City of Washington v. Reed et al.

• Decision Date: 03 April 1934
• Docket Number: No. 22067.,22067.
• Citation: 70 S.W.2d 121
• Parties: CITY OF WASHINGTON, APPELLANT, v. EARL B. REED, JOHN C. RIDLEY, RESPONDENTS.
• Court: Missouri Court of Appeals

70 S.W.2d 121

CITY OF WASHINGTON, APPELLANT, v. EARL B. REED, JOHN C. RIDLEY, RESPONDENTS.

No. 22067.

St. Louis Court of Appeals. Missouri.

Opinion filed April 3, 1934.

Appeal from Circuit Court of Franklin County. — Hon. R. A: Breuer, Judge.

AFFIRMED.

Herbert A. Krog for appellant.

That the court erred in giving the defendants' instruction No. 1 in the nature of a demurrer to the plaintiff's evidence in chief. An ordinance will not be declared unreasonable if it is within the express power of the municipal authorities which ordain it. Dillon on Mun. Corp. (4 Ed.), 405; In re Kansas City, 252 S.W. 404, l.c. page 410, 298 Mo. 569; 28 Cyc., pp. 369-370; City of St. Louis v. U.R.R. Co., 174 S.W. 78, 263 Mo. 387, pp. 13-15. Such express power to impose the license tax in issue was given the City of Washington, a city of third class, under the laws of the State of Missouri, as provided by Section 6840, Revised Statutes of Missouri, 1929, and as reenacted in the Laws of 1931, page 277. The City of St. Louis v. Weber, 44 Mo. 547, l.c. pages 550 and 551; St. Louis Transfer Co. v. Clifford, 128 S.W. 755, 228 Mo. 194. An ordinance which is within the statutory power of a council to pass will be presumed reasonable and valid until the presumption is overcome by evidence clearly showing the contrary ... Hislop v. City of Joplin, 157 S.W. 625, 250 Mo. 588; Bellerive Investment Co. v. Kansas City (Mo.), 13 S.W. (2d), l.c. page 639; Stack v. General Banking Co., 223 S.W. 89, 283 Mo. 396.

Boyle & Priest, George T. Priest, Robert E. Moloney, Jesse H. Schaper and Randolph H. Schaper for respondents.

Lynn H. Latta of counsel.

Ordinances unreasonable on their face may be so declared by the courts. The ordinance in question is unreasonable on its face, because the fee charged is so excessive as to prohibit a legitimate trade or business. Bellerive Investment Co. v. Kansas City, 13 S.W. (2d) 628, l.c. 639; Ex Parte Davison, 13 S.W. (2d) 40; City v. Block, 139 Mo. App., l.c. 391; Baker v. Hasler, 218 Mo. App., l.c. 7; St. Louis v. St. Louis Theatre Co., 202 Mo., l.c. 699.

HOSTETTER, P.J.

This action was begun in the police court of the City of Washington in Franklin County, Missouri, on June 11, 1930. The complaint filed in the police court by the city attorney charged the defendants with violating an ordinance by selling goods, wares and merchandise by going about from place to place in the city without first obtaining a peddler's license as provided by ordinance.

Washington is a city of the third class and has the statutory authority and power to levy and collect a license tax and regulate divers and sundry businesses and persons engaged in divers and sundry businesses, among others "peddlers." [Section 6840, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., Vol. 8, p. 5639).]

The proceedings in the police court resulted in a fine against both defendants and they appealed to the circuit court where the cause was heard anew on August 21, 1931, resulting in a discharge of both defendants on the ground that the ordinance under which defendants were being prosecuted was unreasonable as a matter of law and from this decision the city has brought the case to this court by appeal for review.

The facts are as follows: The defendants were engaged in selling a certain electric appliance known as Air-Way Cleaners, called by some of the witnesses "sweepers." They conducted their business in an automobile in which they would go from place to place in the city of Washington, exhibit their appliance to the housewife and make a demonstration of it, and several sales were shown in the testimony. The appliance sold for $79 if paid in installments or $71 if paid in cash. When sales were made they delivered the article at once out of their stock carried in the automobile.

The ordinance of the city provided for a license tax of $4 per day on peddlers. A peddler was defined, under the ordinance offered in evidence, as follows:

"Peddler. — A peddler is any person who shall deal in the selling of patents, patent rights or other medicines, lightning rods, goods, wares or merchandise, except pianos, organs, sewing machines, books, charts, maps and stationery, agricultural and horticultural products, including milk, butter, eggs and cheese, by going about from place to place to sell the same."

Most of the businesses on which license taxes were imposed as disclosed by the ordinance read in evidence, were treated on a per annum basis, instead of a per diem basis.

Subsequent to the alleged violation of the ordinance the defendants took out a license for $10 whereby they were permitted to sell for a year electric light fixtures as supply merchants, which would have permitted them to sell the same appliances which they had been arrested for selling as peddlers.

As to most of the more than 100 businesses and persons engaged therein, subject to the license tax imposed by the city, the amount fixed by the ordinance ranged from $5 to $25 per annum.

A dry goods merchant was charged $10 per annum; a druggist $25 per annum; a bank $75 per annum; ice cream manufacturer $20 per annum; hotel keeper $20 per annum; loan agent $10 per annum; newspaper office $10 per annum; corn cob pipe manufacturer $30 per annum; sewing machine agent or dealer $10 per annum; restaurant keeper $10 per annum; shooting gallery $10 per annum; traveling and auction store $50 per annum; undertaker $20 per annum; carnival and street fairs $15 per day; grocer $10 per annum; feather renovator $5 per annum; gents furnishing merchant $10 per annum; hardware and stove merchant $10 per annum; harness and saddlery merchant $10 per annum; a hawker, which is one form of a peddler, $4 per days; boot and shoe merchant $15 per annum; a soft drink stand or saloon $75 per annum; second hand merchant $20 per annum; shoe cobbler $5 per annum; skating rink $4 per month; tinner $10 per annum; carriage or cab driver $5 per annum; lunch counter $5 per annum; insurance company $5 per annum; handle manufacturer $5 per annum; auctioneer $5 per annum; bakery $15 per annum; and barber $10 per annum. Prior to June 27, 1920, the date of the enactment of the amended ordinance under which the defendants were prosecuted, the license tax on peddlers was only $2 per day.

The sole question determinative of this case is whether or not that portion of the ordinance fixing the license tax on peddlers at $4 per day is valid. The learned counsel for appellant insists that it is a valid ordinance, and frankly bases his argument on the proposition that the peddler comes in direct competition with the home merchants, who bear the brunt of local taxes, and that it would not be fair to permit the transient dealer who peddles his wares from place to place without having established himself in the city as a permanent business man to thus "compete with the local merchant without paying for the privilege."

He also admits that calculating the rate fixed on peddlers ($4 per day) for an appreciable length of time, as for 313 working days, it would be out of line with other rates imposed by the city, but he avers that the peddler is usually a transient.

On the contrary, the counsel for respondents assert that the ordinance in question is void because the excessive rate prescribed on peddlers' license makes it prohibitory.

While it is true that the occupation of peddler is usually regarded as a lowly occupation, but it cannot be seriously contended that...