The City of Fulton v. Sims
| Decision Date | 06 January 1908 |
| Citation | 106 S.W. 1094,127 Mo.App. 677 |
| Parties | THE CITY OF FULTON, Appellant, v. WILLIAM T. SIMS, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Callaway Circuit Court.--Hon. Alexander H. Waller Judge.
AFFIRMED.
Judgment affirmed.
D. P Bailey for appellant.
(1) The city of Fulton had the right to enact this ordinance and has the right to enforce the same, both as police regulation and as a source of revenue. St. Charles v. Elsnen, 155 Mo. 671; R. S. 1899, sec. 5841. (2) The weigher's tax is not levied as against State Hospital No. 1. It puts no burden on the State. If it did why should not the State pay its pro rata share of injury done to the streets of appellant? In the city of St. Charles v. Elsnen, supra, it is held that a city of the third class has a right to impose a reasonable license for the use of its streets. (3) Appellant contends that State institutions, colleges, etc., located in its corporate limits are persons within the meaning of section 5841, Revised Statutes 1899, supra, and within the force of said ordinance.
Harris & Hay for respondent.
(1) The power to pass an ordinance regulating weights and measures is strictly a police power. It is exercised for the purpose of affording protection to the inhabitants of a city against false and fraudulent weights in the sale and exchange of commodities. Lamar v. Weidman, 57 Mo.App. 513; McQuillin's Mun. Ordinances, sec. 485, p. 767; Chicago v. Gunning System, 214 Ill. 628; Wheeler v. Aberdeen, 87 Pacif. (Wash.) 1061; Police powers conferred by statute cannot be used for the purpose of revenue. Knox City v. Thompson, 19 Mo.App. 523; St. Louis v. Trust Co., 47 Mo. 150. (2) Ordinances must not in their operation or enforcement contravene the principle of common right. 21 A. & E. Ency. of Law (2 Ed.) p. 989, and authorities there cited. Ordinances regulating the sale or disposition of private property are in derogation of common right and must be strictly construed. 26 A. & E. Ency. of Law (2 Ed.), p. 662, and authorities there cited. (3) Unless expressly so stated in the law conferring power, municipal corporations have no power to affect property under control of the State. Doubt as to the existence of such power must be ruled against the city. Endlich on the Interpretation of the Statutes, secs. 161, 162, 163; Schroder v. Charleston, 3 Brev. (S. C.), 533, 541; McQuillin's Municipal Ordinance, p. 785 (note). (4) In the absence of express authority a municipal corporation has no power to enact an ordinance controling or interfering with the management of a State institution located within its bounds. Ky. Inst. for Education of Blind v. City of Louisville, 8 L. R. A. (New Series) 553 and authorities there cited, and same case also found in 97 S.W. 402; R. S. 1899, secs. 7698, 7699. Section 7 of the ordinance permits persons owning scales to weigh commodities purchased by them on their own scales. Coal Company v. St. Louis, 130 Mo. 331; R. S. 1899, sec. 5841. (6) To make the ordinance in question apply to articles sold the State under special contract as provided by section 7708, Revised Statutes 1899, is unreasonable, oppressive and in restraint of trade, clearly against the obvious intention of the statute and would in ultimate effect be the imposition of a tax upon the property of the State, or at least upon purchases made by the State. St. Louis v. Priesmyer, 12 Mo.App. 592; St. Louis v. Weber, 44 Mo. 547; Hannibal v. Tel. Co., 31 Mo.App. 23; Corrigan v. Gage, 68 Mo. 541; Chicago v. Gunning System, 214 Ill. 628; Wheeler v. Aberdeen (Wash.), 87 P. 1061.
--Defendant was charged with a violation of an ordinance of the city of Fulton, a city of the third class. On a trial in the circuit court he was acquitted.
It appears that the city had an ordinance establishing public scales and providing that coal, hay, etc., should not be sold or bought without being weighed on such scales and a certificate of weight given to the purchaser. Defendant was the owner of a coal mine situated outside of the limits of the city. He sold and delivered coal to State Hospital for Insane No. 1, an eleemosynary institution of the State. [Art. 1, chap. 118, R. S. 1899.] At the trial the following facts were agreed upon: "That the defendant, William Sims, did on the eighteenth day of August, 1906, haul from his coal mines outside city limits of Fulton and deliver to the State Hospital No. 1, in the corporate limits of the city of Fulton, one load of stone coal as alleged in the information herein, without first having the same weighed on the city scales and obtaining a certificate of weight as prescribed in the ordinances mentioned in the information, and that the said coal was sold to the said Hospital by the defendant by contract entered into on the first day of September, 1905, which was prior to passage of ordinance under which this action is brought and which provides that said coal should be weighed on Hospital scales free of charge, and that said coal was delivered under and in fulfillment of said contract and was weighed on scales belonging to said Hospital."
The ordinance in question provides that:
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