Thiebes-Stierlin Music Co. v. Weiss

• Decision Date: 19 October 1909
• Citation: 121 S.W. 1099,142 Mo.App. 598
• Parties: THIEBES-STIERLIN MUSIC COMPANY, Appellant, v. JOE WEISS, Respondent
• Court: Missouri Court of Appeals

121 S.W. 1099

142 Mo.App. 598

THIEBES-STIERLIN MUSIC COMPANY, Appellant, v. JOE WEISS, Respondent

Court of Appeals of Missouri, St. Louis

October 19, 1909

Appeal from St. Louis City Circuit Court.--Hon. Robt. M. Foster Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Stewart Eliot, Chaplin & Blayney for appellant.

(1) Plaintiff had the right to maintain this action, since default had occurred in some of the payments upon the note and since under the terms of the chattel mortgage upon such default, all of the indebtedness became due and payable at the election of the mortgagee and the mortgagee so elected, and since the chattel mortgage specifically provided that the mortgagee upon such default and election might at once take possession of said property for the purposes of making a sale of the same. Shinn on Replevin, sec. 131. (2) The contract of sale did not come within the prohibition of sec. 3018, R. S. 1899, because the "Regina Concerto" is not a musical instrument within the popular meaning and understanding of the term "musical instrument," as used in said statute. (3) Even if it be considered a musical instrument within the popular meaning and understanding of the term "musical instrument," as used in said statute, yet the contract of sale was valid, since section 3018 does not bar all musical instruments, but certain only, and the "Regina Concerto" is not one of these. (a) Courts interpreting a statute must seek the intent of the Legislature which enacted the statute, and, having discovered what was the legislative intent, interpret the statute accordingly. (b) Courts take judicial notice of public acts whether they be found in the revised statutes or session acts. Worley v. Columbia, 88 Mo. 106; Stone v. Halstead, 62 Mo.App. 136. (c) Courts for the purpose of determining the legality or meaning of a statute, take judicial notice of the journals of the Legislature. R. S. 1899, sec. 3091; 16 Cyc. of Law and Procedure, 907; State v. Wray, 109 Mo. 594; State v. Swiggart, 118 Tenn. 556; Ex parte Helton, 117 Mo.App. 609. (d) Where the title of a statute is restricted or limited, the body of the act cannot be broader. Cooley Const. Lim. (7 Ed.), p. 211; Allen v. Township, 57 N.J. L. 303; State ex rel. v. Schofield, 41 Mo. 39; State v. Persinger, 76 Mo. 346; Wetzmann v. Railroad, 131 Mo. 617; State v. Coffee & Tea Co., 171 Mo. 634; State v. Fulks, 207 Mo. 26; St. Louis v. Wortman, 213 Mo. 138; Lewis Sutherland Statutory Construction, sec. 120. (e) The courts cannot enlarge the scope of a title. Cooley, Const. Lim. (7 Ed.), p. 205; St. Louis v. Wortman, 213 Mo. 140. (f) The title of a statute is a part of it, and aids in, and is a guide to its right construction. Const. 1876, art. IV, sec. 28; Insurance Co. v. Albert, 39 Mo. 181; Dart v. Bagley, 110 Mo. 42; State ex rel. v. Fort, 210 Mo. 527; Sedalia ex rel. v. Smith, 206 Mo. 361. (g) When particular words are followed by general words, the general words will be limited to subjects of a kindred nature to the particular words. State v. Bryant, 90 Mo. 534; State v. Grisham, 90 Mo. 164; State v. Duinisse, 109 Mo. 434. (4) The court, sitting as a jury, erred in assessing the value of the property taken, and in rendering judgment that plaintiff, at the election of the defendant, pay the value so assessed. If the contract of sale was invalid, the court will merely order the return of the property to defendant and must refuse him affirmative relief or the beneficial election allowed by law. Bishop on Contracts (Ed. 1887), sec. 627; Board of Trade v. Brady, 78 Mo.App. 585; Suits v. Taylor, 20 Mo.App. 166; Attaway v. Bank, 93 Mo. 485.

Charles H. Brock for respondent.

(1) If the contract sued upon or relied upon by the plaintiff as the foundation of his right of action provides that the subject-matter thereof is to be used unlawfully, the plaintiff cannot recover. Michael v. Bacon, 49 Mo 474; Curran v. Downs, 3 Mo.App. 468; Nelson v. Townsend, 111 S.W. 394; Roselle v. Bank, 141 Mo. 36; Kitchen v. Greenabaum, 61 Mo. 110; Parsons v. Randolph, 21 Mo.App. 353; Hall v. Corcoran, 107 Mass. 259; Amusement Co. v. Amusement Co., 192 Mo. 404; Tandy v. Com. Co., 113 Mo.App. 409; Ullman v. Fair Ass'n, 167 Mo. 273; Haggerty v. St. Louis Ice Mfg. Co., 143 Mo. 238; Howell v. Stewart, 54 Mo. 400; Tyler v. Larimore, 19 Mo.App. 445; McDermott v. Sedgwick, 140 Mo. 172; Friend et al. v. Porter, 50 Mo.App. 89; Downing v. Ringer, 7 Mo. 585. (2) At common law the maintenance of a place where intoxicating liquors are sold is illegal because said business is detrimental to the public morals. A statute granting the right to engage in such business is in derogation of the common law, and a license granted to one under such a statute conveys only a privilege to engage in the business of selling intoxicating liquors. Any conditions imposed upon the licensee by such a statute are police regulations and he cannot be permitted to carry on said business except by strictly complying with such conditions. Austin v. State, 10 Mo. 591; State ex rel. v. Hudson, 13 Mo.App. 61; State v. Bixman, 162 Mo. 1; State ex rel. v. Moore, 84 Mo.App. 11; State ex rel. v. Hudson, 78 Mo. 302; State v. Seebold, 192 Mo. 720; Barnett v. County Court, 111 Mo.App. 693; State v. Ingram, 118 Mo.App. 323. (3) For the above reasons the statutes permitting and regulating the sale of intoxicating drinks should be interpreted most favorably to the public and against the person carrying on said business under and by virtue of such permissive legislation. State ex rel. v. Higgins, 84 Mo.App. 531; State v. Clinton, 67 Mo. 380; State v. Villines, 107 Mo.App. 593; Yankee v. Thompson, 51 Mo. 234; Bridge Co. v. Ring, 58 Mo. 491; Meade v. Stratton, 87 N.Y. 493; State ex rel. Gumperts v. Higgins, 84 Mo.App. 531. (4) The court, in construing a statute, will so interpret it as to conform with the intent of the Legislature, and it must be given a reasonable construction, keeping in view the purposes of the Legislature in enacting the statute as well as the circumstances surrounding its enactment. State ex rel. Sikes v. Williams (Mo.), 121 S.W. 64; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; Crouse v. Greenfelder, 120 S.W. 666; Ewing v. Vernon County, 116 S.W. 518; City of Lexington v. Bank, 108 S.W. 1095; State ex rel. Eaton v. Gmelich, 106 S.W. 618; State ex rel. v. Harter, 188 Mo. 516; Eubanks v. State, 5 Mo. 450; State v. Williams, 35 Mo.App. 541; Shropshire v. Glascock, 4 Mo. 536; Boynton v. Curle, 4 Mo. 599. (5) The law is well settled that a statute may be enlarged or restricted in its meaning to conform to the intent of the lawmakers when manifested by the aid of sound principles of interpretation. Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; State ex rel. v. Field, 112 Mo. 554; Cole v. Skrainka, 105 Mo. 303; Perry v. Strawbridge, 108 S.W. 641. (6) That which is within the meaning of a statute is as much a part of it as if it were written therein. State v. Ferry Co. (Mo.), 106 S.W. 1005; State v. Reynolds (Mo.), 107 S.W. 487. (7) The rule "ejusdem generis" is by no means of universal application and its use is to carry out, not to defeat, the legislative intent. Where it can be seen that the general word or words were inserted to give coloring to the particular word or words, and where to carry out the purpose of the statute, the general word or words are to govern, it is a mistake to allow the "ejusdem generis" rule to pervert the construction. State v. Broderick, 7 Mo.App. 19; St. Louis v. Herthel, 88 Mo. 128; Ruckert v. Railroad, 163 Mo. 260; St. Joseph v. Elliott, 47 Mo.App. 418; State v. Rosenblatt, 185 Mo. 114; Lexington v. Bank, 108 S.W. 1095; McFarland v. Railroad, 94 Mo.App. 342; Bank v. Haywood, 62 Mo.App. 550; Sedalia v. Smith (Mo.), 104 S.W. 21; Potter on Statutes and Constitutions, p. 48; State v. Corkins, 123 Mo. 56; State v. Harter, 188 Mo. 516; State v. Villines, 107 Mo.App. 593; State v. Williams, 35 Mo.App. 541; Shropshire v. Glascock, 4 Mo. 536; Boynton v. Curle, 4 Mo. 599; Eubanks v. State, 5 Mo. 450. (8) That great public mischief or inconvenience would result from a construction contended for may be taken into consideration in arriving at the meaning of the statute. Steppacher v. McClure, 75 Mo.App. 135; State v. Garrett, 76 Mo.App. 295; Kane v. Railroad, 112 Mo. 34; Bowers v. Smith, 111 Mo. 45; Chouteau v. Railroad, 122 Mo. 375; State v. Slover, 126 Mo. 652; Hilgert v. Pav. Co., 107 Mo.App. 385. (9) The rule of strict construction pertaining to penal laws, like all other rules of construction, must yield to the cardinal principle of all construction, which is that the intent of the lawmakers, when ascertained, must be carried into effect by the courts, if not prohibited by constitutional limitations. Riggs v. Railroad, 120 Mo.App. 335; State v. Woodward, 182 Mo. 391. (10) A leading maxim in the interpretation of statutes is to reject an interpretation which conflicts with the views of the Legislature apparent in the enactment and leads to such consequences as it would be disrespectful to the Legislature to suppose were designed. Connor v. Railroad, 59 Mo. 285; Heman v. McNamara, 77 Mo.App. 1; Bank v. Graham, 147 Mo. 250; State v. Bixman, 162 Mo. 1; State v. St. Louis, 174 Mo. 125; City of Louisiana v. Anderson, 100 Mo.App. 341; Westerman v. Knights of Pythias, 196 Mo. 670. (11) The language of the title is not conclusive of the intent of the lawmakers. That must be determined from the entire act and the surrounding facts and circumstances. The controlling thing, notwithstanding restrictions apparent in the title of the act, is the general purpose of the law. State v. Cantwell, 179 Mo. 245; State v. Saline County, 51 Mo. 350; State ex rel. v. Ashbrook, 154 Mo. 375; Black on Interpretation of Laws, p. 174; State...