St. Charles v. Hackman, 133 Mo. 634

St. Charles v. Hackman

133 Mo. 634 | Mo. | 1896

Barclay, J.

This action was begun before the recorder of St. Charles to enforce the penalty of a bylaw or ordinance of that city.

The defendants at the outset were Frank Hack-man, senior, and Frank Hackman, junior.

The complaint was made by the city attorney, on the information of the city collector, charging defendants (in substance) with the breach of an ordinance, in that they kept a meat shop or market place in the city without having first obtained a license, etc.

*640In the recorder’s court a verdict was rendered acquitting the elder Hackman; but the junior was found guilty by a jury, a fine was imposed upon him, and judgment was rendered accordingly. He appealed to the circuit court, which tried the ease anew and found for the defendant. From a judgment in accordance with that verdict plaintiff appealed.

The trial in the circuit court was had upon ant agreed statement of facts, in which the counsel having charge of the case presented the real issue briefly and clearly. The statement is as follows:

“The City of St. Charles on the 6th day of June, 1892, issued to Langstadt and Hackman (the defendant), a license to carry on a meat shop or market place on the corner of Main and Washington streets in said city, on their payment of fifty dollars to the city collector. They together kept and carried on said meat, shop until the 19th day of August, 1892, when Langstadt retired and sold out his interest in said meat shop and said business to defendant and said partnership was dissolved. Defendant then carried on said meat shop at the same place until June 6th, 1893, without taking out a new license in his own name and paying for the same. Plaintiff now brings this action for an alleged breach of an ordinance by defendant, for-keeping a meat shop without a license between May 1st,. 1893, and June 5th, 1893. Said ordinance is hereto’ annexed and made a part of this agreement, subject, however to all objections of defendant to its legality and to the right of plaintiff to apply the same to this, case and to proceed under it against defendant.”

(A copy of the ordinance will be printed with the official report of the' case.)

1. There can be no doubt under the precedents in this state that the city is entitled to appeal from a judgment for defendant in an action of this sort. SL *641Louis v. Sternberg (1879) 69 Mo. 289; St. Louis v. Vert (1884) 84 Mo. 204.

2. The fact that the city is a party does not bring the case within the jurisdiction of the supreme court. A city within a county has been held to be no “political subdivision of the state” as intended by the constitution. Kansas City v. Neal (1894) 122 Mo. 232 (26 S. W. Rep. 695).

But one of the questions raised entitles the appeal to a hearing here, as involving a construction of the federal and state constitutions.

3. The case was tried by the court sitting as a jury, and both parties submitted it upon a statement of admitted facts. The mode of trial was proper, the defendant being authorized (in such a case as this) to waive, in that manner, his right to a jury trial.

4. Although the proceeding is a statutory action-at law, and no declarations of law were asked or given in the trial court, the finding of the latter on the agreed facts is still reviewable in this court as the case now-stands. The plaintiff moved for a new trial in due time, assigning as error that the verdict and judgment' were against the law, etc., and it excepted to the overruling of its motion. The agreed facts dispensed with further proof by plaintiff, and the finding then became a mere conclusion of law. The merits of that finding, are hence open to review on that record.

5. The appeal of plaintiff rests on the proposition that the license issued by the city, June 6, 1892, to Langstadt and Hackman for a meat shop for one year is no license to the Hackman named therein after. Langstadt left the firm in August, 1892.

The defendant, respondent, answers that the license was in effect equivalent to a contract for the privilege it conferred for a given time, and that it could “not be abrogated at any time without sufficient cause.”

*642There are at least two reasons to negative the latter contention.

An occupation tax (imposed in the form of a license as in the case before us) does not create a contract relation between the municipal corporation and the licensee so as to absolutely require the corporation to permit the pursuit of the occupation for the whole period of the license. The corporation in the exercise of police power may even prohibit the occupation during the currency of the term of the license, without thereby impairing a contractual obligation of the city. But whether or not, in such event, the city would be bound to return the license fee need not be decided in this case. We hold the license itself no contract for the whole period, within the protection of the constitution. It does not seem needful to enlarge upon this ruling in view of prior, decisions sustaining it. Phalen v. Virginia (1850) 8 How. 163; Aetna Ins. Co. v. Reading (1888) 119 Pa. St. 417 (13 Atl. Rep. 451); Sullivan v. Borden (1895) 163 Mass. 470 (40 N. E. Rep. 859).

Furthermore, there has been no change in the local law since defendant and Langstadt obtained their license. If, as plaintiff claims, the true effect of the ordinance is to terminate the right of either partner to the protection of the license as soon as the firm dissolves, then that effect and meaning would enter into, and become part of the license itself. No constitutional right of the defendant would be violated by enforcing that meaning and construction of the ordinance. In that view of the ordinance defendant would have no ground to complain of the invasion of any contractual right protected by organic laws — even were it conceded that the license created such a right. For it is well settled that parties to a contract are to be held to have embodied in it the existing law relating to the *643subject of the contract. Equitable, etc., Society v. Clements (1891) 140 U. S. 226.

No claim is made by defendant that the ordinance is unauthorized by the charter of the city.

6. Defendant next insists that the plaintiff’s proposition is faulty because it does not correctly interpret the effect and meaning of the ordinance.

The license was granted to “Langstadt and Hack-man.” They were not described therein as a firm otherwise than as may be inferred from the form in which their names as quoted appear in the license.

Looking at, the purpose of the tax and the terms of this ordinance it would seem that a license to two persons to carry on a certain business for a year at a certain place should naturally be interpreted to include the right of one of them to so carry on that business. A license to a firm of two would ordinarily be understood to be a license to one of the firm, on the general principle that the greater includes the less.

The law itself might by its express terms exclude such a construction, or by its minor features indicate an intent to exclude it in a given case. But we think the enactment before us gives no indications of such an intent. It is true that the second section of the ordinance declares that the location of the business (carried on under the license) shall not be changed without the mayor’s consent, and that the license “shall not be transferable or used for the benefit of any person other than the one to whom it shall have been issued. ’ ’ But defendant’s reliance is not upon a transfer of any interest of Langstadt in the license: it is placed upon the very terms of that document in giving him, Hack-man, the privileges it purports to grant. The ordinance does not exhibit any purpose to require any personal merits in licensees to keep meat shops.

It must be remembered that the action in hand is *644intended to enforce a penalty. In construing an ordinance, from the standpoint of our present investigation, its meaning should not be expanded so as to subject anyone to a penal liability not fairly and reasonably within its language.

The ordinance by its first section distinguishes between individuals, firms and corporations as licensees under its provisions. But the object of that enumeration of classes appears to be to permit, not only one dealer, but several associated dealers in business at any one shop, to operate under one license, no matter what the form of their association may be. It does not expressly require that each member of a firm shall take out a license in order to avoid the danger of a loss of part of the license fee upon a possible dissolution of a firm in the manner shown in this case. Indeed, it is by no means clear that such separate licenses would answer the exigency of the ordinance for the purpose of partnership operations of such several licensees.

Considering the matter solely on principle, it seems to us that an occupation license for revenue purposes, issued to a firm, should be held a protection to one of its members who continues to prosecute the business at the old stand upon the retirement of his copartner from the business, where there is nothing in the ordinance itself to indicate a different purpose.

7. We have found but little aid in adjudged cases •on this subject.- The most of those cited to us have turned on the reading of particular laws having little in common with the ordinance under construction. One decision, at least, seems to be opposed to the ruling we make. Harding v. Hagar (1874) 63 Maine, 515. But, with all due respect to the court that announced it, we have not been sufficiently impressed with its reasoning to follow it as a precedent.

*645The following cases, however, appear to give some sanction to the' principles we have endeavored to declare: State v. Gerhardt (1855) 3 Jones (N. C.) L. 178; U. S. v. Glab (1878), 99 U. S. 225 (25 L. ed. 273); Hinckley v. Ins. Co. (1885) 140 Mass. 38 (1 N. E. Rep. 737); U. S. v. Davis (1889) 37 Fed. Rep. 168.

The judgment of the learned trial judge should he affirmed. It is so ordered.

Brace, C. J., and Macfarlane and Robinson, JJ., concur.