City of St. Louis v. St. Louis Theater Co.

• Decision Date: 22 February 1907
• Parties: CITY OF ST. LOUIS v. ST. LOUIS THEATER CO.
• Court: Missouri Supreme Court

100 S.W. 627

202 Mo. 690

CITY OF ST. LOUIS v. ST. LOUIS THEATER CO.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. MUNICIPAL CORPORATIONS — ORDINANCES — VIOLATION—COMPLAINT.

A city ordinance provided that whoever should set up or maintain any sign, which should extend over any sidewalk more than 18 inches from the building line or inside the sidewalk, should be deemed guilty of a misdemeanor. Held, that a complaint charging that defendant did maintain, set up, and cause to be set up a certain sign and other fixture, to wit, an illuminated sign, etc., stated but a single offense, and was not therefore objectionable as multifarious.

2. SAME — REASONABLENESS — BURDEN OF PROOF.

Where, in a prosecution for violating a municipal ordinance, defendant contends that the ordinance is unreasonable on its face, the burden is on defendant to show the condition from which the unreasonableness appears.

3. EVIDENCE—JUDICIAL NOTICE.

In an action for breach of a city ordinance prohibiting the maintenance of signs extending more than 18 inches from the building to which they are attached into the street, the court cannot take judicial notice of the conditions of the place or of its public necessities in determining the reasonableness of the ordinance.

4. MUNICIPAL CORPORATIONS—ORDINANCES— SIGNS—REASONABLENESS.

Where, in a proceeding for breach of the city ordinance prohibiting signs extending more than 18 inches into the street, there was no evidence that the ordinance was unreasonable, except that by means of the sign people were lighted into and out of defendant's place of business, it not appearing that there was a failure on the part of the city in that regard, the ordinance was not unreasonable.

5. SAME — STREETS — RIGHTS OF ABUTTING OWNERS.

Where, at the time defendant erected an illuminated sign over the entrance to its theater which extended more than 18 inches into the street and over the sidewalk, there was no ordinance prohibiting such a structure, defendant does not thereby acquire a vested right to maintain the same which would prohibit the city in the exercise of its police power from passing a subsequent ordinance prohibiting the erection and maintenance of such sign.

Error to St. Louis Court of Criminal Correction; E. M. Hughes, Judge.

Action by the city of St. Louis against the St. Louis Theater Company. From a judgment for defendant, plaintiff brings error. Reversed and remanded.

Charles W. Bates and Benjamin H. Charles; for plaintiff in error. Louis A. Steber, for defendant in error.

GRAVES, J.

This cause originated in the First district police court of the city of St. Louis by statement in language, as follows: "State of Missouri, City of St. Louis—ss.: City of St. Louis, Missouri, May 28, A. D. 1902. St. Louis Theater Company, a corporation, to the City of St. Louis, Dr. To five hundred dollars, for the violation of an ordinance of said city, entitled `An ordinance in revision of the General Ordinances of the city of St. Louis,' being Ordinance Number 19,991, section 1157, as amended by Ordinance No. 20,529, approved December 1st, 1901, and section 1184, approved April 3d, 1900, in this, to wit: In the city of St. Louis and state of Missouri, on the 5th day of May, 1902, and on divers other days and times prior thereto, the said St. Louis Theater Company did then and there, at and in front of premises at 514 Market street, maintain, set up and cause to be set up a certain sign, sign box and other fixture, to wit, an illuminated sign extending over and upon a sidewalk more than eighteen inches from the building line and inside of said sidewalk. Contrary to the ordinance in such case made and provided. On information of chief of police. P. P. Taylor, City Attorney of the City of St. Louis." Change of venue was granted to the defendant to the police court for the district south of the Arsenal street. Later, and after the change of venue, and on September 30, 1902, defendant filed its demurrer. No action seems to have been taken upon the demurrer. and, on November 8th following, an answer was filed covering practically the grounds of demurrer. These pleadings are lengthy, and such parts as may be necessary will be considered in the opinion. Trial was had in the police court, and defendant discharged. Appeal was taken by the city to the St. Louis court of criminal correction, where trial was had March 5, 1903, before Hon. E. M. Hughes, then a circuit judge of judicial circuit No. 11, as special judge, which likewise resulted in the discharge of the defendant. Motion for new trial was filed and overruled upon the day the decision of the trial court was rendered, to wit, May 25, 1903. Bill of exceptions was filed within the time allowed by the court. Writ of error was sued out here within the year allowed by statute, and the record or return filed here within the year. No notice of the writ appears in the files, but no question is made by motion to dismiss or otherwise. The evidence, which is short, will be detailed upon points wherein it may be of value.

1. Defendant first contends that the complaint is multifarious and does not individuate the offense, in that it charges that defendant did "maintain," set up, and cause to be set up a certain sign, and other fixture, to wit, an illuminated sign, etc. The ordinance in question, or the part thereof in question, is as follows: "Whoever shall, in this city, set up or cause to be set up, or who shall hereafter in this city maintain any sign, sign box, illuminated sign, lettered lamp or other fixture, which shall extend over or upon any sidewalk more than eighteen inches from the building line or inside of said sidewalk * * * shall be deemed guilty of a misdemeanor." This contention is not well founded. Even if this proceeding were a strictly criminal proceeding, which it is not, yet it would not be well founded under repeated rulings of this court. The ordinance makes the commission of certain acts named in the disjunctive a misdemeanor. One or all or these several acts may be charged in the one count, but must be charged in the conjunctive, as they are charged here. State v. Murphy et al., 47 Mo. 274; State v. Bregard, 76 Mo. 322; State v. Pittman, 76 Mo. 56; State v. Flint, 62 Mo., loc. cit. 399; State v. Fitzsimmons, 30 Mo. 236; State v. Nations, 75 Mo. 53; State v. Harroun (Mo. Sup.) 98 S. W. 467. In State v. Murphy et al., 47 Mo., loc. cit. 275, Bliss, J., in discussing this question, said: "In regard to the second objection the rule is that no more than one offense can be charged in one count, but there are exceptions. When a statute in one clause forbids several things, or creates several offenses in the alternative, which are not repugnant in their nature or penalty, the clause is treated in pleadings as though it created but one offense; and they may all be united conjunctively in one count, and the count is sustained by proof of one of the offenses charged." So far as we are advised, in misdemeanor cases, the doctrine above...