Jewel Tea Co. v. City of Carthage, 257 Mo. 383

Jewel Tea Co. v. City of Carthage

257 Mo. 383 | Mo. | 1914

*388OPINION.

BOND, J.

interstate Transaction. (After stating the above facts.) — We have not been favored with any brief or argument on behalf of respondent which has submitted its case for decision after the statement and brief of appellants was filed, without making any reply thereto. The only question which can arise on this appeal is whether the judgment below is the proper legal conclusion from the “agreed statement of facts.” [South Missouri Land Co. v. Combs, 53 Mo. App. l. c. 299; Hinkle v. Kerr, 148 Mo. 43.]

We think not. We see no escape from the force of the facts, evidencing that the business carried on by the plaintiff, in the manner detailed in the stipulation, was interstate commerce and as such protected from the tax or license fee sought to be enforced against its salesman under the provisions of the ordinance quoted in the petition. [Robbins v. Shelby County Taxing District, 120 U. S. 489; Caldwell v. North Carolina, 187 U. S. 622; Rearick v. Pennsylvania, 203 U. S. 507; Dozier v. Alabama, 218 U. S. 124; Crenshaw v. Arkansas, 227 U. S. 389; Breman v. Titusville, 153 U. S. 289; Welton v. Missouri, 91 U. S. 275; Jewel Tea Co. v. Lee’s Summit, 198 Fed. 532.]

The ruling of this court, in Banc, that transactions of the kind under review could only be protected under the commerce clause of the Constitution of the United States when the property sold was without the limits of this State at the time of the sale (State v. Looney. 214 Mo. 216) has not been approved when the construction of that clause was held in judgment in recent cases by the Supreme Court of the United States. That tribunal in considering the same picture and frame business which was analyzed by this court (State v. *389Looney, supra), reached a broader conclusion than this court and held that -even though the transaction as to the sale of the frames was not a complete sale before they arrived in the State of Alabama, yet as they were a part of the contemplated shipment of the pictures which had been ordered by a customer in Alabama from a dealer in Illinois, they were not a separable transaction and were equally, with the pictures, protected from taxation or license fee by the provision of the Constitution touching interstate commerce, saying on that subject, to-wit:

“No doubt it is true that the customer was not bound to take the frame unless he saw fit and'that the sale of it took place wholly within the State of Alabama, if a sale was made. But as was hinted in Rearick v. Pennsylvania, 203 U. S. 507, 512, what is commerce among the States is a question depending upon broader considerations than the existence of a technically .binding contract, or the time and place where the title passed.” [Dozier v. Alabama, 218 U. S. l. c. 127-8.]

Applying this full and complete statement of the construction of the power and duty vested in Congress “to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes ’ ’ (Constitution of the United States, art. one, section 8, p. 3), we are unable to discover any essential difference as to the application of the constitutional provision between the facts set forth in the ease, now under review and those which were considered by the Supreme Court of the United States when the rule above was stated and applied.

In the present case the agreed statement shows that the sales agent of the plaintiff took orders in Carthage for teas, coffees, extracts, spices and other merchandise then kept at plaintiff’s place of business in Chicago, Illinois; that.upon the sending in of said orders each of them was filled by separately wrapping *390and packing the particular article desired by tbe customer; that a number of these orders were placed in a shipping box addressed to the plaintiff, at Carthage, Missouri, and were received by its agent there, who opened the large box, took out the particular packages and delivered an unopened package to the respective customer of the kind and quantity of the particular article ordered by him, thus consummating the transaction. While it is true that none of the separately packed articles were superscribed with the name of the respective purchaser, yet éach purchaser got only what he had bought and in the same unbroken package in which it was enclosed at the point of shipment, Chicago, Illinois. And though it must be conceded that the title of each purchaser accrued only upon the delivery to him at Carthage, Missouri, and therefore in a technical sense each sale was completed within the State of Missouri, yet the contract for the purchase became binding when the order for the goods was received and accepted at Chicago, Illinois, and that made it the beginning of an interstate dealing. This is precisely the point upon which the ruling of the Supreme Court of the United States was predicated, in the case of Dozier v. Alabama, supra, as to the frames which accompanied the pictures. In that case the pictures had been contracted for but not the frames; as to the latter the purchaser had the option to take or refuse as he saw proper. If he accepted them his title was acquired in Alabama, but under the explicit ruling of the Supreme Court that fact did not exempt the purchaser of the frames, from the same protection which was given to the pictures, which had been specifically ordered, under the commerce clause of the Constitution of the United States.

Our conclusion is that the transactions detailed in. the agreed statement of facts in this case were interstate commerce and that the ordinance of defend*391ant was inoperative as to the sales agent of plaintiff who conducted its business in Carthage, Missouri.

injunction II. Neither is there any doubt in our minds that the agreed statement of facts is the subject-matter of equitable relief. Municipal ordinances, like the present, though penal, are not criminal statutes. [Coal Company v. City of St. Louis, 130 Mo. l. c. 330, and cases cited.]

It is apparent from the agreed statement of facts that plaintiff could not have adequate remedy at law. It was entitled to prosecute the lawful business in which it was engaged without the vexation, annoyance and irreparable damage of a multiplicity of suits growing out of an arrest and prosecution of its sales agent for each order and delivery of goods taken and made by him; and defendant admits, in the agreed statement, it intended to institute prosecutions in every such instance except for the temporary injunction granted. The jurisdiction of equity to enjoin interference with interstate commerce by such proceedings under-a municipal ordinance similar to the present, is well established. [Dobbins v. Los Angeles, 195 U. S. 223; Coal Company v. City of St. Louis, 130 Mo. 323; Jewel Tea Company v. Lee’s Summit, Missouri, 198 Fed. l. c. 535.]

In the case last cited the jurisdiction of equity was upheld in a case where the present plaintiff was -complainant, and the enforcement of a similar ordinance was enjoined by restraining any prosecutions thereunder which were begun after the filing of the bill in the Federal court.

The judgment in this case is reversed and the case remanded with directions to proceed in conformity with this opinion.

All concur.