City of Moberly v. Hoover

SMITH, P. J.

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The defendant was prosecuted and convicted for the violation of an ordinance of the plaintiff — a city of the third class — which provided.: “Every peddler shall pay a license tax of five dollars for every day he may sell in the city,” etc. The offense alleged in the information was that the defendant “unlawfully exercised the business of a peddler by peddling boohs within the city without first having obtained a city license therefor, contrary,” etc. The charter of the plaintiff (sec. 5857, R. S. 1899) provides that the council shall have power and authority to levy and collect a license tax on peddlers, etc.

The question now presented to us for decision is whether or not the information charges an offense within the meaning of the ordinance. A peddler has been defined to be an itin *666 erant trader, who goes from place to place and from house to house carrying for sale and exposing to sale, goods, wares or merchandise which he carries. State v. Hoffman, 50 Mo. App. 585 . The term “peddler” is generic, and unless its signification as just stated has been restricted or modified by statute, the facts alleged in the information make the defendant a peddler; and therefore amenable under the ordinance. The statute defines a peddler in this way, viz.: “Whoever shall deal in the selling of patents, patent rights, patent or other medicines, lightning rods, goods, wares or merchandise, except pianos . . . books, charts, maps and stationary .... by going about from place to place to sell the same, is declared to be a peddler.” R. S. 1899, sec. 8861.

It is thus seen that one who goes about from place to place to sell books is not embraced within the signification of that term. A construction of said ordinance which would make a peddler of one going about from place to place, within the territorial limits of the plaintiff, offering for sale books, would render it out of harmony with the provisions of the statute on the same subject from which we have quoted. The rule is, that when it can be seen that the exercise of any jurisdiction by a municipal corporation can not be brought within the scope of the grant of its powers without a conflict with the laws of the State the exercise of such jurisdiction can not be allowed. Kansas City v. Neal, 49 Mo. App. 72 ; St. Louis v. Bentz, 11 Mo. 61 ; St. Louis v. Schoenbusch, 95 Mo. 618 .

As was said by us in Kansas City v. Hallett, 59 Mo. App. 160 : “The by-laws of a municipal corporation in order to be of any validity must be consistent with its charter and the general statutes of the State creating it. This is the well-understood principle of the common law. Such by-laws must not be repugnant to the legislative policy of the State so manifested by its general enactments.” Citing Dillon on Munic. Corp. (4 Ed.), sec. 329; Tiedeman on Corp., sec. 150. The term “peddler” as found in the plaintiff’s charter and ordi *667 nance, must be construed therefore with reference to the general law of the State on the same subject; and when so construed the latter must not be out of harmony or repugnant to the legislative policy of the State as manifested by its general enactment. The term as employed in the plaintiff’s charter must be construed with reference to the definition of it as declared in said section 8861, ante, and so must the ordinance in question. The construction contended for that is to say, that the plaintiff was authorized by ordinance to levy and collect a peddler’s tax on any one going about from place to place offering books for sale, can not be sustained because the exercise of such jurisdiction is in excess of that conferred by its charter. Again, the statute (section 6258) provides: “Every municipal corporation in this State having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the State, unless prescribed by special provision of its charter, shall conform its jurisdiction in the passage of ordinances so as to be in harmony with the law of the State upon the same subject.” And as held in State v. Hoffman, 50 Mo. App. 585 , such corporations can not widen the scope of the powers conferred by their charter. It is our conclusion that by the term “peddler,” as used in the plaintiff’s charter and ordinance it is not to be understood as including persons who go about from place to place offering books for sale.

But the plaintiff contends that if this be so, then if the statute defining that term be repealed such term would become meaningless in the plaintiff’s charter. In this, the plaintiff is in error. If that statute were repealed the term would then have the signification stated by us at the outset, and an offense like that charged in the information would be within the purview of the ordinance.

While we see no objection to the ordinance construed as we have stated it should be, we do not think that the offense charged in the information is within the purview of that ordi *668 nance; therefore, the information was properly quashed by the ■trial court.

It results that the judgment must be affirmed.

All concur.