Nagel's restaurant, southeast...