City of St. Louis v. Stubley

• Decision Date: 07 October 1941
• Docket Number: No. 25629.,25629.
• Citation: 154 S.W.2d 407
• Court: Missouri Court of Appeals
• Parties: CITY OF ST. LOUIS v. STUBLEY.

154 S.W.2d 407

CITY OF ST. LOUIS v.STUBLEY.

No. 25629.

St. Louis Court of Appeals. Missouri.

October 7, 1941.

Error to St. Louis Court of Criminal Correction; Joseph L. Simpson, Judge.

"Not to be reported in State Reports."

Proceeding by the City of St. Louis against Lieutenant Major Ernest G. Stubley, d/b/a Volunteers of America, to recover penalty for violation of city ordinance regulating solicitations for charitable, patriotic, religious, or philanthropic purposes. To review a judgment finding defendant not guilty of violating the city ordinance and discharging the defendant, the city brings error.

Affirmed.

Joseph F. Holland, Oliver Senti, Albert Miller, E. H. Wayman, and George D. Chopin, all of St. Louis, for plaintiff in error.

Marvin Q. Silver, M. Hartmann, Michael J. Ebeling, and Robert R. Schaefer, all of St. Louis, for defendant in error.

HUGHES, Presiding Judge.

This proceeding was commenced by plaintiff City, through its proper officers, filing an information in City Court One of the City of St. Louis.The case reached the St. Louis Court of Criminal Correction by appeal, and was there tried before the court, a jury being waived, and the defendant was found not guilty and discharged.The case comes to this Court by writ of error.

The information was in the form of an account entitled "Lieut.-Major Ernest G. Stubley, d/b as Volunteers of America, St. Louis, To the City of St. Louis, Dr." The substance of the information was that the plaintiff City sought to recover the penalty for the violation of Ordinance 41386, regulating solicitations for charitable, patriotic, religious or philanthropic purposes in that the said Lieut.-Major Ernest G. Stubley solicited money on the plea and the representation that the solicitation and proceeds were for a charitable, religious, patriotic and philanthropic purpose, without first having obtained a permit so to do from the Charity Solicitations Commission.

The information continues, without any connecting link whatever, to allege, the Volunteers of America not being an established society, association, or corporation organized and operated exclusively for religious, philanthropic, benevolent, fraternal, charitable or reformatory purposes, and not operated for pecuniary profit, and no part of net earnings of which inures to the benefit of any person, private shareholder or individual, and where the solicitation of such organization shall be conducted among the members thereof or by other members or officers thereof, voluntarily and without remuneration for such solicitations, or where such solicitation may be in the form of collections or contributions at the regular exercises or services of any church, religious society, lodge, benevolent order or fraternity, or similar organizations, or of any branch thereof.

OrdinanceNo. 41386 provides that it shall be unlawful for any person, organization, society, association or corporation, or for any agent, member, or representative thereof, to solicit money on the plea or the representation that the proceeds thereof is for a charitable, religious, patriotic or philanthropic purpose, by mail or in any other way, unless such person, organization, society, association or corporation shall have first obtained a permit therefor.Then follows a proviso: "Provided, however, that the provisions of this section shall not apply to any established society, association or corporation that is organized and operated exclusively for religious, philanthropic, benevolent, fraternal, charitable or reformatory purposes, not operated for pecuniary profit, where no part of the net earnings of which inures to the benefit of any person, private shareholder or individual, and where the solicitation of such organization shall be conducted among the members thereof by other members or officers thereof, voluntarily and without remuneration for such solicitations, or where such solicitation may be in the form of collections or contributions at the regular exercises or services of any church, religious society, lodge, benevolent order or fraternity or similar organizations, or of any branch thereof."

The evidence at the trial of the cause was as follows:

Herman Paule, testified that his business address in December 1938 was at 5122 Virginia Avenue; sometime around Christmas, 1938he received plaintiff's exhibit 1 at his place of business; that he is not acquainted with Mr. Stubley nor with any of the other gentlemen from the Volunteers of America mentioned in the letter; that he does not know whether the signature on the letter is Mr. Stubley's signature, and does not know whether Mr. Stubley is authorized to send out the letters.

Plaintiff's exhibit No. 1 is as follows:

   "NEwstead 2922 * CEntral 6856 *
                            CAbany 4033
                 "General and Mrs. Ballington Booth
                        "Founders and Leaders
                "The Volunteers      Local Advisory
                of America * St.        Board
                Louis                Judge M. Hartmann
                 2917 Olive Street.  Senator M. Kinney
                                     Att. Jos. Goodman
                "Lt. Major Ernest G. Stubley
                     "Executive
                         "Christmas Greetings
                "Mr. Herman Paule
                  "5122 Virginia Ave.
                  "St. Louis, Mo.
                "Dear Mr. Paule:
                

"Christmas greetings mean nothing to a family that is without food.

"The Volunteers of America propose to bring christmas cheer into the homes of destitute families in a practical way — by furnishing substantial basket dinners.You have always helped us in this most worthy work — may we expect a contribution from you again this year.

"Please make your check in proportion as you would that some one would give to you — if you were in need.

     "Very sincerely yours,
                               "The Volunteers of America
                                  "By Ernest G. Stubley
                                      "Lt. Major."
                

Mary L. Lubbe testified that she is the secretary to the Director of Public Welfare of the City of St. Louis, and was so employed in December, 1938; that it is among her duties to keep a record of all people in the City of St. Louis who have taken out charitable solicitation permits; that no permit for charitable solicitations by either the Volunteers of America or Lieut.-Major Stubley has ever been issued.

Ernest G. Stubley testified that he is employed in social work with the Volunteers of America, and has been so employed for 35 years; the Volunteers of America do missionary work and very extensive prison relief work and extensive work among the parolees from various penal institutions; the Volunteers of America have been in operation 46 years, and have never made an application and have never been denied a permit to solicit funds; that they have refused to recognize the...