City of Kansas v. Vindquest

Ellison, J. — The defendant was convicted before the recorder of the City of Kansas for engaging in the business of an “ice dealer” without a city license, as provided by ordinance. He appealed to the criminal court where he was again convicted and he has brought the case here for. review. The case challenges the power of the city under its charter to enact an ordinance requiring an “ice dealer” to take out a license. The provision of the charter, upon which the ordinance is based, is as follows: The common council shall have power by ordinance “To license, tax and regulate auctioneers, grocers, commission merchants, retailers, merchants, hotels and innkeepers, boarding houses, public buildings, public halls, public grounds, concerts, photographists, artists, agents, porters, runners, drummers, public lecturers, public meetings and shows, real-estate agents and brokers, horse and cattle dealers, beer houses, patent-right dealers, inspectors, gaugers, stock-yard and wagon-yard proprietors, mercantile agents, insurance companies, insurance agents, banking and other corporations or institutions, street railroad cars, hackney carriages, omnibuses, carts, drays, job wagons, ice wagons, and all other vehicles, and all other business trades, avocations, or professions, whatever, * * * ” The usual rule in cases of this nature is invoked by defendant as shielding him from the terms of this charter, viz.: That whenever general words follow-particular words of description, the general words do [588] not enlarge the prior particular words, but are restricted in their application to classes similar to those specifically designated. While we will not intimate that the term “ice dealer” is not ejusdem generis with some of the particular words and phrases enumerated, yet we feel that it' is not necessary in this case to consider the rule further than to remark, since it has been earnestly pressed by counsel, that it is a rule of construction to ascertain the real intention of the law-maker, and not a rule of abrogation. State v. Williams, 35 Mo. App. 541; City of St. Louis v. Herthel, 88 Mo. 128. It will be noticed that the charter specially enumerates merchants, among the persons and occupations which may be licensed by the city, and in my opinion an ice dealer, such as defendant was shown to be, will fall within that term. A merchant is said to be “one who traffics or carries on trade.” He is a trafficker as well as a trader. To traffic is “to pass goods and commodities from one person to another for ah equivalent in goods or money.” Webster. If the municipal legislature had used the term, “ice merchant,” instead of “ice dealer,” it is doubtful if any question of power to pass the ordinance would ever have been raised. Considering the evident object of the ordinance, I can see no difference in the meaning of the two terms or phrases. It is contended that as the charter mentions, by name, ice wagons, it thereby meant to exclude the dealer or the business, except as he or it might be affected by the license of the wagon. There is no force in this contention, from the fact that there may be ice dealers who have no ice wagons, and the result would be, if this contention were allowed to be well taken, that only such ice dealers, as delivered ice to their customers by hauling it to them in wagons, would be taxed. If such construction was placed upon the charter, it would permit the escape of all those branches [589] of business’ that use, in connection therewith, any of the vehicles mentioned or included in the charter. II. It is next contended that the defendant gathered and stored his ice in the state of Kansas, and that it was delivered to customers in the City of Kansas, Missouri, upon orders previously taken. The testimony discloses that defendant did gather and store his ice in the state of Kansas ; that he shipped it in cars into the City of Kansas, from whence he would unload into wagons for sale and delivery over the city, but that the sales were made here and there, where a customer could be had, by defendant or by the drivers. I have no doubt that this brought defendant within the meaning of the ordinance. With the concurrence of the other judges, the judgment will be affirmed.