
    The City of St. Charles, Appellant, v. Fred Elsner, Respondent.
    St. Louis Court of Appeals,
    February 15, 1898.
    Jurisdiction, Appellate: constitutional question. In a prosecution for violation of a city ordinance prohibiting the sale of coal in larger quantities than fifteen bushels, without having it weighed by the city weigher and obtaining a certificate therefor, a defense that the ordinance was void in discriminating between buyers of fifteen bushels and less, involves a construction of section 3, article 10, State Constitution, hence not within the appellate jurisdiction of this court.
    
      Appeal from the St. Charles Circuit Court. — Hon. E. M. Hughes, Judge.
   Teansfeebed to supbeme couet.

Bond, J.

The defendant was prosecuted in the police court of the city of St. Charles for violating a city ordinance inhibiting the selling of coal in larger quantities than fifteen bushels without having it weighed by the city weigher and obtaining a certificate thereof. He was convicted and appealed to the circuit court, where he was discharged, and the city appealed to this court.

The facts show a violation of the terms of the oi’dinance in question. The defenses urged below and in this court are, first, that the ordinance in question is shown by the evidence to be a l’evenue ordinance in the guise of one for regulating the weighing and measuring of commodities sold in the city, and hence void; secondly, that it is void for discriminating between buyers of fifteen bushels and less. The latter defense involves a construction of the provisions of section 3, article 10, of the State Constitution. St. Louis v. Spiegel, 90 Mo. 587. It was urged and passed upon in the circuit court and is insisted upon on this appeal. The case is therefore not within the appellate jurisdiction of this court (Const., art. 6, sec. 12), and must be transferred to the supreme court in accordance with section 3300 of the Revised Statutes.

It is so ordered.

All concur.  