Jewel Tea Co. v. City of Carthage

• Citation: 165 S.W. 743,257 Mo. 383
• Parties: JEWEL TEA CO. et al. v. CITY OF CARTHAGE et al.
• Decision Date: 02 April 1914
• Court: United States State Supreme Court of Missouri

165 S.W. 743

257 Mo. 383

JEWEL TEA CO. et al. v. CITY OF CARTHAGE et al.

Supreme Court of Missouri.

April 2, 1914.

1. APPEAL AND ERROR (§ 845)—QUESTIONS REVIEWABLE—JUDGMENT ON AGREED STATEMENT OF FACTS.

On appeal from a judgment on an agreed statement of facts, the only question is whether the judgment is the proper legal conclusion.

2. COMMERCE (§ 40)—INTERSTATE COMMERCE —WHAT IS.

Where a sales agent of a foreign corporation located in a sister state took orders in a city for merchandise for future delivery, and then transmitted the orders to the corporation, where each article was separately wrapped and then packed together in a box and shipped to the city, where the agent received the merchandise, and delivered the articles to the persons ordering them, though none of the separately packed articles contained the name of the respective purchaser, the corporation and its agent were engaged in interstate commerce, and an ordinance defining a mercantile agent, and taxing that occupation, and making it a misdemeanor for doing the business without procuring a license, was inoperative.

3. INJUNCTION (§ 85) — RESTRAINING ENFORCEMENT OF INVALID ORDINANCES.

Injunction lies to restrain the enforcement of a municipal ordinance invalid as against a foreign corporation and its sales agent as interfering with interstate commerce, and thereby prevent irreparable damage by a multiplicity of prosecutions of the sales agent.

In Banc. Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by the Jewel Tea Company and another against the City of Carthage and others. From a judgment of dismissal, plaintiffs appeal. Reversed and remanded.

This suit was begun in 1909 to restrain the city of Carthage and its officers and agents from enforcing against the plaintiff and its sales agent the provisions of an ordinance defining a mercantile agent, and taxing that occupation a license fee of $1 per day, or $5 per month, or $20 per year, and making the doing of such business without procuring such license a misdemeanor punishable by a fine of from $1 to $100 for each offense. The sales agent of plaintiff, one Martin, was twice arrested and fined for violating said ordinance. He appealed to the circuit court, and thereupon his employer, the Jewel Tea Company, joined him in bringing this suit to restrain the enforcement of said ordinance, on the ground that it interfered with the interstate commence business which the Jewel Tea Company was conducting from its home office in Chicago with the people in the defendant city. A temporary injunction was issued, defendant answered, admitting the ordinance and its enforcement, denied that plaintiff Jewel Tea Company was protected by the commerce clause of the federal Constitution as to its business in this state. After the joinder of issue the case was submitted to the judge of the circuit on the following agreed statement of facts:

"Agreed Statement of Facts.

"It is hereby stipulated and agreed by and between the parties to the above-entitled cause, by their respective attorneys, that said cause be tried upon the admissions in the pleadings and the following facts: That on August 2, 3, and 4, 1909, M. Martin, as agent of the Jewel Tea Company, an Illinois corporation located at Chicago, Ill., went about from place to place within the city of Carthage, Mo., and took orders for delivery two weeks thereafter for teas, coffees, extracts, spices, and other merchandise. That said Martin mailed said orders to said company at Chicago, where each item was separately wrapped and packed together with the other items in a large wooden shipping box, which was nailed up, addressed, and shipped to the `Jewel Tea Company, Carthage, Missouri.' Two weeks after said orders were taken in Carthage, said Martin, who lives in the state of Kansas, and is a resident of said state, returned to Carthage, received the box as agent of said Jewel Tea Company, opened the same, took therefrom the numerous small packages, made up each order therefrom, without opening or breaking said small packages, and delivered said orders to the customers having previously ordered same, and received the money therefor. None of the items packed inside the shipping box bore the name of any customer or any mark, number, or other designation as to what customer should receive it. Where, for instance, Mrs. `A.' and Mrs. `B.,' different customers, had each ordered one pound of a certain kind of coffee, or two bottles of a certain size filled with a vanilla extract of a certain brand, there were two one-pound packages of that coffee, either of which said Martin would use, without breaking, to fill either order, or there would be two bottles of vanilla of the same kind, either of which bottles might go to fill the order of Mrs. `A.' or of Mrs. `B.' That on the 16th, 17th, and 18th of each month said Martin, while delivering said merchandise at said city of Carthage, and within the corporate limits thereof, would and did take orders for other goods, wares, and merchandise, to be delivered in the same way two weeks later, which illustrates the method employed. That neither the Jewel Tea Company nor said Martin nor any other agent of said company had or has taken out a license under the ordinance set forth in plaintiff's petition. That the Jewel Tea Company, plaintiff herein, maintains branch offices and retail stores in other towns in Missouri, but none in said city of Carthage. That said company ships no goods to Carthage from Missouri points to fill said orders. It is understood that defendants deny that plaintiffs were engaged in interstate commerce, or that they are in any wise protected by the Interstate Commerce Act [Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154)]. That, save for the restraining order issued herein, said defendants would have made other arrests of said Martin and others doing business in the same manner for said tea company. That such arrests would have been made every time orders were taken in the manner hereinabove set forth."

Upon a consideration of the foregoing facts the trial court dissolved the temporary injunction, and dismissed the petition, from which judgment plaintiff appealed.

J. D. Harris, of Carthage, for appellants....