Town of Scranton v. Henson

• Decision Date: 03 May 1911
• Citation: 151 Iowa 221,130 N.W. 1079
• Parties: TOWN OF SCRANTON v. HENSON ET AL.
• Court: Iowa Supreme Court

151 Iowa 221

130 N.W. 1079

TOWN OF SCRANTON

v.HENSON ET AL.

Supreme Court of Iowa.

May 3, 1911.

Appeal from District Court, Greene County; F. M. Powers, Judge.

Defendants were accused of the violation of an ordinance of the plaintiff town, in that without a license they carried on a transient mercantile business in the said town. The trial court directed a verdict for defendants, and plaintiff appeals. Reversed.B. O. Clark and J. A. Henderson, for appellant.

J. Y. Luke and Wilson & Albert, for appellees.

DEEMER, J.

Section 700 of the Code provides that “towns shall have power to define by ordinance who shall be considered transient merchants and to regulate license and tax their sales. * * *” Pursuant to this statute the plaintiff town enacted an ordinance from which we extract the following:

“Section 1. Be it ordained by the council of the incorporated town of Scranton, in Greene county, Iowa, that no person, firm or company or corporation shall be engaged in any manner, directly or indirectly, carry on any trade, business, profession, or scheme, hereinafter mentioned, described or defined within the corporate limits of said town until such person, company or corporation shall have first procured a license therefor.

Sec. 2. In all cases applications for license shall be made to the mayor, who shall inform the applicant of the amount required to be paid for the same, and upon production of the receipt of the town treasurer showing that the required amount of such license has been paid to him for that purpose, shall issue to the applicant the required license in accordance with the ordinances of the town, but in no case to be inconsistent to the laws of the state. * * *

Sec. 7. Peddlers and hawkers, proprietors or operators of dollar stores or gift enterprises not prohibited by the laws of the state, all transient merchants and persons transiently remaining in said town and selling or offering for sale, in any manner, any goods, wares, or merchandise, or chattels of any kind, at retail in temporary places of business, or traveling about the town, shall pay a license of not less than ($1.50) one dollar and fifty cents nor more than ($15.00) fifteen dollars, in the discretion of the mayor, for each day so engaged. * * *

Sec. 11. Any person violating any of the provisions of this ordinance shall on conviction thereof be subject to a fine of not less than ($3.00) three dollars nor more than ($75.00) seventy–five dollars, and costs of prosecution, in the discretion of the court or mayor, and shall be imprisoned until such fines and costs are paid, not exceeding thirty days.”

On January 31, 1910, an information was filed before the mayor of the town, accusing defendants of a violation of this ordinance, in that they “did on or about the 29th day of January, 1910, rent and occupy the frame building located on lot 9 in block 10 of the original town of Scranton, Iowa, and place therein a stock of clothing and other merchandise for sale and to be sold by the said defendants at retail temporarily and to be closed out and sold out within the next 60 days, the said stock and goods being a transient stock and goods, and the defendants being engaged in said business temporarily and as transient merchants without buying and procuring a license from the authorities of the said town of Scranton, Iowa, for the purpose of conducting and carrying on said business and the sale of said goods, and the defendants have refused to purchase and buy a license as by ordinance of said town provided, though demanded to do so for the carrying on of said business and the sale of said goods.” Upon trial before the mayor defendants were convicted, and they each appealed. The case coming on for hearing in the regular way before the district court, that court, after hearing all of the testimony for plaintiff, directed a verdict for the defendants upon the following grounds: “(7) That the evidence of the plaintiff entirely fails to show that the defendants are transient merchants under the laws of the state of Iowa. (8) The evidence entirely fails to show in any manner that said stock of goods is to be sold out or removed from the town within such a period as would make them transient merchants.” Plaintiff appeals.

[1] As the case is criminal or quasi criminal in character, we can do no more than announce proper rules of law for the future; for the acquittal of the defendants is final, and they cannot again be tried. Columbus City v. Cutcomp, 61 Iowa, 672, 17 N. W. 47;City v. Unterkircher, 99 Iowa, 401, 68 N. W. 795. See, also, Code, § 5463.

[2] In addition to the claim that the trial court was in error in directing the verdict, certain rulings on evidence are complained of. The testimony tended to show that defendant Henson, in connection with his father, had formerly run a small shoe store in the town of Scranton, but not in the building in which the goods in question were handled. The stock of clothing in question was at Gladbrook, Iowa, the latter part of the year 1909, and in January of the year 1910 was placed in what is known as the Dowling building in plaintiff town. The building was owned by T. Lewis and A. E. Edwards jointly. This building was rented ostensibly by the defendant Henson about January 23, 1910, for no definite period; the agreement being that he should have it for 30 or 60 days or perhaps one year. Defendant Black came with the goods from the town of Gladbrook and remained in Scranton for a period of from ten days to two weeks. He was a stranger in the town of Scranton, but was engaged in the business which was there being conducted in the defendant Henson's name. Henson had an advertisement printed in one of the newspapers published in plaintiff...