Wonner v. City of Carterville

• Decision Date: 07 February 1910
• Citation: 142 Mo. App. 120,125 S.W. 861
• Parties: WONNER et al. v. CITY OF CARTERVILLE et al.
• Court: Missouri Court of Appeals

125 S.W. 861

142 Mo. App. 120

WONNER et al. v. CITY OF CARTERVILLE et al.

Springfield Court of Appeals. Missouri.

February 7, 1910.

Rehearing Denied February 28, 1910.

1. LICENSES (§ 14) — ON VEHICLES — ORDINANCES — VEHICLES SUBJECT TO LICENSE — "DOING BUSINESS."

Bakery wagons, which made regular trips from house to house in the streets of defendant city, selling and taking orders for bread, were "doing business" within the city, so as to be subject to an ordinance making it unlawful for any person or corporation to engage in certain businesses or occupations without obtaining a license, imposing a license for vehicles, including bakery wagons, and prohibiting any person from participating in doing business, within the city, for which a license is required, or assisting, directly or indirectly, in doing such business as agent or servant without a license, though the bakery was located, in another city.

2. LICENSES (§ 6) — POWER OF CITY — OCCUPATIONS — OPERATING BAKERY WAGONS.

Rev. St. 1899, § 5979 (Ann. St. 1906, p. 3020), gives fourth class cities control over all streets, etc., within their limits, and section 5978 authorizes the mayor and aldermen to license and collect a license tax on merchants of all kinds, grocers, butchers, hackney carriages, omnibuses, carts, drays, transfer and job wagons, ice wagons, and all other vehicles. Held, under the rule of ejusdem generis, applied to the construction of statutes, that such cities could impose a license tax upon bakery wagons.

3. STATUTES (§ 194) — CONSTRUCTION — RULE OF EJUSDEM GENERIS.

The rule that general words following particular words in a statute will be held applicable only to persons or things of the same general character or class is meant to effectuate the legislative intent; and, when it appears that the particular word was inserted for a distinct purpose, and not merely to give color to the general word, the general word should control.

4. LICENSES (§ 6) — POWER OF CITY — NONRESIDENT BUSINESS — BAKERY WAGONS.

Where a city has power under its charter to require a license tax of bakery wagons, the fact that bakery products, sold from such wagons in the streets, were made outside of the city, so that the business itself could not be taxed, would not render the tax of such wagons invalid.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Suit by Henry Wonner and others against the City of Carterville and others, to enjoin the enforcement of an ordinance. From a decree for complainants, defendant named appeals. Reversed and remanded, with directions to dismiss.

The respondents in this case are the proprietors of several bakeries located in Joplin and Webb City, Mo., and were doing business in the city of Carterville at the time this suit was instituted, by means of wagons, which daily visited the town, driving over the streets and selling bread to the inhabitants, and taking orders for bread within the city limits. No place of business was maintained by them within the town, nor were the teams and wagons kept in the town, except when being used there during the day. The drivers of the wagons had no interest in the business of respondents. The drivers for the several respondents were arrested and rearrested by the authorities of the city of Carterville, under an ordinance which is as follows:

"Sec. 302. There is hereby levied and fixed a license tax upon the various objects, subjects, persons, businesses, trades, avocations and occupations, within the city of Carterville, Missouri, hereafter in this chapter named, and the same shall be licensed, taxed and regulated as hereinafter provided.

"Sec. 303. It shall be unlawful for any person, company or corporation to exercise, carry on or engage in any of the following businesses, trades, avocation, or occupations, in the city of Carterville, Missouri, without first having obtained a license therefor from said city, and the charge for said license shall be as follows [after many other businesses enumerated]: Bakery, $10.00 per annum. * * * Vehicles [for each vehicle or wagon]: Baker wagon, $10.00 per annum. [Followed by ice wagons, laundry wagons, oil wagons, grocery and feed wagons, milk wagons, etc.] * * *

"Sec. 311. No person, firm or corporation shall engage or participate in doing business in Carterville, Missouri, for which a license is required by this ordinance or shall attempt to do business, or hold himself or itself out to the public for the purpose of doing business or shall assist directly or indirectly in doing such business or any part of the same in any manner either as owner or proprietor or as officer, manager, superintendent, agent, servant or employé unless a license for the carrying on of or exercising such business shall have been duly issued and shall be in force. * * *

"Sec. 312. Any person or persons, firm or corporation who shall carry on or engage in any trade, business or occupation in the city of Carterville, Missouri, or shall violate any of the provisions of this ordinance, shall be deemed guilty of a misdemeanor and of a separate and distinct offense and misdemeanor under the provisions hereof, for each twenty-four hours that such trade, business or occupation shall be carried on or engaged in without having obtained a license as herein provided for and required, shall be proceeded against as in case of other misdemeanors within the meaning of the ordinance of this city and upon conviction shall be fined for such misdemeanor and offense in any sum not less than five dollars nor more than one hundred dollars."

Neither the employers nor the employés had a license, as required by the above sections. Upon each arrest the driver was compelled to give bond. Respondents filed suit for an injunction in the circuit court of Jasper county, and a temporary restraining order was issued. Later appellant filed a motion to dissolve the temporary restraining order, which upon a hearing was overruled, and the temporary injunction was thereupon made perpetual. Motions for new trial and in arrest were filed, and, these being overruled, the city of Carterville has perfected its appeal to this court. It is assigned as error that the trial court committed error in making a finding for the respondents.

Abernathy & Bates and W. R. Robertson, for appellant. Geo. V. Farris, W. J. Owen, and H. W. Currey, for respondents.

NIXON, P. J. (after stating the facts as above).

1. It is claimed by respondents, as a reason in support of the judgment of the trial court, that they were not subject to the license tax levied because their business was not within the territorial limits of the city of Carterville. It is true that, according to the terms of the ordinance, the trades, businesses, and avocations subject to the license must be carried on within the city of Carterville, and the ordinance does not authorize the levy of any tax on any trade or business outside of the city. It goes without saying that, if the ordinance had undertaken to levy a license tax on the business of respondents transacted outside the city, it would have been wholly ultra vires. And since it is true that the bakeries of respondents were in Joplin and Webb City, and outside the limits of the city of Carterville, their bakeries as such could not consequently have been made subject to a license tax levied by the city of Carterville, as a bakery is a place where bakery products are made and sold. The city authorities made no attempt to enforce their ordinances against the respondents because they did not take out a license on their bakeries. The ordinances were leveled against the use of the bakery wagons on the streets of the city; and, although these wagons belonged to the respondents, as well as the horses and entire outfit, and although the drivers were employed by the respondents, still the business of the sale of the products of respondents' bakeries was carried on within the city of Carterville, and, according to the admissions in the record, these wagons were used in the business of plying the trade on the streets of Carterville, making regular trips loaded with bakery products to be sold from these wagons to customers or dealers, regularly traveling from house to house, selling, and taking orders. We do not doubt that under such circumstances these wagons were being run in the city of Carterville for the purpose of carrying on the business of respondents within said city, no matter where the owners may have resided. The running of these wagons under the circumstances was within the scope and purview of the ordinances of the city of Carterville. It would seem that express provision was made to prevent the evasion of the ordinances by section 311, providing that no person, whether as owner, agent, servant, or employé should, directly or indirectly, assist in any manner in carrying on or exercising any business without a license for which a license was required. The drivers and employés of respondents were engaged in driving these unlicensed wagons, and whether or not they could take out a license in their own name is wholly immaterial, provided that the city had authority under its charter to levy the tax on the bakery wagons.

2. The respondents have challenged the authority of the city under its charter to levy a tax on their wagons. The statute (section 5979, Rev. St. 1899 [Ann. St. 1906, p. 3020]) provides that: "Cities of the fourth class [of which the city of Carterville is one] shall have and exercise exclusive control over all streets, alleys, avenues, and public highways within the city limits of such city." And section 5978 provides that: "The mayor and board of aldermen shall have power and authority to regulate and to license, and to levy and collect a license tax on * * * merchants of all kinds, grocers, * * * butchers, * * * hackney carriages, omnibuses, carts, drays, transfer and job wagons, ice wagons, and all other vehicles, * * * and all other businesses, trades and...