Stegmann v. Weeke

• Decision Date: 05 July 1919
• Docket Number: No. 21152.,21152.
• Parties: STEGMANN et al. v. WEEKE, Commissioner of Weights and Measures of City of St. Louis.
• Court: Missouri Supreme Court

214 S.W. 137

279 Mo. 140

STEGMANN et al. v. WEEKE, Commissioner of Weights and Measures of City of St. Louis.

No. 21152.

Supreme Court of Missouri, Division No. 2.

July 5, 1919.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

Action by Fred Stegmann and others against Henry L. Weeke, Commissioner of Weights and Measures of City of St. Louis. Judgment for defendant, and plaintiffs appeal. Affirmed.

Edward W. Foristel and Taylor R. Young, both of St. Louis, and T. T. Hinde, of Madison, Ill., for appellants.

Charles H. Danes and H. A. Hamilton, both of St. Louis, for respondent.

WHITE,. C.

This is a companion case to No. 21151 of the same title, 214 S. W. 134. Many facts pertinent here are fully set out in the opinion in that case, and it may be read in connection with this case. However, for convenience, it is proper briefly to restate some of them. That was a suit brought by plaintiffs, as farmers and truck gardeners, to restrain the commissioner of weights and measures of the city of St. Louis from enforcing a certain ordinance, No. 29795. In that case the circuit court, on a preliminary hearing for the purpose of determining whether a temporary restraining order should be issued, dismissed the bill without a final hearing on the merits of the case.

The ordinance complained of, enacted August 9, 1917, provided for a bushel box, and boxes holding fractions of a bushel, in which produce, fruits, and vegetables should be marketed, of a cubical content in excess of the statutory bushel as provided by section 11901, R. S. 1909, and by the federal statute. The plaintiffs were using as a bushel box one containing less cubical contents than the statutory bushel. After that case was heard and before its determination the city of St. Louis amended the ordinance so as to make it accord with the statute of Missouri and the federal statute. When that was done and the former case dismissed, the plaintiffs brought this suit to enjoin the enforcement of the ordinance as amended. In their petition in this case they set out the original ordinance enacted August 9, 1917, in full, and the amendment to the same made in April, 1918.

They allege that they are farmers and gardeners and market their produce either to commission merchants, retail grocers, or hucksters; that their produce is packed in wooden boxes, or crates, before being loaded, and in loading the boxes are packed in tiers and so arranged that the bottom tier is protected from upper tiers; that in capacity said boxes or crates range from three-fourths of a bushel, standard measure as defined by statute, to a bushel, and are used by all truck gardeners in the vicinity where plaintiffs grow their produce; that they have been used for 25 years in that manner and are peculiarly suited to the economical and safe delivery of produce; that the plaintiffs and other truck gardeners and farmers have on hand, complete to be used, 1,875,000 of such boxes, which cost them in the neighborhood of $350,000; that their delivery trucks are especially designed to conform to the size of said boxes and crates; that the produce which they sell is neither bought nor sold by the bushel, but, by special agreement between the sellers and purchasers, it is sold by the box or crate, and the purchasers from plaintiffs are not in any manner misled or deceived as to the capacity of the boxes in which the produce is sold; that they deliver their boxes full to the purchaser and receive in return in each case empty boxes of the same size and character froth the purchaser.

Upon the filing of this petition and a bond in the sum of $1,000, duly approved, a temporary restraining order was issued and served upon the defendant, Weeke, who was ordered to show cause on a certain day why the injunction should not issue. Thereupon the defendant filed his return in the nature of an answer to the allegations of the petition. Afterwards the parties filed a stipulation as to certain facts, wherein they agreed that the case might be submitted "for final adjudication upon the petition and the said return of the respondents, to be taken and construed as an answer thereto, and the reply of the plaintiffs filed on that date together with certain stipulations of facts." The court thereupon heard the case upon its merits, found the issues in favor of the defendant, and dismissed the bill, and from that judgment the plaintiffs appealed to this court.

Ordinance No. 29795 in its original form provided, among other things, the duties of the commissioner of weights and measures to test the accuracy of weights and measures and to seize in the name of the city "all false weights, measures, and scales, and to make arrests of persons violating the ordinance by using false weights and measures and scales." It provided for inspection of all weights and measures examined, and penalties for persons having weights and measures in their possession, for refusing to allow them to be tested and examined, and for using weights and measures that are not tested, that the commissioner should mark "condemned" weights, measures, standards, etc., that did not conform to the standard in this state, and that it should be a misdemeanor to use a weight or measure containing a less quantity than represented.

Section 22 of that ordinance fixed the dimensions for standard boxes to hold bushels, half bushels, and other fractional parts of a bushel, making the cubical contents of such boxes greater than the statutory requirements. Section 23 of the ordinance provided for a fee of ten cents each for inspection of such boxes, that they should be inspected once a year, and that it should be a misdemeanor for any one to use boxes of other dimensions for the purpose of selling fruits or vegetables. Those were the sections struck at in the other suit.

By the amendment of April, 1918, sections 22 and 23 of the ordinance were made to read as follows:

"Sec. 22. Standard bushel box and fractional part thereof established.—There is hereby established a standard bushel box, the dimensions of which shall be as follows: Length, twenty-two inches; depth, eight and one-half inches; width, eleven and one-half inches; which bushel box shall contain twenty-one hundred and fifty and five-tenths cubic inches. There is hereby established a standard half bushel box, the dimensions of which shall be as follows: Length, twenty-two inches; depth four and one-quarter inches; width eleven and one-half inches; which half bushel box shall contain one thousand and seventy-five and two-tenths cubic inches. All boxes or containers in which fruits and vegetables are sold or offered for sale shall be of the foregoing dimensions and standards, unless otherwise provided by ordinance.

"Sec. 23. Penalty.—Any person, firm or corporation who shall sell or offer for sale in the city of St. Louis any fruits or vegetables except fresh berries, cherries, currants or other small fruits in any box or receptacle that is of a capacity different from that hereinbefore provided, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than five dollars nor more than five hundred dollars."

It will be seen by this amendment section 22 is in agreement with the statute as to the cubical contents of a bushel. The answer restates much of the same matter contained in the petition, including the ordinance, and sets out at length Judge Taylor's opinion delivered in the previous case.

The stipulation which supplements the pleadings is to the effect that the defendant commissioner of weights and measures intends to arrest and prosecute plaintiffs and others using boxes in violation of the ordinance as long as they fail to use boxes of the exact dimensions and contents provided in the amended ordinance, regardless of how said boxes are marked or whether said boxes contain more than the quantity marked on the box or not; that the defendant, Weeke, has not destroyed any boxes belonging to any of the plaintiffs since the 23d day of April, 1918; "that all persons who now sell direct to the consumer of products sold by the plaintiffs are required to sell and do sell by weight, and not by measure." The further fact was stipulated for what it is worth, that the number of farmers and truck gardeners, naming them, 45 or 50, use boxes which correspond to the requirements of amended sections 22 and 23 of the ordinance.

The amended ordinance at which this proceeding is aimed does not contain the oppressive feature of inspection fee for each box contained in the original ordinance, and there is no threat of the commissioner of weights and measures to destroy without a hearing the boxes or other property of plaintiffs.

I. Appellant asserts that sections 22 and 23 of the ordinance are unconstitutional and in conflict with article 1, § 10, of the United States Constitution, and with article 2, § 15, of the Constitution of Missouri, in that the ordinance, prohibiting a person from selling his produce in any form or manner or in any quantity which he sees fit and which his purchasers desire so long as his method is fair and characterized by honest dealing with his purchaser, impairs the right to make contracts.

As a police regulation, for the purpose of protecting the public and consumers from fraud and imposition in their purchase of commodities, it is recognized by the courts that the legislative authority has the right to regulate weights and measures and delegate that authority to municipal corporations so that the latter, in so far as they exercise police powers, may regulate weights and measures. The question here is whether this regulation is such as to invade the constitutional right to make contracts. This court has considered the question in construing the statutes providing for official weighers of coal and grain. A leading case is State ex inf. v. Merchants' Exchange, 269 Mo. 346, 190 S. W. 903, Ann. Cas. 1917E, 871. In that case the court had under...