have many faults. I wish to get rid of him for whatever sum he will fetch. I desire my servant to dispose of him and, instead of giving a warranty of soundness, to sell him with all faults. Having thus laboriously freed myself from responsibility, am I to be liable if it be afterwards discovered that the horse was unsound? Why did not the purchaser examine him in the market when exposed to sale? By acceding to buy the horse with all faults he takes upon himself the risk of latent or secret faults, and calculates accordingly the price which he gives. It would be most inconvenient and unjust if men could not, by using the strongest terms which language affords, obviate disputes concerning the quality of the goods which they sell. In a contract such as this I think there is no fraud unless the seller by fraudulent means renders it impossible for the purchaser to detect latent faults, and I make no doubt that this will be held as law when the question shall come to be deliberately discussed in any court of justice." If that reading is law, we find here the respondent doing precisely that which protects a vendor from liability for all defects in the article sold, whether secret or not. This statement challenged inspection and left no ground for complaint, and it is only met by an argument drawn from the contagious diseases (animals) act, which, it is said, assumes that a person exposing animals for sale must be taken by his conduct to represent that they are free from contagious disease. This argument is a subtle one, but it does not satisfy me, for the conditions of sale are expressly stated, and no additional one can be implied. It is assumed that the vendor and all vendees have a knowledge of the act; but, even if such knowledge exists, why may we not say that the seller was willing to run the risk of a contravention of the act, while expressly guarding himself against any liability towards the buyer of the animals? I cannot see how a purchaser can say that the act of sending animals to market implies that they are free from contagion in any case, especially if he declines to give a warranty, and I can find no connection between the contract of sale and the statute, which was passed, not to regulate the sale of animals, but to protect the public from the spread of cattle disease. I think the case was put on the correct ground by Lord Justice Brett, and I agree in the judgment which has been proposed.

LORD SELBORNE :

I feel constrained to concur with my noble and learned friends, though I do so with regret. There are no words in the conditions of sale which can amount to a warranty, and to say that a man, in all his dealings, impliedly warrants that he does not infringe any particular act of parliament, is a contention that cannot be supported. The statute cannot make an act done in connection with private contract an actionable wrong if it was not actionable independently of the statute. Judgment affirmed, with costs.

1. ORDINANCE IMPOSING LICENSE TAX ON PRACTICING LAWYERS WITHIN SAID CITY, VALID.-An ordinance of the city of St. Louis, under its scheme and charter, imposing a license tax alike on all lawyers practicing within the limits thereof, is a valid exercise of the taxing power delegated to said city, and is not in conflict with any of the provisions of the Constitution of this State. The mere fact that it demands of every lawyer the same amount of tax without reference to income, emoluments, or profits of his practice as such, does not render such tax unequal; nor does the fact that the general assembly has so far failed to pass any law imposing a license tax on lawyers throughout the state, make it obnoxious to that section of the Constitution requiring taxes to be uniform on the same class of subjects within the territorial limits of the authority imposing them.

2. POWER OF TAXATION OF CITY OF ST. LOUIS DERIVED FROM THE CONSTITUTION. The taxing power has not been delegated to the, City of St. Louis by virtue of any enactment of the general assembly, but is derived from the Constitution itself, by virtue of which the said city had the right to adopt as its organic law, a charter containing any or all provisions in its charter at the time of the adoption of such new charter, and such other provisions as would not be inconsistent with the general aws of the State. This includes the full exercise by municipal legislation of the taxing power for municipal purposes, and no general law for that purpose is necessary.

3. POWER GIVEN TO ENFORCE PENALTIES FOR ITS VIOLATION.-The municipal assembly of said city has the power under the new charter to provide for the infliction of fines and penalities on every lawyer who prosecutes his business as such within the limits of said city without having first taken out the license required by the ordinance, and to further provide for recovery of such fines and penalties by appropriate civil or criminal proceedings.

APPEAL from St. Louis Court of Appeals.

NORTON, J., delivered the opinion of the Court: This proceeding was commenced in the police court of the city of St. Louis, upon the following complaint.

"City of St. Louis, Missouri, September, 29th, 1877. Theodore Sternberg, to the City of St. Louis, to fifty dollars for violation of sections one and three of an ordinance of said city, entitled, an ordinance No. 10,368, concerning lawyers, and fixing the amount of their licence, approved Sept. 7th, 1877, in this to wit: in the city of St. Louis and State of Missouri, on the 26th day of September, 1877, and on divers days and times between said date, and the 7th day of September, 1877, c'id then

and there, being a lawyer, exercise the business and profession of an attorney and counselor at law, and did enter upon and continue the exercise and practice of his profession as aforesaid, and did practice law and plead for other parties in the professional capacity aforesaid, in the courts of justice within said City of St. Louis, without first having obtained a license therefor, contrary to the ordinance in such case made and provided. On information of M. A. Rosenblatt, city collector, Samuel Erskine, city attorney for the City of St. Louis."

The

The defendant duly appeared, and an agreed statement of facts was filed, by which it was conceded that defendant was within the purview of the ordinance, and that he had violated the same, and the case being submitted, judgment was rendered in favor of the city for twenty-five dollars and costs, and execution rendered therefor. defendant appealed to the Court of Criminal Correction, and there moved to dismiss the information on many grounds involving the validity of the ordinance, and his motion was overruled, and judgment was rendered in favor of the city for twenty-five dollars and costs. And by appeal the case was taken by defendant to the St. Louis Court of Appeals, where the judgment was reversed, from which plaintiff has appealed to this court.

It is claimed by plaintiff that the following ordinance passed by the City of St. Louis, on the 7th day of September, 1877, and on which the action is based, justifies the proceeding.

"Section 1. No person shall exercise within the City of St. Louis, the business or profession of a lawyer without a license therefor, as hereinafter provided.

"Section 2. A lawyer, within the purview of this ordinance, is a person who is put in the place,stead or turn of another, to manage his matters of law,or whose office is to appear for parties to actions and other judicial proceedings, and to prosecute and defend them in their behalf, and whose authority is derived, either from a formal warrant of attorney, or a mere oral retainer.

"Section 3. Every lawyer before entering upon or continuing the business of his profession in the City of St. Louis, shall obtain from the collector an annual license therefor, for which he shall pay to the collector, in advance, the sum of twentyfive dollars.

"Section 4. Any person who violates any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and on conviction, shall be fined not less than $25, nor more than $50 for each offense."

It is contended that the taxing power of the State has never been delegated or conferred upon the City of St. Louis, and that therefore the ordinance in question, imposing a license tax is void. If the premises thus assumed be well founded, the conclusion deduced necessarily follows, for we give full recognition to the doctrine laid down in Dillion on Mun, Cov. sec. 605, that "it is a principle universally declared and admitted, that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property,

unless the power be plainly and unmistakably conferred." It is true as contended by defendant that the power to tax has not been delegated to the City of St. Louis by virtue of any act of the General Assembly, but plaintiff looks to a higher source of power than is to be found in any legislative enactment, and claims to derive the authority from the Constitution itself. A careful examination of the provisions of the Constitution which gave rise to the existing government in St. Louis, will, we think, demonstrate that the claim, thus made, is fully justified.

* * *

It will be observed that in Art. 9 of the Constitution, under the head of "Counties, cities and towns," St. Louis is singled out from all the other cities and towns in the State, and sections 20, 21, 22, 23, 24 and 25, of the article contain provisions relating exclusively to it, The general purpose that the city might have the power to enlarge its limits and separate itself in a governmental point of view from the county, and have the right, as a municipality, to govern itself, provided its government should be in subordination to, and consistent with the Constitution and laws of the State, is manifested throughout the above sections. Section 20, after authorizing the city to enlarge its limits, provides for the election of a board of thirteen householders, whose duty shall be to propose a scheme for the government of the city,by a CHARTER which shall always be in harmony with and subject to the Constitution and laws of the State, and which shall, among other things, provide for a chief executive and two houses of legislation." It further provides that "such charter, when ratified by a majority of the qualified voters, shall become the organic law of the city, and, at the end of sixty days thereafter, shall take the place of, and supersede the charter of St. Louis, and all amendments thereof." Section 21 requires all courts to take judicial notice of such scheme and charter when filed in the office of the secretary of state, and among the archives of the city, as therein provided. Section 23, among other things, declares that "in the adjustment by said scheme of the relations between the city and county, the city shall take upon itself the entire park tax; and in consideration of the city becoming the proprietor of all the county buildings and property within its enlarged limits, it shall assume the whole of the existing county debt, and be exempted from all county taxation."

It is clear, we think. from these sections, that it was the intention of the framers of the Constitution, that the City of St. Louis might adopt as its organic law, a charter containing any or all the provisions then in its charter, and such other provisions as would not be inconsistent with the Constitution and laws of the State. That the voters of St. Louis had the right to adopt a charter cannot be denied; nor can it be disputed that, when adopted in conformity with the requirements of the Constitution, in sixty days thereafter, it superseded and stood in the place of the charter for the government of the city at the time of its adoption; nor can it be questioned that, in sixty days after its adoption, all special laws relating to

St. Louis county, inconsistent therewith, were also superseded.

As neither state, county or municipal government can be maintained without revenue, and as revenue cannot be raised without the exercise of the taxing power in some form, it would follow, as the logical result of defendant's theory, that St. Louis would be practically left without any government. It could not be subjected to the county government, because the effect of the scheme was to separate it from the county for governmental purposes, nor could it be governed under the charter in existence before the adoption of the scheme, because that was superseded by the new charter; nor could it be governed under the new charter adopted by the voters, because, as defendant insists, under it no power to tax exists.

That

It certainly could not have been designed to take from St. Louis both the county and city government which it enjoyed and leave it without any, in a condition of utter chaos and confusion; but, on the contrary, it must be presumed that the framers of the Constitution had in their minds the fact, that it was wholly impossible to conduct a city government in a city like St. Louis, without the power of taxation being vested in those charged with conducting such government, and the right to adopt a charter necessarily implied the right to put in it such provisions as would enable the city to maintain its government. The very term "charter," signifies an act of incorporation bestowing rights, powers and privileges, and the only limitation which the Constitution authorizing its adoption imposes, is that it shall be in harmony with the Constitution and laws of the State. the term, "charter," was used in this sense is clear from the fact that it declared that "it shall among other things provide for a chief executive and two houses of legislation," and that, "when adopted, it should become the organic law for the government of the city." Under the theory of defendant the City of St. Louis, after the adoption of the charter, would have a charter without its bestowing any powers, rights or privileges; a legislative assembly without power to pass laws or ordinances; a city, with hundreds of thousands of inhabitants, without any municipal government, charged with the payment of the park tax, and the debt, both of the city and county of St. Louis, without authority to impose taxes to raise revenue to pay either the one or the other. We cannot give our assent to an interpretation of the sections of the Constitution we have adverted to, which would bring such results, nor do we believe them to be susceptible of such meaning.

The defendant, conceding for the argument, that under the charter the city of St. Louis had the right to exercise the taxing power, insists that the exercise of it in the passage of the ordinance in question is not warranted by the Constitution. In support of this view, he contends that the State could not exercise such power, and that, therefore, the city could not, and cites authorities to show that the laws imposing license tax on lawyers have been adjudged to be unconstitutional and void. However this may have been elsewhere decided,

the power of the State to tax all professions has remained unquestioned in this State since the case of State v. Simmons, 12 Mo. 271, the principle of which was followed and approved in the case of City of St. Louis v. Laughlin, 49 Mo. 559. We are not disposed to reopen the question, especially as we think it has been settled, not only in accordance with reason, but with the weight of authority.

It is also argued that section 26 of the charter, under the head of Legislative Proceedings, which declares "that the mayor and assembly shall have power to license, tax and regulate lawyers," is inconsistent with Sec. 1. Art. 10, Sec. 10, Art. 10, and Sec. 25, Art. 9 of the Constitution, and therefore void.

Section 1, supra, declares that "the taxing power may be exercised by the general assembly for state purposes, and by county and other municipal corporations, under authority granted to them by the general assembly, for county and other corporate purposes; and sec. 10 declares that "the general assembly may by general laws, vest in the corporate authorities of any county, city or town, the power to assess and collect taxes for county, town and municipal purposes." It is contended that inasmuch as under these sections, municipal corporations can only exercise the power of taxation when such power is conferred by the legislature by general law, and that inasmuch as no such general law giving the power to St. Louis had been passed, that section 26, supra, of the charter is void.

This argument, we think, is unsound in ignoring the fact that the Constitution containing the provisions on which the argument is based, also contains a provision which expresslly designates a particular corporation, viz.: the City of St.Louis; and declares that it may adopt a charter, an act of incorporation for its own government. We perceive no inconsistency between the section which authorizes St. Louis to make its own charter, and by necessary implication also authorizes it by virtue of such charter, to exercise the taxing power for municipal purposes, and sections one and ten, above cited. A constitutional provision delegating to a particular municipality, either expressly or by necessary implication, such power, may well harmonize with another provision, which requires the power to be delegated to all other municipalities in the State, by general law. If the power to tax, as we have attempted to show, has been conferred on the City of St. Louis by the Constitution, no additional force could be given to it by an enactment of a general law giving to it a power it already possessed.

In view of the clear and lucid argument in the opinion of Judge Bakewell, of the St. Louis Court of Appeals, touching the points we have been considering, we deem it unnecessary to add anything further on this branch of the case.

It is also argued, that the ordinance in question is in violation of sec. 3, art. 10, of the Constitution, which declares that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax." It is iu isted that the ordinance is obnoxious to the

above requirement in this, that it demands of every lawyer the same amount of tax, without reference either to the income, emoluments or profits of his practice as such. That the latter might be a more just method of exercising the power may not be denied, but such an argument addresses itself more properly to the municipal assembly than to us, and, we think, it is fully answered in the case of the Union Am. Ex. Co. v. City of St. Joseph, 66 Mo. 675, and Glasgow v. Rouse, 43 Mo. 479, where it was held that when municipalities,having the power to tax callings, trades and professions, tax alike all persons engaged in the same business, that such taxation was equal and uniform.

While concurring in the views expressed under the first, second and third heads of the opinion of the St. Louis Court of Appeals, we cannot give our assent to what is said under the fourth head thereof, which led to a reversal of the judgment of the Court of Criminal Correction.

The right of the municipal assembly to pass an ordinance imposing the license-tax being conceeded, we think it follows that under sec. 6, art. 5 of the charter, which provides that "the mayor and assembly shall have power * by ordinance, to impose, collect and enforce fines, forfeitures and penalties for the breach of any city ordinance; to pass all such ordinances not inconsistent with the provisions of the charter or laws of the state, * and to enforce the same by fines and penalties, not exceeding one thousand dollars, * * "that the assembly had the power to pass sec. 4 of the ordinance, which subjects every lawyer who prosecutes his profession, without first taking out a license, to a fine of not less than $25, nor more than $50.

Such ordinances have been uniformly upheld when brought to the attention of this court. In the case of the City of St. Louis v. Laughlin, 49 Mo. 459, the defendant was prosecuted for violation of an ordinance in practicing without a license. The validity of the ordinance was drawn in question on the sole ground that the legislature had not, in the charter, delegated to the city of St. Louis the power to pass such an ordinance, it being conceeded that if such power had been delegated, the city could have passed it. In the case of City of St. Louis v. Manuf. Sav. Bank, 49 Mo. 574, defendant was proceeded against for carrying on the business of banking, without a license as required by an ordinance of the city. A fine was imposed, and, on appeal, the judgment was affirmed. In the case of City of St. Louis v. Life Association, 53 Mo. 466, the defendant was fined for prosecuting its business without a license, and the judgment of the criminal court was sustained. The power of municipal corporations to recover fines and penalties from persons conducting business or pursuing avocations without license, when such license is required by ordinance, has been upheld in Ohio in case of Cincinnati v. Buckingham, 10 Ohio, 257; in Massachusetts, in case of Vandiver's petition, 6. Pick. 187; in Alabama, in Shelton v. Mobile, 30 Ala. 540; in Michigan, in Chilvers v. People, 11 Mich. 43; in New York, in Brooklyn v. Clews, Hill & D. Rep. Taylor's Sup. 231.

This is not a proceeding on the part of the city to collect the amount of the license required by the ordinance, but is instituted to recover a fine for a breach of it committed by defendant in practicing law without such license, and, although he may be subjected to the payment of the fine, he would not thereby be entitled to the license. The mere fact that defendant did not procure the license does not create the liability, but the fact of his practicing as a lawyer without such license. It was his privilege to decline to pay $25, the required sum for the license, and it was only when he continued or entered upon such practice, without such license, that he became liable to a fine. It is therefore the collection of the fine, and not the license-tax which is sought to be enforced in this proceeding. Such a proceeding is maintainable under the authority of City of Carondelet v. Smith, 10 Mo. 438.

The power exercised by the city in passing the ordinance imposing the fine is analogous to that exercised by the legislature, in requiring merchants to be licensed, and subjecting a person pursuing that avocation without license to a fine of not less than fifty dollars for each offense.

The avocation of a merchant is not malum in se, and such enactments, whether made in the exercise of the police power of the State or otherwise, have always been upheld and enforced by this court. Austin v. State, 10 Mo. 591. No question of evil intent arises in such cases: the essence of the offence consists in pursuing the avocation without license when one is required by law. State v. Cox, 32 Mo. 566; State v. Willis, 37 Mo. 192; 33 Mo. 457; 38 Mo. 379; State v. Rucker, 24 Mo. 557; State v. Myers, 63 Mo. 324.

It matters not whether the ordinance assailed was framed as a police regulation or otherwise. The question is one of power, and whether the provision of the charter authorizing the passage of such ordinance was in conflict, either with the Constitution or laws of the State. We think it does not conflict with either. Under the Constitution, the imposition of a license-tax on lawyers has been held (as we have shown) to be a legitimate exercise of the taxing power on the part of the State, and the charter provision does not therefore conflict with it; nor does the mere fact that the general assembly has not exercised such power by passing a general law requiring all lawyers to pay a license-tax, and imposing a fine on every one practicing as such without a license, create a conflict between the charter provisions and the ordinance framed in virtue of it, and any law of the State.

If the general assembly should pass a law declaring that no license should be required of lawyers, by any municipal corporation in this State, then such a conflict would exist between the charter provision and the law, and sec. 29, art. 9 of the Constitution would apply, and the argument of defendant that the charter provision not being in harmony with the law of the State was therefore obnoxious to sec. 29, supra, would have force.

Butler's Appeal, 73 Penn. St. 448, is the only authority to which we have been cited as being

in opposition to the views herein expressed. That case is unlike the one before us. It was therein held that no delegation of power was contained in the charter of Wilkesbarre, authorizing the city to require license of the persons complaining. In the case at bar express authority is given in the charter to the municipal assembly to provide for licensing and taxing lawyers. It was also held in that case, that if the power to require the license had been conferred, the ordinance imposing a fine and imprisonment for the non-payment of the license-fee was invalid, because there was nothing in the act of incorporation "authorizing the imposition of such a sentence without indictment and trial by jury." In the case before us, express authority is given in the charter authorizing the municipal assembly to provide for imposing fines, penalties and forfeitures for breach of ordinances. In Butler's appeal, supra, no power was given in the charter of Wilkesbarre, either to pass the ordinance requiring the license, or an ordinance imposing fines for the breach of ordinances. In the charter of St. Louis, the power is given to do both.

We are of the opinion that the judgment of the Court of Appeals should be reversed, and that of the Court of Criminal Correction affirmed, which is accordingly done with the concurrence of the other judges.

1. RAILROAD COMPANY-NEGLIGENCE-FellowSERVANTS.-A railroad company is not liable to one of its servants for injuries sustained by him through the negligence of another servant, where both servants were employed in the same general undertaking, and where the company has used reasonable care in its selection of servants who are competent, reliable and qualified to render the particular services incident to their position and employment.

2. CASE IN JUDGMENT-DEMURRER.-A demurrer to the plaintiff's petition, in an action for damages for an injury caused by the negligence of a fellow-servant, sustained for insufficient averments.

3. A LOCOMOTIVE fireman is not as a matter of law incompetent to manage and run a locomotive engine.

C. A. Beecher, E. C. Devore, for appellants; J. B. Brown, for appellee.

Howк, C. J., delivered the opinion of the

court:

In this action, the appellee, as plaintiff, sued the appellant, as defendant, in the Jackson Circuit

Court, upon a complaint in four paragraphs. To each of these paragraphs of the complaint, the appellant demurred, upon the ground that it did not state facts sufficient to constitute a cause of action. These demurrers were sustained as to the first and second paragraphs of the complaint; and as the appellee has not complained of these decisions, in this court, we need not further notice these two paragraphs. The appellant's demurrers to the third and fourth paragraphs of the complaint were severally overruled, and to each of these decisions the appellant excepted. The appellant answered, in two paragraphs-the first being a general denial, and the second setting up affirmative matters, by way of defense.

The appellee replied, by a general denial, to the second paragraph of the answer; and on the appellant's application, the venue of the action was changed to the court below.

In this latter court, the issues joined were submitted to a jury for trial; and the appellee having introduced his evidence and rested, the appellant demurred to this evidence, upon the ground that it was not sufficient to maintain the appellee's action. In this demurrer to the evidence the appellee, joined, and thereupon the jury was directed by the court to assess, by their verdict, the appellee's damages, on the condition that the same should stand as the verdict, and judgment be rendered thereon, if the appellant's demurrer to the evidence should be overruled; otherwise, the verdict should be of no effect whatever. Under this direction, the jury returned a verdict for the appellee assessing his damages in the sum of seven thousand dollars. Afterwards the appellant's demurrer to appellee's evidence was overruled by the court, and to this decision the appellant excepted. The appellant's motion for a new trial having been overruled, and its exception saved to this decision, judgment was rendered on the verdict.

In this court, the appellant has assigned as error, the following decisions of the court below:

1. In overruling its demurrer to the third paragraph of the complaint;

2. In overruling its demurrer to the fourth paragraph of the complaint;

3. In overruling its demurrer to appellee's evidence; and

4. In overruling its motion for a new trial.

We will consider and decide the questions, presented and discussed by the appellant's learned attorneys, in their argument of this cause in this court, as they arise under these alleged errors, in the order of their assignment:

1. In the third paragraph of his complaint, the appellee alleged, in substance, that he was a resident citizen of Jackson county, Indiana, and the appellant was a corporation organized under the laws of this state; that on the 22d day of July, 1874, the appellee was an employee and servant of the appellant, in the capacity of a section-hand upon its railroad, and as such it became and was his duty to assist in the repair, and the keeping in repair, of the appellant's railroad track; that on said last named day, one Thomas McDonald, who was a section boss in the appellant's service, and