City of Troy v. Harris

• Decision Date: 06 October 1903
• Citation: 76 S.W. 662,102 Mo. App. 51
• Parties: CITY OF TROY v. HARRIS.
• Court: Missouri Court of Appeals

76 S.W. 662

102 Mo. App. 51

CITY OF TROY v. HARRIS.

Court of Appeals at St. Louis, Missouri.

October 6, 1903.

MUNICIPAL CORPORATION—LICENSES—TAXES —MERCHANTS—DEFINITION—MERCHANTS' AGENT—LIABILITY.

1. A corporation selling oil drawn from stationary tanks owned by it and from a wagon tank driven about town is a "merchant," within an ordinance defining a merchant to be a person dealing in the selling of goods, wares,

and merchandise at any store, stand, or place occupied for that purpose.

2. A city ordinance providing that all merchants shall pay an ad valorem tax on the highest amount of merchandise carried between certain dates, and on payment of which they may receive a license which they are required to have in order to lawfully carry on their business, in effect imposes an ad valorem property tax.

3. A license either for regulation or for revenue may be exacted by municipalities as a prerequisite to the pursuit of a business in its borders, when the statutes so prescribe.

4. A city may collect from merchants, under appropriate statutory authority, both a license charge and ad valorem tax on their stocks within the taxing limits fixed by the Constitution.

5. A city ordinance provided that all merchants should pay an ad valorem tax on the highest amount of merchandise carried between certain dates, on payment of which they might receive a license, which they were required to have in order to lawfully carry on their business. Held, that one conducting the business of a merchant as agent for another was not liable to a prosecution for carrying on the business of a merchant without a license.

Appeal from Circuit Court, Lincoln County; Elliot M. Hughes, Judge.

Charles Harris was convicted of selling goods, etc., in violation of an ordinance requiring a license to be obtained by merchants, and he appeals. Reversed.

Ball & Sparrow and Martin & Woolfolk, for appellant. S. L. Penn, for respondent.

GOODE, J.

Defendant was prosecuted before the mayor of the city of Troy for unlawfully dealing in and selling goods, wares, and merchandise within the corporate limits of said city, in violation of an ordinance requiring a license to be first obtained by merchants. Having been convicted in the mayor's court, he appealed to the circuit court, where he was again convicted, and then appealed from that judgment to this court.

The ordinance he was charged with violating is as follows:

"Ordinance No. 10.

"An Ordinance Licensing Merchants and Grocers.

"Be it ordained by the board of aldermen of the city of Troy as follows:

"Section 1. Every person or co-partnership of persons who shall deal in the selling of goods, wares and merchandise at any store, stand or place occupied for that purpose shall be considered a merchant and take out license therefor.

"Sec. 2. Any person or co-partnership of persons who shall sell or offer for sale in any house, cellar, shed, booth or at any stand, any raw fish, fresh fish, salt meat, fowls, eggs, butter, lard, honey, meal, fruit, melons, vegetables and the articles usually kept for sale by grocers under the state law shall be considered a grocer and take out license.

"Sec. 3. Merchants and grocers shall pay an ad valorem tax equal to that which is levied upon real estate on the highest amount of all goods, wares and merchandise which they may have in their possession, or under their control, whether owned by them, or consigned to them for sale, at any time between the first Monday of March and the first Monday in September in each year: provided, that no commission merchant shall be required to pay any tax on any unmanufactured article, the growth or produce of this or any other state, which may have been consigned for sale and in which he has no ownership or interest other than his commission.

"Sec. 4. On the first Monday in September in each year it shall be the duty of every person or co-partnership of persons as provided by this ordinance to file with the city clerk a statement of the greatest amount of goods, wares or merchandise which he or they may have on hands at any time between the first Monday in March and the first Monday in September next preceding. Said statement shall include goods, wares and merchandise owned by such merchants and consigned to him or them for sale by other parties; which said statement shall be verified by affidavit.

"Sec. 5. Upon filing the statement verified by an affidavit, the city clerk shall enter an abstract of such statement in a book to be provided for that purpose to be known as `The Merchants' Tax Book,' which shall contain the names of the merchants, the amount of each statement and the amount of the tax levied thereon, which shall be the same rate as taxes assessed for the time on real estate, and shall thereupon deliver to the marshal a license therefor under his hand and the seal of the city with the amount of the license tax due the city stated therein; and upon the payment of the amount specified in the license to the marshal he shall countersign the same and deliver it to the person or persons applying for the same.

"Sec. 6. The clerk shall deliver to the marshal all licenses so issued and charge him therewith in a book to be kept for that purpose.

"Sec. 7. A license under the provisions of this ordinance shall not be transferable or assignable and shall not authorize any person to do business under it except the person to whom it was granted; neither shall any license authorize the person licensed to carry on business by himself or agent at more than one place at the same time.

"Sec. 8. Any person or co-partnership of persons exercising or attempting to exercise the avocation or business in this ordinance mentioned without first taking out a license therefor shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than ten nor more than fifty dollars.

"Sec. 9. The clerk and marshal shall each receive from the person to whom a license is granted the sum of fifty cents, to be paid by the person applying therefor."

The evidence of various persons tended to prove that the Standard Oil Company, a corporation of the state of Indiana, but authorized to do business in this state, owned tanks of oil near a railroad station in the limits of the city of Troy, of which oil the defendant, Harris, was in charge. He had the keys to the premises, and opened and locked the gate. As the agent of the Standard Oil Company, he sold oil to different persons within the time charged in the complaint, both from stationary tanks and from a wagon tank which he drove about town. When Harris was paid he gave a receipt for the money in the name of the Standard Oil Company. There was no proof as to the scope of his agency, the extent of his authority, or whether he worked for a salary or for a commission. The evidence shows that Harris did not own the oil, and never assumed to sell it as his own property, or to do business in his own name, but always as agent of the oil company. Said company had taken out no license in the city of Troy permitting it to sell oil, nor paid a city tax, but it had paid a state and county tax. The circuit court gave declarations of law to the effect that, if the defendant sold the oil from a place, plant, or store, the same having been put in his control for sale, he was a merchant, whether he owned the property or not.

The following declarations, given at the instance of the plaintiff, were excepted to by the defendant:

"No. 1. The court declares the law to be that a merchant is one who deals in the selling of goods, wares, and merchandise at any place, stand, or store, and, even though he may not be the owner of the goods sold, yet if such goods are consigned to him, or placed under his control, for sale and to sell the same, he is, under the law, a merchant, and the fact that the goods are stored at a store, stand, or place, and the sales thereof are made on orders, or from wagons here and there, where a customer may be had, yet the person so dealing, trafficking, or selling is in law a merchant.

"No. 2. The court declares the law to be that if the defendant, Charles Harris, sold goods, wares, and merchandise kept for sale under his sole control in the city of Troy, whether said goods were owned by him, consigned to him for sale, or placed in his possession or under his control for sale, the court will find him guilty, and assess his punishment at a fine of not less than ten dollars nor more than fifty dollars, provided neither defendant, nor any person for whom he acted as agent, clerk, or driver, had a license from said city of Troy to so sell then continuing in force.

"No. 3. The court declares the law to be that it is the duty of defendant to show his license, or the license of his employer, if acting under one, if he has such license, and if he does not show such license the law presumes that he has none, and any sale of the goods, wares, or merchandise made by him is illegal."

These requested by the defendant and refused will serve to illustrate his theory of the case:

"No. 1. The court declares that, under the law and the evidence, defendant is not guilty.

"No. 2. The court declares the law to be that even though defendant, Charles Harris, did on or about the 16th day of October, 1901, deal in the selling of coal oil and gasoline, or either, in the city of Troy, Missouri, yet if in the dealing of same defendant acted as the agent of the Standard Oil Company, he is not guilty.

"No. 3. The court declares the law to be that even though the defendant, Charles Harris, did on or about the 18th day of October, 1901, deal in the selling of coal oil or gasoline, or either, in the city of Troy, Missouri, yet if in the selling of same defendant acted as the agent of the Standard Oil Company, and said coal oil or gasoline, or either, so sold by defendant, was, at the time of such sale, the property of said Standard Oil Company, then the defendant is not guilty."

The trial court sen...