The City of Moberly v. Hoover

• Decision Date: 07 April 1902
• Citation: 67 S.W. 721,93 Mo.App. 663
• Parties: THE CITY OF MOBERLY, Appellant, v. B. F. HOOVER, Respondent
• Court: Kansas Court of Appeals

67 S.W. 721

93 Mo.App. 663

THE CITY OF MOBERLY, Appellant, v. B. F. HOOVER, Respondent

Court of Appeals of Missouri, Kansas City

April 7, 1902

Appeal from Randolph Circuit Court.--Hon. Jno. A. Hockaday, Judge.

AFFIRMED.

Judgment affirmed.

Frank T. Woods for appellant.

(1) The authorities of the city of Moberly have the right and power to levy and collect a license tax on peddlers without any restrictions upon the common and ordinary meaning of the word "peddler." They had this power given them by the Legislature in 1887; it was continued under the Revised Statutes of 1889; and they still have the same power under the Revised Statutes of 1899. Peddlers of books are nowhere excepted. Session Acts of 1887, p. 72, sec. 39; R. S. 1889 sec. 1506; R. S. 1899, sec. 5857. (2) Under the Missouri statute relating to "laws" it is provided that "The construction of all statutes of this State shall be by the following rules, unless such construction be plainly repugnant to the intent of the Legislature, or of the context of the same statutes: first words and phrases shall be taken in their plain or ordinary and usual sense." R. S. 1899 sec. 4160; Webster's International Dictionary, title "Peddler"; Anderson's Law Dictionary, title "Peddler"; Black's Law Dictionary, title "Peddlers". (3) The contention of respondent in this case is that the word "peddler" in the city law (R. S. 1899, sec. 5857) must be construed according to and is limited by, the definition found under the county law (R. S. 1899, sec. 8861). This view can not be correct.

F. G. Ferris for respondent.

(1) One who deals in the selling of books, by going about from place to place to sell the same, is not a peddler in Missouri. R. S. 1899, sec. 8861; Trenton v. Clayton, 50 Mo.App. 535; State ex rel. v. Allison, 155 Mo. 325. (2) For nearly sixty years it has been the legislative policy of the State that any person may deal as a peddler in the selling of books without obtaining a license therefor. R. S. 1845, sec. 16; R. S. 1855, sec. 20; G. S. 1865, sec. 1; Wag. Stat. 1872, sec. 1; R. S. 1879, sec. 6471; R. S. 1889, sec. 7211; R. S. 1899, sec. 8861. (3) The law on cities of the third class (R. S. 1899, sec. 5857) gives the council "power and authority to levy and collect a license tax on . . . peddlers," but thereby the city council of the city of Moberly is not authorized to levy and collect a license tax on "peddlers of books." Kansas City v. Hallett, 59 Mo.App. 160; Tiedeman on Municipal Corporations, sec. 150; 1 Beach on Public Corporations, sec. 88. (4) If there be a reasonable doubt as to the existence of this power claimed by the appellant, the power will be denied. Trenton v. Clayton, 50 Mo.App. 535; Beach on Public Corporations, sec. 89; 1 Dillon's Municipal Corporations (3 Ed.), sec. 91. (5) The city has no power to pass ordinances licensing peddlers except in conformity with the State law on the subject of "Peddlers and their Licenses." R. S. 1899, sec. 6258.

OPINION

SMITH, P. J.

The defendant was prosecuted and convicted for the violation of an ordinance of the plaintiff--a city of the third class--which provided: "Every peddler shall pay a license tax of five dollars for every day he may sell in the city," etc. The offense alleged in the information was that the defendant "unlawfully exercised the business of a peddler by peddling books within the city without first having obtained a city license therefor, contrary," etc. The charter of the plaintiff (sec. 5857, R. S. 1899) provides that the council shall have power and authority to levy and collect a license tax on peddlers, etc.

The question now presented to us for decision is whether or not the information charges an offense within the meaning of the ordinance. A peddler has been defined to be an itinerant trader, who goes from place to place and from house to house carrying for sale and exposing to sale, goods, wares or merchandise which he carries. State v. Hoffman, 50 Mo.App. 585. The term "peddler" is generic, and unless its signification as just stated has been restricted or modified by statute, the facts alleged in the information make the defendant a peddler; and therefore amenable under the ordinance. The statute defines a peddler in this way, viz.: "Whoever shall deal in the selling of patents, patent rights, patent or other medicines, lightning rods, goods, wares or merchandise, except pianos . . . books, charts, maps and stationary . . . by going about from place to place to sell the same, is declared to be a peddler." R. S. 1899, sec. 8861.

It is thus seen that one who goes about from place to place to sell books is not embraced within the signification of that term. A construction of said ordinance which would make a peddler of one going about from place to place, within the territorial limits of the plaintiff, offering for sale books would render it out of harmony with the provisions of the statute on the same subject from which we have quoted. The rule is, that when it can be seen that the exercise of any jurisdiction by a municipal corporation can not be brought within the scope of the grant of its powers without a conflict with the laws of the State the exercise of such jurisdiction can not be allowed. Kansas City v. Neal, 49 Mo.App. 72; St. Louis v. Bentz, 11 Mo. 61; St. Louis v. Schoenbusch, 95 Mo. 618,...