Stegmann v. Weeke
| Citation | 214 S.W. 134,279 Mo. 131 |
| Decision Date | 05 July 1919 |
| Docket Number | 21,151 |
| Parties | FRED STEGMANN et. al., Appellants, v. HENRY L. WEEKE, Commissioner of Weights and Measures of City of St. Louis |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.
Reversed and remanded.
Edward W. Foristel, Taylor R. Young and T. T. Hinde, for appellants.
(1) The first cause was not heard on its merits at a final hearing hence, since the petition states a cause of action, the court should not have dismissed the suit at the preliminary hearing on the order to show cause why a temporary injunction should not issue. And even if the petition did not state a good cause of action, appellants had a right to amend. Harrison v. Rush, 15 Mo. 175; State ex rel. v Smith, 188 Mo. 179; (2) Sections 22 and 23, both original and amended, of the ordinance are unconstitutional, both under the Federal and State Constitutions, in that they impair appellants' right to contract and deprive them of their property without due process of law. Article 5 of Amendments to U. S. Constitution; Art. 2, sec. 10, U. S. Constitution; Art. 2, sec. 15, Missouri Constitution; Art. 2, sec. 30, Missouri Constitution; St. Louis v. Dreisoerner, 243 Mo. 224. (3) Original Section 23 of the ordinance is illegal under our statute providing that no city shall have the power to levy or collect a license or fee from any farmer or producer for the sale of produce raised by him, when sold from his wagon in a city. The annual inspection fee of ten cents per box is nothing more nor less than a tax, license or fee. Sec. 9516, R. S. 1909; St. Louis v. Meyer, 185 Mo. 583. (4) Original Section 22 of the ordinance violates our statute pertaining to weights and measures in at least two particulars: (a) It attempts to establish a standard bushel box with a capacity of 343.16 cubic inches in excess of the statutory standard; (b) it fixes absolute and arbitrary dimensions, thus limiting the shape, as well as the capacity, of the container. Sec. 11961, R. S. 1909; Sec. 11963, R. S. 1909.
Charles H. Daues and H. A. Hamilton for respondent.
(1) If an event occurs pending an appeal which renders a decision unnecessary, the appeal will be dismissed. Such condition may arise by the act of the appellee in relinquishing the right to do some act in respect to which the appeal was taken. That part of Ordinance No. 29795 against which complaint is made having been repealed, the matter presented in said cause is a moot question. (2) All substantial interest in the controversy having been extinguished, this court will not hear the appeal merely to determine the right to costs. Hicks v. St. Louis, 234 Mo. 647; Union El. L. & P. Co. v. St. Louis, 253 Mo. 592; Howe v. Doyle, 187 Mich. 655; Russell v. Campbell, 112 N.C. 404; Mabry v. Kettering, 91 Ark. 81; Pinkerton v. Randolph, 200 Mass. 24; Moore v. Cooper Monument Co., 81 S.E. 170; Anderson v. Cloud County, 90 Kan. 15; Wingert v. First National Bank, 223 U.S. 670, 672; Lisman v. Knickerbocker Trust Co., 211 F. 413.
WHITE, C. Railey, C., not sitting; Mozley, C., concurs.
The plaintiffs are truck gardeners and farmers, and officers of a voluntary unincorporated association which consists of twenty-five hundred members. The defendant is Commissioner of Weights and Measures of the City of St. Louis. The plaintiffs filed their amended petition in the circuit court of St. Louis on April 24, 1918, in which they set out a certain ordinance of the City of St. Louis, No. 29795, enacted on the ninth day of August, 1917, which was alleged to be in violation of the State and Federal Constitutions and unreasonable and oppressive. Under this ordinance the defendant in his official capacity had destroyed, and threatened to continue destroying, certain boxes used by the plaintiffs and other members of the association. The petition asked for a temporary restraining order and, upon a final hearing, a permanent injunction to prevent said acts on the part of the defendant.
On the filing of said petition the court issued an order directing the defendant to show cause on a certain day why a temporary restraining order should not be issued. The defendant thereupon, on the day mentioned, filed his return to the order, in which he set out certain sections of the ordinance referred to, prescribing the dimensions of boxes which might be used in the marketing of produce, and alleged that the plaintiffs in marketing their produce used boxes of other and different dimensions, contrary to the ordinance, and for that reason he had seized a number of such boxes.
After hearing the evidence upon the petition and return, the court, instead of merely passing upon the matter of issuing a restraining order, dismissed the bill at plaintiffs' costs.
I. Appellants here complain that the court had no right in this mere preliminary hearing, in which the only matter to be determined by the court was whether a temporary restraining order should issue, to dismiss the bill; that the bill states a cause of action which entitled the plaintiff to a hearing on the merits, and even if it did not state a cause of action the plaintiff had a right to amend and have a trial in due course upon the merits of the case. Although the return of the defendant may be treated as an answer to the petition, it is not contended anywhere by the respondent that the taking of evidence was a trial of the case upon the merits or that the plaintiffs in any way waived their right to have the case proceed in due course. It looks as if Section 2532, Revised Statutes 1909, did not authorize this summary disposition, but the case may be disposed of without determining that question.
II. The ordinance under which the defendant sought to justify his acts in destroying the plaintiffs' boxes, and which the plaintiffs claim is unconstitutional and unreasonable, consists of many sections. The pertinent ones set out in the petition and in the return, are sections 22 and 23. Section 22 provides that a standard bushel box shall be of the following dimensions, inside measurement: length, 23 1/4 inches; depth, 9 3/4 inches; width, 11 inches. Dimensions also are provided for half-bushel, quarter-bushel, eighth-bushel, sixteenth-bushel, and thirty-second-bushel boxes. The bushel box of the dimensions prescribed would contain 2493.56 cubic inches. The other boxes prescribing for fractional parts of a bushel correspond in capacity to the bushel box. Section 11961, Revised Statutes 1909, provides that the cubical contents of the half-bushel shall be 1075.2 cubic inches; double this would be 2150.4 cubic inches. This is approximately the same for the contents of the bushel, 2150.5 cubic inches, as provided by the Federal statute. The cubical contents of the bushel by the ordinance is therefore 343.06 inches in excess of the actual bushel provided by the State and Federal statutes.
The boxes used by the plaintiffs are spoken of in the evidence as "short bushel" boxes. The plaintiffs only claimed that they contained three-fourths of a bushel each, but by actual measurements the contents was seven-eighths of a bushel, and, when heaped up, a bushel. These were the boxes which the plaintiffs were using to dispose of their produce at the time they were seized and destroyed by the defendant. The appellants make a statement of the case which the respondent concedes to be correct, and the statement includes the written opinion of Judge Wilson A. Taylor who heard the case, which opinion sets out at length the facts as determined by him. According to the facts as found by Judge Taylor and as supported by the evidence in the record, the plaintiffs were farmers and truck gardeners. They sold their produce in the boxes mentioned to commission merchants only, who in turn sold it in the same boxes to retail men and hucksters, and such sales were never by the bushel, but always by the box. The commission man, the purchaser, knew exactly the contents of the box, as did also the hucksters who bought from the commission men.
The ordinance provides that it shall be unlawful for any person, firm or corporation to sell or offer for sale in the city of St. Louis any fruits or vegetables in any box or receptacle that is of a capacity different from that prescribed, providing a penalty for the violation of the ordinance. In other words, the ordinance provides an unlawful measurement for the selling of produce. If the appellants were using a box of any other contents than the one prescribed, even though it contain the exact statutory bushel, it would be as unlawful, according to the ordinance, as the boxes they actually used. It is the enforcement of this ordinance which the plaintiffs seek to enjoin.
Respondent, however, presents two reasons why he claims the judgment of the circuit court in dismissing the bill should be sustained here.
III. First, it is asserted, the...
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