Circuit Judge (concurring).
I concur fully in the conclusion reached by Judge Stone that “it was beyond the power of this city, under the state law governing its powers, to enact an ordinance of this character applicable to the kind of business being done by appellant,” and that on this ground the decree below must be reversed and an injunction ordered.
Since the decision of this court in the Harrisonville Case, the Missouri courts of last resort have resolved all the issues raised in this and eognate litigation. Ozark v. Hammond (Mo. Sup.) 49 S.W.(2d) 129; City of Lebanon v. Joslyn (Mo. Sup.) 58 S.W.(2d) 289; City of Aurora v. Stafford (Mo. App.) 51 S.W.(2d) 547; Nafziger Baking Co. v. City of Salisbury (Mo. Sup.) 48 S.W.(2d) 563, 564. In order that the matter may be set finally at rest in harmony with the holdings of the Missouri courts, I think it desirable that the first ground of attack upon this ordinance, to wit, that it violates the Fourteenth Amendment to the Federal Constitution should also be considered. Judge Stone has referred to my dissenting opinion in Campbell Baking Co. v. City of Harrisonville, Mo. (C. C. A.) 50 F.(2d) 670. My views are therein fully set-forth, and I have no disposition to restate them here.
The Supreme Court of Missouri in bane in Nafziger Baking Co. v. City of Salisbury, supra, held''a similar ordinance void because it deprived the baking company of the equal protection of the law in violation of the Fourteenth amendment to the Constitution of the United States. In the opinion it is said: “Such ordinances, being discriminatory and unjust, have often been condemned as being violative of the provisions of the Constitution above referred to.” (Citing a long list of eases from many jurisdictions, including the Supreme Court of the United States.)
To the same effect, upon ordinances substantially identical, are Hair v. City of Humboldt, 133 Kan. 67, 299 P. 268, and Grantham v. City of Chickasha, 156 Okl. 56, 9 P.(2d) 747. It may be'added that the Harrisonville ordinance has been repealed out of deference to the holding in Nafziger Baking Company v. City of Salisbury, supra. I think the decree in the instant ease should be reversed upon this additional ground.