City of Carthage v. Block

• Decision Date: 06 December 1909
• Parties: CITY OF CARTHAGE, Appellant, v. MOSES BLOCK, Respondent
• Court: Missouri Court of Appeals

123 S.W. 483

139 Mo.App. 386

CITY OF CARTHAGE, Appellant, v. MOSES BLOCK, Respondent

Court of Appeals of Missouri, Springfield

December 6, 1909

Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.

AFFIRMED.

Judgment affirmed.

J. D Harris and Perkins & Blair for appellant.

(1) The city of Carthage, being a city of the third class, has the power under the general welfare clause of its charter to enact the ordinance in question. R. S. 1899, sec. 5834; Lebanon v. Gordon, 99 Mo.App. 277; Green City v Holsinger, 76 Mo.App. 567; St. Louis v Schoenbusch, 95 Mo. 618; St. Louis v. Bentz, 11 Mo. 61; St. Louis v. Cafferata, 24 Mo. 94; Gallatin v. Tarwater, 143 Mo. 40. (2) The ordinance is, under the law, presumed to be valid. All doubts must be resolved in favor of its validity. Sedalia ex rel. v. Smith, 104 S.W. 15; Stafford v. Railway, 110 Wis. 331; Railway v. Carlinville, 103 Ill.App. 251. (3) When the ordinance contains provisions prohibiting several acts, some of which were beyond the power of the city to prohibit, and some of which were within the power of the city to prohibit, the court may eliminate the invalid parts and uphold the valid parts. St. Louis v. Railroad, 89 Mo. 44; Tarkio v. Cook, 120 Mo. 1; State v. Clark, 54 Mo. 17; State v. Bockstruck, 136 Mo. 335.

J. H. Bailey and R. A. Mooneyham for respondent.

(1) Municipal corporations possess and can exercise only such powers as are granted in express words or those necessarily incident to or implied in the powers expressly granted. Knox City v. Thompson, 19 Mo.App. 523; State ex rel. v. Wilder, 200 Mo. 97; Joplin v. Jacobs, 119 Mo.App. 134. (2) The ordinance in question so far as it undertakes to prohibit the drinking of beer, etc., on the streets or in other public places within the City is void because it exceeds the power vested in the city council. State v. Hammond, 40 Minn. 43; Owensboro v. Sparks, 99 Ky. 351. (3) When the municipal authorities have no power to make municipal regulations it is void, although it is reasonable, just and proper in itself and even necessary for the preservation of peace and good order. Taylor v. Dist. of Columbia, 24 App. D. C. 392; Am. Dig. 1905-B, p. 2943, sec. 191. (4) It is the contention of respondent that the courts have always held such ordinances too general and unreasonable, and therefore void. St. Louis v. Fitz, 53 Mo. 582; St. Louis v. Roche, 128 Mo. 541; Ex parte Smith, 135 Mo. 223; St. Louis v. Gloner, 210 Mo. 502; Perry Gastineau v. Commonwealth of Kentucky, 56 S.W. 705; 49 L. R. A. 111; Hechinger v. Mayesville, 57 S.W. 619; 49 L. R. A. 114; In re Ah Jow, 29 F. 181; In re Martin L. Sapp, 113 N.W. 261, 12 L. R. A. 441.

NIXON, P. J. Cox, J., concurs; Gray, J., not sitting.

OPINION

NIXON, P. J.

This case originated in the police court of the city of Carthage, Missouri, on a complaint filed by the city attorney charging the defendant with drinking beer on a public street and sidewalk of said city in violation of ordinance No. 841 of the city of Carthage, which is as follows: (Formal parts omitted).

"An ordinance prohibiting the drinking of intoxicating liquors in stairways, area-ways, streets, avenues, alleys and sidewalks of the city of Carthage.

"Be it ordained by the council of the city of Carthage as follows: --

"Section 1. It shall be unlawful for any person to drink any intoxicating liquors in any quantity in any stairway, area-way, street, avenue or alley or on any sidewalk in the city of Carthage.

"Section 2. Any person violating any of the provisions of the foregoing section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum of not less than one dollar nor more than one hundred dollars.

"Section 3. This ordinance shall be in force and take effect from and after its passage and approval."

At the trial in the police court, the defendant was found guilty as charged, and an appeal was taken to the Jasper Circuit Court. The case was dismissed in the circuit court on account of the ordinance being illegal, the court holding that the appellant city did not have power to enact such an ordinance and that it was therefore void. From this decision, the city appealed to the Kansas City Court of Appeals where the judgment of the trial court was reversed by a majority opinion, ELLISON, J., dissenting. A petition for rehearing was granted and subsequently the cause was certified to this court as provided by law.

We acknowledge our indebtedness to the Kansas City Court of Appeals for their opinions rendered in this case.

The evidence in the case shows,--and the fact is undisputed,--that the defendant violated the ordinance at the times and in the manner charged in the complaint. His counsel say in their statement: "It was his habit for years to go to the saloon next door to his place of business, get a schooner of beer and return to his storebuilding or to the sidewalk in front and there drink the beer." With the fact conceded that the defendant used a public sidewalk in the business part of the city as a place to quench his thirst by drinking an intoxicating beverage, our sole concern is with the question of whether the ordinance subjecting him to a fine for such conduct should be upheld as a police regulation included within the charter powers of the city.

Among the powers granted by the State to cities of the third class--of which the city of Carthage is one-- is the power "to enact ordinances to prohibit and suppress houses of prostitution and other disorderly houses and practices and gambling houses and all kinds of public indecencies." [R. S. 1899, section 5835.] And, in what is called the general welfare clause, section 5834, R. S. 1899, it is provided: "The mayor and council of each city governed by this article shall have the care, management and control of the city and its finances, and shall have power to enact and ordain any and all ordinances not repugnant to the constitution and laws of this State, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be deemed necessary to carry such powers into effect, and to alter, modify or repeal the same."

Is the ordinance in question a necessary or proper police regulation? Is it to be deemed by the courts as "expedient for the good government of the city, the preservation of peace and good order," or should it be denounced as an unwarrantable invasion of the "personal liberty" of the citizen?

Should we find that the conduct interdicted was a proper subject for police regulation, we think there can be no reasonable question of the power of the city to enact the ordinance under the grant embodied in the provisions of the general welfare clause, though the subject of this precise regulation is not specifically mentioned in the statute. In the case of City v. Schoenbusch, 95 Mo. 618, 8 S.W. 791, the Supreme Court said: "General welfare clauses are not useless appendages to the charter powers of municipal corporations. They are designed to confer other powers than those specifically named. The difficulty in making specific enumeration of all such powers as may be properly delegated to municipal corporations renders it necessary to confer such powers in general terms. Ordinances relating to the comfort, health, good order, convenience and general welfare of the inhabitants are regarded as the exercise of police regulations."

To the same effect was the decision of the Kansas City Court of Appeals in the case of Green City v. Holsinger, 76 Mo.App. 567, where the defendant was convicted under an ordinance prescribing a fine against any one who should be "found intoxicated on the streets." The court, speaking through Judge ELLISON, said: "It is true that there is not found in the charter for towns and villages any specially enumerated power to prohibit drunkenness. But we think sufficient authority for the support of the ordinance is found in the general police power possessed by such villages under section 1672, Revised Statutes 1889. That drunkenness in the public places of a municipality is a matter of police regulation there can be no doubt. The mere fact that power to suppress drunkenness is specifically stated in some charters, does not signify that it is not embraced in the general provision as to police power contained in charters which make no specific mention of such offense."

The doctrine of these cases was applied by the St. Louis Court of Appeals in the case of the city of Lebanon v Gordon, 99 Mo.App. 277, 73 S.W. 222. "There can be no doubt of the authority of the mayor and...