Ryan v. City of Warrensburg

• Citation: 117 S.W.2d 303,342 Mo. 761
• Decision Date: 26 May 1938
• Docket Number: 35804
• Parties: John I. Ryan, Appellant, v. City of Warrensburg, a Municipal Corporation, J. R. Rothwell, J. R. Garrison, Francis Berkey, L. B. Johnson, Harry W. Davis, J. S. Kenney, Jack Werling, Joe Chambers, Harry Iseminger
• Court: United States State Supreme Court of Missouri

117 S.W.2d 303

342 Mo. 761

John I. Ryan, Appellant, v. City of Warrensburg, a Municipal Corporation, J. R. Rothwell, J. R. Garrison, Francis Berkey, L. B. Johnson, Harry W. Davis, J. S. Kenney, Jack Werling, Joe Chambers, Harry Iseminger

No. 35804

Supreme Court of Missouri

May 26, 1938

Appeal from Johnson Circuit Court; Hon. Leslie A. Bruce Judge;

Affirmed.

Richard C. Southall for appellant.

(1) Appellant, under the facts in suit, is entitled to equitable relief. Door Co. v. Fuelle, 215 Mo. 421, 114 S.W 997; Clarkson v. Laiblan, 178 Mo.App. 708, 161 S.W 663; Cape Girardeau v. Smith, 61 S.W.2d 231; State ex rel. v. Hall, 297 Mo. 594, 250 S.W. 65; Merchants Exchange v. Knott, 212 Mo. 616, 111 S.W. 565; Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 443; Boland v. Ross, 120 Mo. 208, 25 S.W. 524; Phelps v. Scott, 30 S.W.2d 75; McDaniel v. Lee, 37 Mo. 204; Waddle v. Frazier, 245 Mo. 391, 151 S.W. 87; Real Estate Co. v. Collonious, 63 Mo. 290; Woolum v. Tarpley, 196 S.W. 1127; State ex rel. v. Mulloy, 62 S.W.2d 731; Park Trans. Co. v. Highway Comm., 60 S.W.2d 389; Dennig v. Graham, 59 S.W.2d 702; Sec. 800, R. S. 1929; James v. Bailey, 30 S.W.2d 126. (2) Respondents are estopped in equity to deny appellant the right to do that for which respondent city issued him a license. Union Depot Co. v. St. Louis, 76 Mo. 393; Peterson v. Kansas City, 23 S.W.2d 1048; Montevallo v. School District, 268 Mo. 217, 186 S.W. 1078; Hannibal & St. J. Ry. v. Marion County, 36 Mo. 294; City of Mountain View v. Tel. Exchange, 294 Mo. 623, 243 S.W. 153. (3) The actions of respondents constitute actionable libel. Sec. 4366, R. S. 1929; Seested v. Post Pub. Co., 326 Mo. 559, 31 S.W.2d 1052; Cook v. Globe Ptg. Co., 227 Mo. 471, 127 S.W. 332; Sternes v. St. J. H. & P. Co., 22 S.W.2d 73; affirmed 331 Mo. 44; Brown v. Publishers, 213 Mo. 655, 112 S.W. 474; Wolf v. Harris, 267 Mo. 405, 184 S.W. 1139; Cook v. Pulitzer Pub. Co., 241 Mo. 326, 145 S.W. 480; Carpenter v. Hamilton, 185 Mo. 603, 84 S.W. 863. (4) Actions of respondents and the ordinance under which they claim authority, as applied to appellant, are not authorized by law. Secs. 7259, 7260, 7261, R. S. 1929; State ex rel v. McKelvey, 301 Mo. 1, 256 S.W. 475; St. Louis v. Transfer Co., 256 Mo. 476; Rhodes v. Moll Groc. Co., 95 S.W.2d 837; Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 634; Moler v. Whisman, 243 Mo. 571, 147 S.W. 986; Black's Dictionary (2 Ed.), p. 836. (5) Actions of respondents are not authorized by the inherent police power. 12 C. J., sec. 412, pp. 904, 921; State ex rel. v. McKelvey, 301 Mo. 1, 256 S.W. 475; Gunning v. St. Louis, 235 Mo. 200, 137 S.W. 961; St. Louis v. Dreisoner, 243 Mo. 217, 147 S.W. 999; Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 634; Nigro v. Kansas City, 27 S.W.2d 1030; State ex rel. v. Schwartz, 82 S.W.2d 63. (6) The actions of respondents violate appellant's rights guaranteed to him by the Constitutions of the United States and the State of Missouri 14th Amend., Sec. 1, U.S. Const., Art. II, Secs. 21, 30, Mo. Const.; Ives v. Bailey, 319 Mo. 474, 5 S.W.2d 50; Ex parte Davidson, 321 Mo. 370, 13 S.W.2d 40; Davidson v. Lill, 35 S.W.2d 944; Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 634; Union Cemetery Assn. v. Kansas City, 252 Mo. 466, 161 S.W. 261; Kays v. Versailles, 22 S.W.2d 184; St. Joseph v. Georgetown Lodge, 11 S.W.2d 1082; St. Louis v. Atlantic Quarry, 244 Mo. 479, 148 S.W. 948; 43 C. J., 252; State ex rel. v. Christopher, 298 S.W. 721; St. Louis v. Hill, 116 Mo. 527, 22 S.W. 861. (7) The ordinance in suit, as applied to appellant, is unreasonable. In re Kansas City Ordinance No. 39946, 298 Mo. 569, 252 S.W. 404; Stegmann v. Weeke, 279 Mo. 131, 214 S.W. 137; Davidson v. Lill, 35 S.W.2d 944; City of Salem ex rel. v. Young, 142 Mo.App. 160, 125 S.W. 857; City of Monett v. Campbell, 204 S.W. 32; City of Rockville v. Merchant, 60 Mo.App. 365; City of Carthage v. Block, 139 Mo.App. 386, 123 S.W. 483; St. Louis v. Evraiff, 301 Mo. 231, 256 S.W. 489; State ex rel. v. Davis, 302 Mo. 307, 259 S.W. 80.

J. R. Garrison, G. A. Stultz and J. R. Rothwell for respondents.

By Section 7259, of the Enabling Act of 1925, the Legislature empowered cities, towns, and villages to regulate and restrict the use of buildings, structures, and land for trade, industry, residence, or other purposes. Sec. 7259, R. S. 1929. The city council of the respondent, city, had power and authority to divide the city into districts of such number, shape, and area as it deemed best suited, in enacting the ordinance complained of, and in each district regulate and restrict the use of buildings, structures, or land for trade, industry, residence, and other puposes. Sec. 7265, R. S. 1929. Complying with the Enabling Act, the city council of respondent, city, enacted Chapter XIII, the revised zoning ordinance complained of. The wisdom, or expediency of enacting Chapter XIII, establishing business and manufacturing districts, and a comprehensive residence district, and in Section 431, of the ordinance, excluding from the residence district so established, any kind or character of business or manufacturing, except rooming and boarding houses, was for the city council to determine in the exercise of its legislative judgment. State ex rel. Cadillac Co. v. Christopher, 317 Mo. 1179; Zahn v. Board of Public Works, 234 P. 388; Fourcade v. City and County of San Francisco, 288 P. 934. In enacting Chapter XIII, it was not necessary to recite the fact that the ordinance was referable to the police power. State v. Cantrell, 179 Mo. 245; Little River Drain. Dist. v. Railroad Co., 236 Mo. 94; 43 C. J. 562; Young v. St. Louis, 43 Mo. 492; Kiley v. Forsee, 57 Mo. 390. It is contended by appellant that the operation of his barber shop at 206 South Washington Street, in the zoned residence district, will not cause any of the things the Enabling Act and the ordinance were designed to prevent, but if appellant is allowed and permitted to maintain and operate his business of barbering in his residence, other business more or less objectionable will follow, and the benefit of the ordinance to the public will be destroyed. State ex rel. Cadillac Co. v. Christopher, 317 Mo. 1179; Spector v. Building Inspector of Milton, 250 Mass. 63. Appellant held his property subject at all times to the valid exercise of the police power of the city, and the fact that he procured a merchant's license after his arrest, gave him no additional vested right. State ex rel. Cadillac Co. v. Christopher, 317 Mo. 1179; Spector v. Building Inspector of Milton, 145 N.E. 265. The ordinance in question rests upon a rational basis of classification and applies alike to all persons residing in the zoned residential district of the city, and because in enforcing the ordinance, appellant may suffer hardship, does not render the ordinance void as to him. The private interest is always subordinate to the public good. The ordinance complamed of does not deprive appellant of any property, or property right, nor does it deny him the equal protection of the law. It merely restricts appellant, like all others in the zoned residence district, to the use of his property for residence purposes. State ex rel. Cadillac Co. v. Christopher, 317 Mo. 1179; Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 640; State ex rel. v. Harper, 182 Wis. 153; Miller v. Board of Public Works, 195 Cal. 478.

Hyde, C. Ferguson, C., absent; Bradley, C., concurs.

OPINION

HYDE

This is an action in equity seeking to enjoin the enforcement of an ordinance of the city of Warrensburg on the ground that it violates constitutional provisions, and also seeking damages in the sum of $ 10,000. The basis of damages was the effects of the efforts of the city officers to enforce the ordinance and an alleged libel of plaintiff. Defendants' answer admitted plaintiff's allegations of fact, claimed that the ordinance was valid, and stated that the city intended to enforce it. No evidence was offered and the case was decided upon motions for judgment on the pleadings filed by all parties. The court found for defendants and entered a decree upholding the ordinance and dismissing plaintiff's bill. Plaintiff has appealed from this decree.

Plaintiff's petition was as follows:

"I. Comes now the plaintiff and states to this honorable court that he is a citizen and resident of the City of Warrensburg County of Johnson, and State of Missouri, and that he is the owner of certain real property in said city, described as 206 South Washington Street, which said property is occupied by plaintiff as his place of residence; that in connection with his residence at said location he operates a barber shop wherein for a consideration he renders the usual services usually rendered in a barber shop; that he holds a license from said city of Warrensburg to so engage in said business at said location.

"II. Plaintiff further states that that part of the city where he lives and wherein his said barber shop is operated, in connection with his residence, as aforesaid, is sparcely settled, that there are only three residences in said block and that he has no next door neighbors and that no complaint has been made on the part of his nearest neighbors as to the operation of a barber shop in connection with his residence as aforesaid. Plaintiff says that the said city of Warrensburg is a city of the third class, duly incorporated as such by virtue of the laws of the State of Missouri and empowered with certain powers as such; that the defendant J R. Rothwell is the duly elected and acting mayor of said city; that the defendant J. R. Garrison is the duly elected and acting city attorney; that the defendant Francis Berkey is the duly elected and acting city marshall; that the defendants L. B. Johnson, Harry W. Davis, J. S. Kenney, Jack...