City of West Plains v. Noland

• Decision Date: 07 December 1937
• Docket Number: No. 5830.,5830.
• Parties: CITY OF WEST PLAINS v. NOLAND.
• Court: Missouri Court of Appeals

112 S.W.2d 79

CITY OF WEST PLAINS v. NOLAND.

No. 5830.

Springfield Court of Appeals. Missouri.

December 7, 1937.

Rehearing Denied January 5, 1938.

Appeal from Circuit Court, Howell County; Will H. D. Green, Judge.

"Not to be published in State Reports."

Dean Noland was convicted for violation of an ordinance of the City of West Plains and he appeals.

Reversed and defendant ordered discharged.

Frank A. Lowry, of Cape Girardeau, for appellant.

Homer Rinehart, of West Plains, for respondent.

ALLEN, Presiding Judge.

Appellant, defendant in this case, was prosecuted for violation of an ordinance of the city of West Plains. Complaint was filed by the city attorney, alleging that the defendant violated section 2 of Ordinance 753, of the city of West Plains, passed and approved on the 19th day of August, 1935; by operating a delivery truck upon the streets of the city of West Plains, for the purpose of making delivery of goods, wares, and merchandise, without having paid a city license, as provided by the ordinance above mentioned.

Defendant filed a motion to quash the information which was overruled. The trial was before a jury. The jury found defendant guilty as charged in the complaint and assessed his punishment at a fine of $25. Defendant filed a motion for new trial and motion in arrest of judgment, which were overruled and from which defendant has appealed.

The evidence was that the defendant was employed by the Moon Distributing Company a corporation, having a place of business at Cape Girardeau, Mo., and one at Little Rock, Ark. Defendant's employer, the Moon Distributing Company, was engaged in the liquor business. Defendant was a salesman for this company and West Plains was in his territory. Defendant traveled by truck, taking orders at West Plains and other towns for liquor, which he would fill by delivering the following week, from his truck to the merchants who had placed their orders the week previously.

The evidence showed that defendant got to West Plains approximately once a week for the purpose of taking orders and delivering liquor. The deliveries, according to the evidence, were merchandise, the orders for which had been taken the previous week.

It was admitted that the defendant had not paid the license tax specified in the ordinance. This ordinance is as follows:

"Ordinance Number 753. An Ordinance levying a license tax against Delivery Trucks used and operated upon the public Streets, avenues or alleys of the City of West Plains, Missouri, for the purpose and in the business of making deliveries of their personal property, goods, wares or merchandise, which have been sold, or which are to be sold, or consigned for sale to any person, firm or corporation in the City of West Plains, Missouri, and providing for the punishment for the violation thereof.

"Be it ordained by the city council of the city of West Plains, Missouri, as follows:

"Section 1. There is hereby levied upon each delivery truck used and operated by any person, firm or corporation upon the streets, avenues, or alleys of the City of West Plains, Missouri, for the purpose and in the business of making deliveries of their personal property, goods, wares or merchandise of any kind or description, which have been sold, or which are to be sold or consigned for sale to any person, firm or corporation in the City of West Plains, Missouri, a license tax in the sum of ten dollars per annum or six dollars for a period of six months.

"Section 2. It shall be unlawful for any person, firm or corporation to operate upon the streets, avenues or alleys of the City of West Plains, Missouri, any delivery truck upon which there is by the terms of this Ordinance a license tax levied and fixed without paying the license tax required by this ordinance. Any person, firm or corporation so doing or assisting in doing directly or indirectly in any manner either as an owner or proprietor, or as an officer, manager, superintendent, agent, servant or employee shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one dollar nor more than one hundred dollars.

"Section 3. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed.

"Passed and approved this 19th day of August, 1935."

Defendant attempted to show that the ordinance was not enforced as to residents of the city of West Plains. There was also evidence to the effect that part of the order delivered on the date of defendant's arrest was liquor from the Hiram Walker Distillery Company at Peoria, Ill., which had been ordered by a drug merchant at West Plains, and shipped through the Moon Distributing Company.

The evidence further disclosed that all of the necessary license taxes had been paid on the truck in question and that the truck was owned in and operated from Cape Girardeau, Mo.

Defendant demurred to the evidence at the close of the trial, which demurrer was by the court overruled and objections and exceptions were duly taken.

The sole question involved in this case is whether or not the city of West Plains had a right to levy a license tax on the truck operated by the defendant, for the purpose of delivering merchandise into the city of West Plains.

Under section 6840, R.S.Mo.1929, Laws 1931, p. 277, Mo.St.Ann. § 6840, p. 5639, cities of the third class may license delivery trucks, ice trucks, transfer trucks, and other trucks. This case does not involve an ordinance under the police...