Fleming v. City of Mexico

OPINION. BOND, J. (after stating the facts as above).— Upon the admitted facts, and those shown on the trial, it is impossible to distinguish the instant case from that of the Jewel Tea Company v. City of Carthage, 257 Mo. 383. The doctrine of that case is set forth in paragraph 2 of the opinion therein, and demonstrates that the transaction in question in this case falls within the purview of the provision of the Constitution of the United States, vesting the complete and paramount power in Congress “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” [U. S. Constitution, art. 1, sec. 8, ch. 3; Houston, E. & W. Tex. Ry. v. United States, 234 U. S. 342; Gibbons v. Ogden, 9 Wheat. (U. S.) l. c. 222.] The authorities and reason for that view are stated in extenso in the opinion in Banc in that case, and must control the disposition of the present case. Our conclusion is, that the ordinance referred [436] to in the aforesaid statement was and is inoperative so far as the appellant (defendant below) or others engaged in like business are concerned. The respondent did not avail itself of the leave granted until the 24th of October, to file a brief on this appeal, nor made any oral argument at the time of its submission. We have therefore been deprived of the benefit of its theory of the law, applicable to the facts shown in this record, as we were also without any similar aid on the part of respondent in the case of the Jewel Tea Co. v. City of Carthage, supra. The judgment herein is reversed and the cause remanded with directions to dismiss the proceeding against appellant. All concur.