Town of Canton v. McDaniel

91 Mo. App. 626, 1902 Mo. App. LEXIS 322

• Court: Missouri Court of Appeals
• Decided: January 21, 1902
• Status: Published

Opinion

BARCLAY, J.

— This action was begun before Hon. John M. Settle, recorder of Canton, Missouri, to enforce a penalty denounced by an ordinance of that town against selling merchandise in that municipality without first having obtained a license to do so, from the proper local authority. Defendant was found guilty before the recorder and fined $20. He appealed to the circuit court of Lewis county, where the cause v7as tried anew before Judge McHee and a jury. Defendant was convicted there and fined $10. He appealed from that conviction to this court, after the usual formalities to obtain a review.

Canton is a municipality governed by a special charter, under which ordinances have been enacted requiring all persons carrying on the business of a merchant or trader by selling or delivering any goods, wares or merchandise, to take out a license, in default whereof any one so offending is declared subject to fine, etc.

The facts out of which the prosecution arose are sufficiently given in the statement on behalf of the appellant, the greater part of which we adopt:

The defendant is a resident of Illinois and a traveling salesman representing Loverin & Browne Company, dealing in groceries at wholesale in the city of Chicago in that State.

In the fall of 1900 the defendant, with his sample case and as such salesman, visited a number of the residents of Lewis and Clark counties, Missouri, and after exhibiting his samples took orders for groceries from those whom he visited. As the customer designated what goods he desired to purchase from Loverin & Browne Company, the defendant would enter in an order book the kind and quantity of goods desired and the price of the same. After the order was completed the defendant made a copy of the same and delivered it to the purchaser.

After a number of such orders were received, defendant sent to Loverin & Browne Company for the goods he had sold. They fihed the order and in shipping the goods consigned the samé to themselves and marked the bill of lading, “Deliver to the order of J. W. Ray.” Mr. Ray is a grain merchant-doing business in the town of Canton. When the goods reached Canton, Mr. Ray received them, and they were placed in his warehouse, from which place the defendant, acting under the directions of Mr. Ray, delivered the goods according to the previous orders and contracts made by him between Loverin & Browne Company and the purchaser.

No goods were delivered except those for which he had previously contracted to deliver and for which orders were taken and contracts made before defendant sent the order to Loverin & Browne Company. At the time of the delivery of the goods, the money for the same was paid to the defendant, who afterwards turned it over to Mr. Ray, he (Mr. Ray) having instructions from Loverin & Browne Company to see that no goods were delivered except such as were paid for. Mr. Ray acted as employee of Loverin & Browne Company and

- No money was paid by the purchaser at the time the order was given nor were any goods delivered at that time, not as the representative of Mr. McDaniel, the defendant. When tbe order was taken by Mr. McDaniel be bad np goods on band with wbicb to fill tbe orders. He did not know at wbat place or on wbat day tbey would make delivery of tbe goods ordered and sold. But, according to arrangements at that time made, be afterwards notified each purchaser by mail, both of tbe time and place of delivery. Neither defendant nor tbe company bad any goods within tbe State of Missouri at the time tbe orders for tbe same were taken. All of the goods delivered by tbe defendant in Canton (on the day be is alleged to have sold as a merchant) were shipped from Chicago, Illinois, to Canton, after orders were secured for tbe same from residents of Lewis and Clark counties, Missouri. At tbe time of tbe payment for the goods, according to previous arrangements and contracts, each of tbe purchasers paid bis pro rata part of tbe freight charges on tbe goods from Chicago to Canton.

It was for delivering groceries in this manner that tbe defendant brought upon himself this prosecution, for dealing as a merchant without a local license.

I. One of tbe most important questions discussed in appellant’s brief is the contention that defendant was engaged in interstate commerce, and, therefore, that tbe town of Canton had no power to impose a tax upon him or his business.

The defendant invoked the commerce clause of tbe Federal Constitution in tbe trial court by offering an instruction wbicb tbe trial court refused, as follows:

“Tbe court instructs tbe jury that the business engaged in by the defendant is regulated by interstate commerce law and tbe town of Canton can not impose taxes or license fees upon tbe same; your verdict will therefore be for tbe defendant.”

Defendant duly saved an exception to tbe refusal of tbe instruction, and preserved it by bill of exceptions which has been made part of the record.

Tbe decision of the trial court was against tbe immunity wbicb tbe defendant claimed and wbicb be still claims under rulings of tbe Federal courts (and especially of tbe United States Supreme Court) interpreting tbe interstate commerce clause of tbe Federal Constitution!

Tbe latest expressions of opinion in tbe Supreme Court of Missouri declare that a defendant may invoke the organic law of tbe United States by offering an instruction at tbe trial, as well as in other ways. State v. Raymond, 156 Mo. 117; Kirkwood v. Meramec Highlands Co., 160 Mo. 111. In tbe case at bar, defendant asked tbe trial court upon tbe undisputed facts to declare that tbe business pursued by the defendant was within tbe protection of tbe interstate commerce law, and that tbe town of Canton consequently could not lawfully impose a license fee upon said business. Tbe court declined to so declare tbe law. A reasonable and fair interpretation of tbe defendant’s request for said- instruction requires us to bold that defendant thereby claimed the protection of tbe Federal Constitution. Tbe instruction could have no other meaning. State ex rel. v. Court of Appeals, 97 Mo. 276. In this view of tbe case, tbe Supreme Court is tbe proper tribunal to adjudicate tbe Federal question so raised on tbe record. The case “involves tbe construction of the Constitution of tbe United States,” within tbe meaning of tbe Constitution of Missouri (Const. 1875, art. 6, sec. 12).

We, therefore, transfer tbe cause to tbe Supreme Court (R. S. 1899, sec. 1657).

Bland, P. J., and Goode, J., concur.