Stegmann v. Weeks
| Citation | 279 Mo. 131,214 S.W. 134 |
| Decision Date | 05 July 1919 |
| Docket Number | No. 21151.,21151. |
| Parties | STEGMANN et al. v. WEEKS, Commissioner of Weights and Measures of City of St. Louis. |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.
Action by Fred' Stegmann and others against Henry L. Weeke, Commissioner of Weights and Measures of the City of St. Louis, Mo. From judgment of dismissal, plaintiffs appeal. Reversed and remanded.
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.
The plaintiffs are truck gardeners and farmers, and officers of a voluntary unincorporated association which consists of 2,500 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. 29.795, enacted on the 9th 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 plaintiffs to a hearing on the merits, and, even if it did not state a cause of action, the plaintiffs 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, R. S. 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, 23¼ inches; depth, 9¾ 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 2,493.56 cubic inches. The other boxes prescribing for fractional parts of a bushel correspond in capacity to the bushel box. Section 11961 of the Revised Statutes of Missouri provides that the cubical contents of the half bushel shall be 1,075.2 cubic inches. Double this would be 2,150.4 cubic inches. This is approximately the same for the contents of the bushel, 2,150.5 cubic inches, as provided by the federal statute. The cubical contents of the bushel by the ordinance is therefore 343.06 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 contained 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 question is now a moot question. It seems that after the case was submitted to the court in the manner mentioned the board of aldermen of the city of St. Louis repealed the objectionable sections of ordinance 29795, and enacted others in lieu of them, so that there is no longer any possibility of an attempt to enforce them. So, it is argued, this court could not affect the condition of the parties by passing upon the question which is now merely academic.
It is true it has been determined by this court in several cases, when a defendant in any case voluntarily does the thing which the plaintiff seeks to have accomplished by an order of court, at any stage of the proceeding, whether...
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