Mike Berniger Moving Co. v. O'Brien

• Decision Date: 04 April 1922
• Docket Number: 17833
• Citation: 240 S.W. 481
• Parties: MIKE BERNIGER MOVING CO. v. O'BRIEN, Chief of Police
• Court: Missouri Court of Appeals

240 S.W. 481

MIKE BERNIGER MOVING CO. v. O'BRIEN, Chief of Police

No. 17833

Court of Appeals of Missouri, St. Louis

April 4, 1922

Error to St. Louis Circuit Court; Benjamin J. Klene, Judge. Suit by the Mike Berniger Moving Company against Martin O'Brien Chief of Police of the City of St. Louis. Judgment for defendant, and plaintiff appeals. Transferred from Supreme Court, 234 S.W. 807.

Judgment affirmed.

Louis Mayer and Marvin E. Boisseau, both of St. Louis, for appellant.

Henry S. Caulfield, City Counselor, of St. Louis (Spencer &amp Donnell, of St. Louis, of counsel), for respondent.

ALLEN P. J. BECKER and DAUES, JJ., concur.

OPINION

ALLEN, P. J.

This suit in equity was instituted in the circuit court of the city of St. Louis "against William Young, then Chief of Police of said city. Thereafter plaintiff filed an amended petition against the present defendant Martin O'Brien, as successor of said Young.

The petition alleges that plaintiff is a corporation engaged in the business of moving household goods for hire, and that the suit is brought by plaintiff on its own behalf, and also on behalf of numerous other corporations, and individuals of said city having with plaintiff a common grievance against said defendant, and who are invited to join in the suit under the rules and practice of the court in such cases made and provided. It is then alleged that on or about January 5, 1918, the city of St. Louis purported to enact an ordinance designated as "Ordinance No. 29906," purporting to regulate the business of moving household goods and furniture, office furniture and fixtures, store furniture, fixtures, and stock, for hire, in said city, defining public movers, providing for a license and bond for public movers, and providing penalties for the violation thereof; said ordinance being as follows:

"Section 1. Public Mover Defined. - Any person, firm or corporation, who shall move, household goods and furniture, office furniture and fixtures, or store furniture, fixtures or stock, from one place to another place in the city of St. Louis or to or from any place within the city of St. Louis, excepting interstate shipments of the same, and excepting such persons, firms and corporations, as shall be engaged in moving solely for one person, firm or corporation, and such' as: shall be under contract for a period of thirty days or more for the hauling of merchandise for any mercantile or manufacturing establishments located in the city of St. Louis and shall be continuously and exclusively engaged in the hauling thereof for such period under such contract, is hereby declared to be a public mover.

"Section 2. Public Mover to Licensed. -No person, firm or corporation shall carry on the business of public mover unless such person, firm or corporation be licensed so to do in accordance with the provisions of this ordinance.

"Section 3. Application for License--Requisites. -Any person, firm, or corporation desiring to secure a license as a public mover shall make application for such license to the license collector. Such application shall set forth the name of the applicant, and, if an individual, his place of residence, and, if a firm, the names and places of residence of all its members, and, if a corporation, the names and places of residence of its officers; and such application shall also state the place or places of business of such applicant.

"Section 4. License Fee-Term. -There shall be levied and collected on each van or other conveyance used by a public mover, an annual license fee of five dollars. Said license fee shall be due and payable on January 1, 1918, and on January 1st of each year thereafter.

"Section 5. Before the license provided for in the foregoing section shall be issued, such applicant shall execute and file a bond to the city of St. Louis in the sum of "$ 2,000 for the use and benefit of the city of St. Louis and such person or persons, for whom the applicant shall do moving, conditioned for the faithful performance of his, its or their duties as public mover and for the performance of all duties required by law relating to the safe and prompt delivery to the proper person or persons of all household goods and furniture, office furniture, and fixtures, store furniture, fixtures and stock, intrusted to the mover for moving and as security for the payment to the proper person or persons of all damages to real or personal property caused by such mover and for which it shall by law be responsible.

"Section 6. License and License Plate. -Upon the compliance with the foregoing provisions, the license collector shall issue to the applicant a numbered license and, license plate for each van or conveyance.

"Section 7. Each van or other conveyance used by a public mover in carrying on his business shall have posted conspicuously 'upon both sides, in letters not less than five inches in height, the name and address of the public mover and the words 'Public Mover' so that it may be visible at all times. The license plate, shall be attached to the right side near the front of said van or conveyance. Said license plate shall be of metal at least six inches wide and not less than ten inches in length, on which there shall be the distinctive number assigned to the van or vehicle set forth in numerals four inches long, each stroke of which shall be at least three-eighths of an inch in width.

"Section 8. License Not Assignable or Transferable. -No license issued in accordance here-with shall be assignable or transferable.

"Section 9. General Penalty. -Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $ 25 nor more than $ 100 for each offense."

The petition avers that the ordinance seeks to create an artificial class of persons under the designation of public movers, and is in no way related to the public health, morals, safety, or welfare of the people inhabiting said city; that it seeks to impose a license tax upon a business or avocation not specially named as taxable in the charter of said city, contrary to the statutes made and provided; that it unlawfully seeks to exact a bond from citizens and residents of the city; and that it seeks to impose restrictions upon private rights which are not necessary to the general welfare of all, and seeks to place the business of the moving of goods on the basis of a monopoly And it is averred that the ordinance, is not a valid exercise of the public power of said city; that said city exceeded its powers in attempting to enact the same; and that the ordinance is ultra vires, invalid, and void.

The petition further alleges that defendant, chief of police, claiming authority under said ordinance, has directed and commanded the police of said city, who have repeatedly arrested plaintiff's agents and others in like circumstances; that such arrests grievously interfere with plaintiff and others in like circumstances in the prosecution of their lawful calling, and that a continuance thereof will inflict irreparable injury on them and will render it impossible for them to fulfill contracts for the prompt removal and delivery of goods; and that the police of said city, acting under and by virtue of the commands, of defendant, have threatened to arrest plaintiff's agents as often as its moving vans and wagons shall appear on the streets of said city. And it is averred that plaintiff and those similarly situated have no adequate remedy at law, and that the damages which plaintiff will sustain, on account of the threatened action of defendant, if taken, will be irreparable.

The petition further avers that plaintiff's rights in the premises to pursue its lawful avocation, being that of a public mover of household goods, etc., without hindrance on the part of said city,...