131 Mo. App. 172 | Mo. Ct. App. | 1908
The petition in this action is based on alleged Avrongs done to plaintiff by defendant city in preventing him from prosecuting the business of a peddler of fresh meat Avithin the limits of the city. There Avas a demurrer to the petition on the ground of its not stating a cause of action, Avhich Avas sustained by the trial court. Plaintiff stood upon the petition and brought the case here.
The petition is in- íavo counts. The first alleges that there was an ordinance of the city providing that every peddler should pay a license tax of $25 per year. That while such ordinance was in force he procured and had the city issue to him a license as a peddler for one year from October 1, 1903, for the purpose of peddling fresh meats within the corporate limits of the city, and that he thereby became entitled to and did engage in the business of peddling fresh meat. He then alleges that while so engaged under such license “there was filed before the police judge of said city, an affidavit to the effect that plaintiff had on the —--day of November, 1903, engaged in the business of a peddler without having a license therefor, which affidavit was wholly false, . . . that thereupon the defendant city, its duly constituted officers . . . did arrest plaintiff and brought him before the police court of the city and caused him to be prosecuted and tried in said court for an alleged violation of certain valid ordinances without having obtained a peddler’s license.”
It was further alleged that upon a trial in said police court he was acquitted and the city appealed to the circuit court, where the case was continued for ten months, Avhen defendant abandoned the appeal. That immediately after the appeal “the defendant city, its duly constituted officers and agents did thereupon notify this plaintiff that unless he ceased to engage in his business until the appeal should be finally determined, the city and its officers Avould arrest him and Avould
The second count alleges that plaintiff was engaged in a profitable business of peddling fresh meats under a license issued to him for one year which was about to expire. That he then duly applied for its reissue for another year and tendered $25 as the tax therefor. But the city’s officers “wrongfully” refused to reissue the license as was their duty to do, whereby he was prevented from continuing in his business, to his damage in the sum of $1,600.
A discussion of the first count will in some degree include the second. The first charges that some one, it does not appear who, filed the complaint against Mm charging him with peddling without a license. There is nothing alleged to connect the city or its officers with that act. But it is then stated that the city, through its officers, caused him to be prosecuted. In doing so they only did their duty; for when a citizen makes complaint, under oath, in due form, that there has been a violation of the law, it is the duty of the State or municipality, through proper officers, to enter upon an investigation of such charge by issuing a warrant and causing the party’s arrest.
But it is alleged that upon his acquittal and the city’s appeal from the police judge, the city’s officers deterred him from continuing in the business by threat
The second count also fails to state a cause of action. It is based on the officer’s wrongful refusal to issue him a peddler’s license. It would be a dangerous and hazardous system of municipal government, if it were understood to be a part of it, that liability ensued for the mistake of its ministerial officers in refusing to do an act which is of such nature that the party need not acquiesce in the refusal, but who had an immediate
We have given due consideration to the argument, oral and written, concerning the distinction in liability where the act of the municipality complained of is for its private gain, and where it is for its general public concern and government, but we think that branch of the law' not applicable to the facts stated in the petition.
The judgment should be affirmed, and it is so ordered.