*1 circumstances of facts and evidence by other ly corroborated testimony truth of minds of jurors’ convince would rights appellant’s be noted that will, therefore, single witness. court. the instructions protected amply were argu assignment of error also based an Appellant urged jury assess attorney when he ment of prosecuting imprisonment, “Life stating, punishment, prison term as a long right.” The record be about parole, would possibility of with object to that.” defendant said: “I attorney for the shows that disregard statement. jury advised The court promptly trial asked, can be therefore error all was The trial court did .it improper ruling. argument was predicated correctly. the record and find examined We have court ruled trial it free error. Bobling, GG., judgment Cooley and is affirmed. opinion by Westhues, foregoing
PEE CUEIAM: The court. All the adopted as the Corporation, Appellant, Municipal Corporation, Herter, John Collector Chief of Police. 119 Two, August 17, 1938. *2 Bryan appellant.
Dumbar & Wilson Duhail and respondents. Peter H. Huck for
BOHLING, C. The corpora- Ward a Missouri enjoin tion, seeks to enforcement an ordinance of city class, taxes; fourth imposing occupation prosecutes appeal decree, this an from presenting, among adverse others, issues. constitutional in the manufacture of St.
bakery products Louis, including products solely dealers, retail delivery retailers of said and about said Genevieve. Said located keeps employee delivers its an in Ste. employee, operating
maintains said said truck, effects the re- said said said about tailers Ste. Genevieve. City imposed
An ordinance of said an annual on bakeries $25, graduated capacity within its limits bread; loaves February 13, and on enacted involved, (No. 1121) thereof, provisions the material here understanding reading: insofar as issues, to an “Section 1. There a license tax or levied and fixed twenty-five upon every cor- person, fee of poration engaged in selling, delivering the business *3 delivering kind, or selling any bakery and bread any of or other products, at wholesale retail, any person, company or to or corporation in the Genevieve, Ste. City of Missouri.” 3. There
“Section tax or and a license fee levied fixed upon of ten every person, firm, corporation, or automobile, or operated each other or on or vehicle used Genevieve, Missouri, of City streets Ste. for the purpose traffic, goods, trade, of commerce or wares or merchandise of kind, any of on the streets City and on Missouri, which other license and tax or fee is under levied by any virtue of other ordinance the City now in Ste. force Genevieve, Missouri. 1, “Section That sections 3 of this ordinance Nos. and shall apply to ‘peddlers’ ‘hucksters’ and as defined licensed in and other the City ordinances now force in
nor per- sections Nos. shall and 3 this ordinance to any son, firm, company selling corporation, or at or from his regular or place established Ste. Gene- vieve, Missouri, any or any bread other bakery products, kind or goods, any wares merchandise of kind kinds any all and beverages and soft drinks.” presentation by litigants has rendered un- possible a discussion of certain issues. Section Re- (Mo. Ann., 5762), vised Statutes 1929 provides Stat. p. that cities power levy “shall have ... to and agents, collect a tax and . manufactur- institutions, other and all other business, trades avocations whatsoever. .” However, Sec- tion (Mo. 5871), Revised provides: Statutes 1929 Stat. p. municipal “No in this shall have the power state to im- 'pose a any avocation, business calling,
n unless named specially calling is avocation, pursuit such business municipal corporation, or unless of such the charter taxable in as by conferred statute.” power be against justify seeks exaction of Ste. Genevieve 1. The Baking Sec. 1 of Company (see 7046) named” “specially are “agents” (see Sec. theory denial is made of con- Specific tax. 7287) a license subject as manufacturer or justify a tention tax business, and avoca- trades all other reliance the words “and infra.) (Consult cited cases Section 7046. tions whatsoever” Hammond, 329 Mo. From what Ozark v. is said avocation, pursuit or 129, 131(3), the calling under the facts of the Ward bakery manufacture it products. materials out manu bakery purchases which take products to delivers said factures and sells and (omitting We quote thereof. profit earned manufacture baking company citations) case: “But Hammond one A merchant. ... merchant manufacturer not a trafficker; engaged goods; who is purchase making ... A mater trader. manufacturer one ials, for use. finished, raw into wares suitable partly merchant is distinction between a manufacturer marked dealer, profit, merchant, or sells to earn a and the buy out sells take earned. He must material already product products, to make he and must sell his finished dealings his oc factory it But such his after is finished. cupation. supplies one him with the materials with which *4 it, pursue merely to take the while the other enables him ” Joslyn W. (Mo.), earned.’ Lebanon v. 58 S. also, [See, 289; (2d) 64 Fed. Cripe Baking Bethany, (2d) Co. v. 755.] course, “. And, . . quoting further from the Hammond case: attempt the cities statute does not to confer authority impose manufactur a tax whose ing beyond operations territorial limits.” wholly their conducted “agents In license tax steam laun involving ” dries, by laun not to exact license tax steam authorized dries, representative agent simply said: “Defendant as was the we the principal, part the if no the existed engag require occupation principal a license or tax of his before logically that laundry follow it must required agent.” Independence none be could [City Cleveland, 167 Mo. 67 W. S. 218.] contention is not “license sustainable because tax” fixed,” express words said Section “levied (not calling” upon “agents”- occupation, “business —a . but), not “upon every person mentioned tbe ordinance — corporation engaged selling, business of de- livering person city. in” said City, company’s
2. position that questioning the alleged company’s to be levied greater under Section 3 of the ordinance (see than one-half of State registration fee S. (c), subd. E. Mo. Stat.
p. 5228), general provisions states the (c) said subd. do said license tax proviso is levied under last sub- division, authorizing municipalities “occupation impose taxes passengers, freight for transporting and merchandise hire on within their .” carried limits. Under the facts, said, what we have Baking Company freight occupation “transporting passengers, merchandise hire.” The point city. is ruled presented appellant
Other issues are not determi- essential to a nation the instant review.
The decree with directions to enter a reversed decree injunction permanent enforcement of ordi- Westhues, nance. Cooley GG., foregoing opinion PEE by Bohling, adopted CUEIAM: The court. All Appellant. W. 330. S. Richetti, State v. Adam Two, August 17,