Town of Canton v. McDaniel

• Citation: 86 S.W. 1092,188 Mo. 207
• Parties: TOWN OF CANTON v. McDANIEL.
• Decision Date: 30 March 1905
• Court: United States State Supreme Court of Missouri

86 S.W. 1092

188 Mo. 207

TOWN OF CANTON v. McDANIEL.

Supreme Court of Missouri.

March 30, 1905.

MUNICIPAL CORPORATIONS—MERCHANTS—LICENSES —CITY ORDINANCES—VIOLATION—PENALTIES —INTERSTATE COMMERCE—SALES—ACTIONS —INSTRUCTIONS.

1. Where, in a proceeding to recover a fine for engaging in business as a merchant without paying a license, in violation of a town ordinance, the court refused an instruction that the business in which defendant was engaged was regulated by interstate commerce, and that the town could not impose taxes or license fees thereon, to which an exception was duly saved, and a denial of such instruction was preserved in a bill of exceptions, a federal question was thereby properly raised, so that the appeal was properly removed from the Court of Appeals to the Supreme Court.

2. Defendant, having taken orders for groceries in Missouri, sent such orders to a wholesale grocery firm in Illinois, by which the goods were shipped to the firm's order, who sent a bill therefor, accompanying a bill of lading, to their Missouri agent, with directions to deliver the goods only as paid for; agreeing to allow a commission for collection, and the return of goods as cash, if return freight charges were prepaid by defendant. On arrival of the goods, they were delivered to the customers and paid for. Held, that such transaction did not constitute a sale of the goods in Illinois on their being delivered to the carrier, but that the sale was wholly executory until the goods were delivered in Missouri, and the purchase price paid.

3. Defendant was a merchant, as defined by Rev. St. 1899, § 8540, declaring every person who shall deal in the selling of goods, wares, and merchandise, at any store, stand, or place occupied for that purpose, to be a merchant, and was therefore within a town ordinance prohibiting any merchant from carrying on business without having first obtained a license from the town marshal, and providing a penalty for violation thereof.

4. In a prosecution for violating a town ordinance licensing merchants, a sentence of an instruction given for defendant—that, to be a merchant, some particular place must be occupied for the purpose of selling as well as from which to deliver the goods—was not in conflict with an instruction for plaintiff that the storing of goods in a room or place, to be kept until delivered to customers, and the keeping of them there until delivered to 20 or 30 customers, and by them then paid for, constituted the party so storing and delivering the goods a merchant at the room or place where the goods were stored, delivered, and paid for.

5. In an action for violating an ordinance licensing merchants, an instruction that one who supplies goods alone to the previous order of his customers is not a merchant, within the meaning of the law, though erroneous, as misleading, was favorable to defendant, of which he could not, therefore, complain.

6. In an action for violating an ordinance licensing merchants, evidence that defendant refused to sell witnesses goods on a particular date was inadmissible; his reason for such refusal being that he only had goods for such customers as he had agreed to supply on orders previously taken.

7. Defendant, having taken orders for groceries in Missouri, sent them to wholesale grocers in Illinois, where the different articles were made up in packages, and all shipped together in one or more large boxes and barrels to the grocers' own order in Missouri, with directions to their agent not to deliver the goods to defendant until paid for. Such agent received the goods and removed them to his warehouse, where the bulk was broken, and the different packages for each customer segregated and delivered to them, through defendant, on their paying the price to defendant, and he delivering the money to such agent. Held, that the sale was not a transaction in interstate commerce.

8. An acquittal in a criminal prosecution against a merchant for the alleged violation of a town ordinance prohibiting a person from engaging in the business of a merchant without obtaining a license was no bar to a subsequent civil action to recover a penalty for violating such ordinance.

In Banc. Appeal from Circuit Court, Lewis County; E. R. McKee, Judge.

Information by the town of Canton against W. W. McDaniel to recover a fine for defendant's engaging in business as a merchant without obtaining a license therefor. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Jerry M. Jeffries and Edgar B. Tolman, for appellant. O. C. Clay and A. F. Haney, for respondent.

GANTT, J.

This is an information or action by the town of Canton against W. W. McDaniel to recover a fine of $100 for the violation of an ordinance of said town by exercising and carrying on the business trade or occupation of a merchant in said town on the 22d day of December, 1900, by selling and delivering goods, wares, and merchandise, to wit, sugar, flour, coffee, tea, and other groceries, and four empty barrels, at a store, stand, or place occupied by him for that purpose in said town, without first having obtained from the marshal of said town a license therefor. The action was commenced before the recorder of the town, and a trial resulted in a fine of $20 against defendant. An appeal was taken to the circuit court of Lewis county, and upon a trial therein the plaintiff recovered a verdict and judgment for $10 and costs. From that judgment defendant appealed to the St. Louis Court of Appeals, but that court transferred the cause to this court, for the reason that a federal question was involved, to wit, that defendant was engaged in interstate commerce, and therefore the town of Canton had no power to impose a tax upon him or his business. The federal question was raised by the following instruction offered by defendant and refused by the circuit court: "The court instructs the jury that the business engaged in by the defendant is regulated by the interstate commerce law, and the town of Canton cannot impose taxes or license fees upon the same. Your verdict will therefore be for the defendant." An exception was duly saved to the denial of this instruction, and preserved in the bill of exceptions.

As the federal question was properly raised by the instruction, and ruled adversely to defendant, the cause was properly sent to this court by the Court of Appeals. State v. Raymond, 156 Mo. 118, 56 S. W. 894; Kirkwood v. Meramec Highlands Co., 160 Mo. 111, 60 S. W. 1072.

The controlling facts developed on the trial are in substance as follows:

The town of Canton is a municipal corporation organized and existing under a special charter granted by the General Assembly of Missouri, and approved March 19, 1873. Laws Mo. 1873, pp. 208-220. By section 9, art. 6, p. 215, "the board of trustees [of said town] have power and authority to license, tax and regulate auctioneers, merchants and retailers, grocers, taverns and ordinaries, saloons, dramshops and all places where distilled or fermented liquors are sold, and all venders of the same, and all hawkers, peddlers, brokers, pawnbrokers and money changers," etc.

The defendant W. W. McDaniel is a resident of the state of Illinois, and the Loverin & Browne Company is a wholesale grocery house in the city of Chicago, Ill. In the fall of 1900 defendant went from place to place in Lewis county, Mo., exhibiting his samples, and taking retail orders for groceries from various persons; and of each order so taken, defendant made a memorandum, and delivered the customer a copy thereof. At the time of taking each order, defendant notified each customer that the goods would be delivered at Canton at some future time, of which he would notify him before making the delivery, and defendant did so afterwards notify each of said purchasers. After taking a large number of such orders, the defendant sent them to the Loverin & Browne Company to be filled. The company filled the orders, and sent the goods to Canton, Mo., consigned to themselves, and sent the bill of lading therefor to Mr. Jno. W. Ray, of Canton, Mo., and indorsed thereon, "Deliver to the order of Jno. W. Ray." Mr. Ray is or was at the time a grain merchant doing business in Canton. The authority of Mr. Ray in the matter is disclosed by the following letter:

"Chicago, Dec. 18, 1900. Mr. Jno. W. Ray, Canton, Mo.—Dear Sir: At the request of Mr. W. W. McDaniel, we hand you herewith a bill for collection, with bill of lading attached amounting to $218.47 for a shipment of groceries to him, and will allow you 2% for collecting.

"We presume Mr. McDaniel has explained this matter to you, but we will say that this collection covers a number of orders sold to customers in and around Canton, who will call for their goods at the depot there on the 21st instant, and you will please see that no goods are delivered without being paid for.

"Should there be any goods left over after delivery, they can be returned to us as so much cash in settlement at the invoice price, provided the freight charges are prepaid by Mr. McDaniel.

"You are not authorized to take notes or anything but current exchange in payment for this collection.

                      "Yours truly
                          "Loverin & Browne Company."
                

He testifies that when the goods arrived in Canton he went with Mr. McDaniel to the station, and directed the goods turned over to McDaniel. McDaniel paid the freight, and then the goods were taken to his (Ray's) warehouse in Canton. Ray testifies further: That he did not see McDaniel sell any one goods on that day. He was merely delivering goods that had been previously sold to parties he had sold to. That he (Ray) was the agent of Loverin & Browne Company as fas as collecting the bill for these goods was concerned. They paid him 2 per cent for so doing. No goods were delivered except those which he had previously contracted to deliver, and for which orders were taken and contracts made before defendant sent the order to ...