96 Mo. 63 | Mo. | 1888
The respondent, incompliance with the •stipulation of the parties to this suit, pleaded to the petition, treating it as an alternative writ of mandamus. ' The relator demurred to the return and the case stands ■on this state of the pleadings. The relator is a corporation engaged in refining petroleum oils in the city of St.
The facts, as admitted by the pleadings, are these: The relator has a large tank or reservoir, in which., oils for illuminating purposes are stored. A practice had grown up by which the oil was inspected in the reservoir .and then, under the eye of the inspector, transferred to wagon-tanks, holding from two hundred and eighty-five to five hundred and eighty-five gallons ; and these wagon-tanks were then gauged and branded by the inspector. The oil was then hauled to the retail dealers and sold to them from the wagon-tanks and placed in small metal •store receptacles which were not branded by the inspector. On the ninth of April, 1888, Baggott inspected a sufficient quantity of oil in the reservoir to fill the relator’s wagon-tanks, to the number of twenty or more, and found it to be of the statutory standard for illuminating purposes ; but he declined to see the same placed in the wagon-tanks, which were then produced .and at hand, and he also declined to gauge and brand the same. It is conceded that the relator intended, in .good faith, to haul the oil to the retail dealers and there sell it to them from the wagon-tanks. The respondent admits it to be his duty to inspect the oil in the reservoir in bulk; but he contends that he is only required to gauge and brand it when in barrels “composed of wooden staves and heads, bound with hoops, or in packages of similar construction.” His claim, put in .a practical shape, is, that the retail dealer can only sell from a branded barrel or branded package, and that it is this package from which the retail dealer must sell, and this only, which he is required to brand.
The material portions of the Revised Statutes of 1879, the subsequent amendments not affecting these questions, are as follows :
Sec. 5839: “It shall be the duty of the inspector or -his deputy, when called upon for that purpose by the
Sec. 5840: “* * * All oils or fluids, when once inspected, gauged and branded as aforesaid, shall not again be subject to inspection in this state.”
Sec. 5842: “It shall be the■ duty of the inspector, when requested so to do by the owner, or the person having charge of the same, to inspect any of said oils- or fluids specified in section 5838, contained in large tanks or reservoirs,- by making a single test in the-manner prescribed hf this article ; provided that the sample with which the test is made, shall be taken from the top of the tank or reservoir ; and provided, further, that after making such inspection in bulk, the inspector, or his deputy, shall see the oil or fluid so inspected placed in the packages in which it is intended to be sold, and shall properly gauge and brand said packages in the manner provided for.”
Sec. 5843: “If any person shall sell to any other person whatever, any of said oils or fluids for consumption for illuminating purposes within this state, before-first having the same inspected as aforesaid, * * * he shall be deemed guilty of a misdemeanor, and upon conviction thereof, punished by a fine not exceeding three hundred dollars, and imprisonment in the county jail for thirty days.”
Section 5849 fixes the fees for inspecting, gauging and branding as follows: “For each barrel, or larger package, the sum of twelve cents ; for each small package,
1. The point made by the respondent, that the oil must be put in barrels, or other wooden casks of like construction, before being branded, is technical and without merit. Illuminating oils were thus transported to and sold in our market when these statutes were first passed; but it does not follow that there can be no deviation from that method of transportation and sale. The legislature has expressed no intention to prohibit better and safer methods of transportation and storage. ‘The statute speaks of barrels and packages;' and in section 5840, which provides for attaching the brand or device, packages only are mentioned. It is clear that the word “package” is used in a broad and general sense, and that it not only includes barrels, but casks and small tanks as well. Nor does the statute fix any specific limit upon the number of gallons of fluid these packages may contain, for it speaks of barrels, and of larger and smaller packages. Perhaps the equity of the statute is, that, when the oil is tested in bulk,, the fee for testing, gauging and branding should be at the rate of twelve-cents for each ordinary barrel of fluid. But however that may be, the fluid may, when tested, be put into barrels, casks, or wagon-tanks of the character described in these pleadings, and it is the duty of the inspector to brand these barréis," casks and wagon-tanks.
If the oil should be put into a' barrel and then branded, no one could reasonably question the right of the owner to put the barrel on wheels and peddle out tlie contents to his customers, who are consumers ; and we see no reason why the same thing may not be done by the more convenient method of a wagon-tank. The
The argument against this conclusion of most merit is, that the detection of violations of the law will be rendered difficult. This may be true, to some extent; but it is not the test by which the statute must be tried. The theory of the respondent would prevent the sale of oils, designed for illuminating purposes, in any other way than in branded packages ; so that the consumer would be required to buy a whole package or none. The law does not prohibit breaking bulk after inspection, for purposes of sale, and one inspection is sufficient, and we conclude the retail dealers may purchase from branded tanks, and sell the same to consumers without any other or further inspection or branding.
2. It also appears that the relator has on his premises a small store-tank of -the capacity of fifty-seven gallons, which is used for the purpose of vending oil therefrom, by open measure, in small quantities, to consumers. To enable the relator to thus sell oil therefrom it requested the respondent .to inspect the oil in the tank, and gauge and brand the tank, which respondent
3. As to the third and further claim it is sufficient to say that it relates to three small tanks on premises other than those where the large reservoir was located. It must be taken as admitted that the inspector did not see, and had no opportunity to see, that the inspected oil in the reservoir was actually transferred to these tanks. He was, therefore, not bound to gauge and brand them without an inspection or test. He can only gauge and brand the packages, without a test, where the oil has been tested in bulk, and removed to the packages under his eye.
4. It has been several times held that tlie peremptory writ of mandamus must, in all substantial respects, follow the alternative writ; so that if the alternative writ commands the doing of several things, the relator, to be entitled to the peremptory writ, must show that he is entitled to the performance of all of them. State ex rel. v. Railroad, 77 Mo. 144; School District v. Lauderbaugh, 80 Mo 190. But the article of the practice act, concerning amending pleadings and proceedings, applies to writs of mandamus. R. S., sec. 3585. It is proper practice to amend the alternative writ so that it and the peremptory writ will correspond. High on Ex. Legal Rem. [2 Ed.] sec. 519 ; State ex rel. v. Francis, 95 Mo. 44.
We take what is said in the relator’s printed argument to be a sufficient request to amend the pleadings. The prayer of the petition will be amended by striking out so much as relates to the three small metal store-tanks, the demurrer to the return will be overruled, and a peremptory writ awarded to conform with the prayer of the petition as amended.
