No. 21,151 | Mo. | Jul 5, 1919
The plaintiffs are truck gardeners and farmers, and officers of a voluntary unincorporated association which consists of twenty-five hundred members. The defendant is Commissioner of Weights and Measures of the City of St. Louis. The plaintiffs filed their amended petition in the circuit court of St. Louis on April 24, 1918, in which they set out a certain ordinance of the City of St. Louis, No. 29795, enacted on the ninth day of August, 1917, which was alleged to be in violation of the State and Federal Constitutions and unreasonable and oppressive. Under this ordinance the defendant in his official capacity had destroyed, and threatened to continue destroying, -certain boxes used by the plaintiffs and other members of the association. The petition asked 'for a temporary restraining order and, upon a final hearing, a permanent injunction to prevent said acts on the part of the defendant.
On the filing of said petition the court issued an order directing the, defendant to show cause on a certain day why a temporary restraining order should not be issued. The defendant thereupon, on the day mentioned, filed his return to the order, in which he set out certain sections of the ordinance referred to, prescribing the dimensions of boxes which might be used in the marketing of produce, and alleged that the plaintiffs in marketing their produce used boxes of other and different dimensions, contrary to the ordinance, and for that reason he had seized a number of such boxes.
After hearing the evidence upon the petition and return, the court, instead of merely passing upon the matter- of issuing a restraining order, dismissed the bill at plaintiffs’ costs.
I. Appellants here complain that the court had no right in this mere preliminary hearing, in which the only matter to he determined by the court was whether a temporary restraining order should issue, to dismiss the bill; that the bill states a cause of action which entitled the plaintiff to a hearing on the merits, and even if it did not state a cause of action the plaintiff had a right to amend and have a trial in due course upon the merits of the case. Although the return of the defendant may be treated as an answer to the petition, it is not contended anywhere by the respondent that the taking of evidence was a trial of the case upon the merits or that the plaintiffs in any way waived their right to have the case proceed in due course. It looks as if Section 2532, Revised Statutes 1909, did not authorize this summary disposition, but the case may be disposed of without determining that question.
II. The ordinance under which the defendant sought to justify his acts in destroying the plaintiffs’ boxes, and which the plaintiffs claim is unconstitutional and unreasonable, consists of many sections. The pertinent ones set out in the petition and in the return, are sections 22 and 23. Section 22 provides that a standard bushel box shall be of the following dimensions, inside measurement: length, 23% inches; depth, 9|- inches; width, 11 inches. Dimensions also are provided for half-bushel, quarter-bushel, eighth-bushel, sixteenth-bushel, and thirty-second-bushel boxes. The bushel box of the dimensions prescribed would contain 2493.56 cubic inches. The other boxes prescribing for fractional parts of a bushel correspond in capacity to the bushel box. Section 11961, Revised Statutes 1999, provides that the cubical contents of the half-bushel shall be 1075.2 cubic inches; trouble this would be 2150.4 cubic inches. This is approximately the same for the contents of the bushel, 2150.5 cubic inches, as provided by the Federal'
The boxes used by the plaintiffs are spoken of in the evidence as “short bushel” boxes. The plaintiffs only claimed that they contained three-fourths of a bushel each, but -by actual measurements the contents was seven-eighths of a bushel, and, when heaped up, a bushel. These were the boxes which the plaintiffs were using to dispose of their produce at the time they were seized and destroyed by the defendant. The appellants make a statement of the case which the respondent concedes to be correct, and the statement includes the written opinion of Judge Wilson A. Taylor who heard the ease, which opinion sets out at length the facts as determined by him. According to the facts as found by Judge Taylor and as supported by the evidence in the record, the plaintiffs were farmers and truck gardeners. They sold their produce in the boxes mentioned to commission merchants only, who in turn sold it in the same boxes to retail men and hucksters, and such sales were never by the bushel, but always by the box. The commission man, the purchaser, knew exactly the contents of the box, as did also the hucksters who bought from the commission men.
The ordinance provides that it shall be unlawful for any person, firm or corporation to sell or offer for sale in thp city of St. Louis any fruits or vegetables in any box or receptacle that is of a capacity different from that prescribed, providing a penalty for the violation of the ordinance. In other words, the ordinance provides an unlawful measurement for the selling of produce. If the appellants were using a box of any other contents than the one prescribed, even though it contain the exact statutory bushel, it would be as unlawful, according to the ordinance, as the boxes they actually used. It is the enforcement of this ordinance which the plaintiffs seek to enjoin.
III. First, it is asserted, the question is now a' moot ■question. It seems that after the case was submitted to the court in the manner mentioned the Board of Aider-men of the City of St. Louis repealed the objectionable sections of Ordinance 29795, and enacted others ^eu them, so that there is no longer any possibility of an attempt to enforce them. So, it is argued, this court could not affect the condition of the parties by passing upon the question which is now merely academic.
It is true, it has been determined by this court in several cases, when a defendant in any case voluntarily does the thing which the plaintiff seeks to have accomplished by an order of court, at any stage of the proceeding, whether it is done before or after the trial or before or after the appeal is granted, the suit may be abated. [Hicks v. City of St. Louis, 234 Mo. l. c. 653.] The repeal of an ordinance pending a prosecution under it, operates to relieve the defendant from further prosecution. [Electric Light & Power Co. v. St. Louis, 253 Mo. l. c. 603.] It is true in this case, the repeal of the ordinance at which the plaintiffs strike would disarm them, if that were all there is in the case. It is held, however, that before a defendant may abate a case by complying with the demands of the petition he must comply with all such demands, including the payment of the cost. [State ex rel. v. Philips, 97 Mo. l. c. 339-40.] This court there said in relation to that matter, l. c. 339: “The plaintiff had the right to have the full measure of the relief he claimed, or else by a solemn adjudication of the court, to know the why and the wherefore of the refusal which denied him redress in full, of his demands.” Also, 1. c. 340: “Plaintiff was entitled, to insist that the court should make such a thorough disposition of the whole cause as would protect him even against nominal damages or costs.”
In this case the bill was dismissed at the plaintiff’s costs. Not only that, but according to the statement which respondent admits is correct, the defendant intended to continue the destruction of plaintiff’s boxes. If the court did not enjoin this proceeding he would continue to break up the boxes “until there is not another dinky box left in town.” The threat'could hardly be stronger. That is to- say, the Commissioners of Weigths and Measures proposed, without a hearing, to punish all whom he believed to be violators of the ordinance as amended. So the repeal of the objectionable ordinance did not give the plaintiffs a full measure of relief, for the reason that the costs were assessed against them and for the reason that the destruction of their property was to be continued. Therefore, the determina-, tion of the case does not turn upon a mere moot question, but upon questions which, the plaintiff has a right to have considered, though the result may have no effect except to determine upon whom the costs shall fall.
IY. The other point made by respondents is that the plaintiffs in this case did not come into court with clean hands. That was the theory as stated by Judge Taylor upon which he dismissed the bill. The fact that this question was decided without a hearing upon the merits of the case, but upon a mere preliminary consideration ,of the question, whether upon the face of the petition a temporary restraining order should be issued, is sufficient to stamp it as error. But inasmuch as the case is to be further considered by the circuit court it is well enough to touch upon that question.
The ancient maxim that he who comes into equity must come with clean hands has been applied to various
If the plaintiffs originally had constructed the boxes, had devised their contents, and had sold with the understanding that some purchaser would be deceived, there might be some reason for saying they did not come into equity with clean hands in seeking to prevent the destruction of .the boxes. But it is shown that the commission men who purchased from the farmers bought by the box, knowing fully its contents, and never by the bushel; that the purchasers from the commission men, the retail dealers and the hucksters, - bought in the same way. It is not shown that any consumer was deceived by these boxes. That is a matter upon which there is no allegation and no evidence. There is no evidence even that any consumer ever purchased any produce in those boxes. The finding of Judge Taylor is to the effect: “These same short bushels are handed on down to the retailer and very likely to the consumer.”
It is not sufficient to show that there was a possibility of unfair dealing by some remote person in the chain of transactions, hut it must be shown that the plaintiffs had reason to believe actual unfair dealings would be conducted.
These same boxes had been in use for twenty-five years; when heaped up they held a bushel, when level full they held seven-eighths of a bushel. The plaintiffs in the beginning probably in each case came into a business in Avhich several thousand other farmers and truck gardeners were engaged, and found these boxes in universal use and no complaints made. They furnished their produce in the boxes and received empties' to the same number in
The conclusion is that the trial court was .in error In dismissing the petition without a hearing, and no considerations have been presented .to relieve from the consequences of that erroneous ruling.
The judgment is reversed and the cause remanded.
The foregoing opinion by White, C., .is adopted as the opinion of the court.