City of St. Louis v. King

• Decision Date: 15 March 1910
• Parties: CITY OF ST. LOUIS v. KING.
• Court: Missouri Supreme Court

126 S.W. 495

226 Mo. 334

CITY OF ST. LOUIS v. KING.

Supreme Court of Missouri, Division No. 2.

March 15, 1910.

1. MUNICIPAL CORPORATIONS (§ 589) — POLICE POWER — SCOPE.

Although an act sought to be prohibited by city ordinance is vicious and properly within the power of the state Legislature to consider, it is not a proper subject for municipal legislation, unless its charter grants the power to the municipality.

2. MUNICIPAL CORPORATIONS (§ 592) — POLICE POWER — SCOPE.

Rev. St. 1899, § 6258 (Ann. St. 1906, p. 3129), provides that any municipal corporation having authority to pass ordinances regulating matters on which there is a general state law, unless otherwise prescribed or authorized by some special provision of its charter, shall confine its jurisdiction to ordinances in conformity with the state law. Const. art. 9, § 23 (page 271), provides that the charter and amendments thereto of the city of St. Louis shall always be in harmony with and subject to the Constitution and laws of Missouri. Rev. St. 1899, §§ 2176-2178 (page 1396), prohibit obscene and licentious publications, and those of indecent and scandalous character. Held, that Revised Ordinances of the City of St. Louis, § 1447, relating to obscene newspaper advertisements, which goes farther than the legislative enactment, is invalid, in the absence of authority expressly given by charter or indispensably necessary to the powers expressly granted.

Appeal from St. Louis Court of Criminal Correction; Hiram N. Moore, Judge.

Action by the City of St. Louis against Nathaniel K. King for violation of an ordinance. From an order denying motion to quash information, defendant appeals. Reversed.

R. P. & C. B. Williams, Lehmann & Lehmann, and E. M. Grossman, for appellant. L. E. Walther, City Counselor, and B. H. Charles, Asst. City Counselor, for respondent.

GANTT, P. J.

This was an action for the violation of an ordinance of St. Louis, known as Ordinance No. 19,991, section 1447 of the Revised Ordinances of said city, approved April 3, 1900, which provides: "Sec. 1447. Obscene Newspaper Advertisements Prohibited— Any person who shall in the city of St. Louis advertise or cause to be advertised, in any newspaper printed or circulated in said city or who shall print or publish any advertisement or notice in any newspaper printed or circulated as aforesaid, purporting to give information as to the treatment of venereal or private or womb diseases, or impotency, self-abuse, sterility or any disease pertaining to the genital organs, or purporting to give information from whom or where such medical treatment or medicine may be procured in the above mentioned cases or any of them, shall be guilty of a misdemeanor and upon conviction shall be fined not less than fifty nor more than five hundred dollars for each and every offense." Defendant was found guilty in the police court, and appealed to the St. Louis court of criminal correction, in which he filed a motion to quash on the ground that the information did not state any offense under the law or the ordinance; that the ordinance was unconstitutional (but without citing section or article of the Constitution); that it seeks to regulate matters which are not of municipal concern; that it unnecessarily prohibits the advertising of a legitimate and duly licensed business, and is an unconstitutional invasion of personal liberty, and imposes unnecessary restrictions upon the natural rights of physicians duly licensed by the state. This motion was overruled and exceptions saved. The cause was then tried upon an agreed statement of facts, to wit: That defendant was a duly licensed physician and had been practicing his profession a number of years in St. Louis. That the diseases set out in his advertisement are such as are recognized by the medical profession, and their treatment is taught in the medical colleges, and such diseases are commonly treated by the medical profession, and in some cases the patient is cured and in some is only relieved. That the advertisement was put in the Globe Democrat, a daily newspaper published and printed and circulated in said city and throughout the state of Missouri. That the advertisement contained the following words and matter, to wit:

An Extraordinary Medical Announcement.

Free examination and disagnosing of any deep-seated disease of man. * * *

Specific Blood Poison.—

It is well that all men should know the consequences of certain terrible diseases, the consequences if the disease is imperfectly treated. The gravest of these is specific, vital, contracted blood poison, the disease that is first manifested by a stubborn sore, later by a rash on the body, then by the breaking out of the ulcers, swelling of the glands, falling out of the hair and eyebrows. You cannot mistake these symptoms.

If you find yourself in the clutches of Blood Poison don't waste time and money on hotspring baths, specifics, mercury, potash or other mineral mixtures and poisons that will give only temporary relief.

Dr. King's cure for Blood Poison, originated and perfected by him, is absolutely safe, rapid and permanent, and leaves no injurious effects. Under his treatment every external symptom soon disappears, while the blood, the tissues, the nerve fibers, the bones and the whole system are cleansed, strengthened and restored to perfect health and purity.

Nervo — Vital Debility.

Cerebral — When the mental forces are impaired.

Spinal — When the spinal centers are involved and motor power is diminished.

Vital — When the Great Sympathetic Nerve System is affected and the forces that govern the organs of life are reduced by the baneful reflex effects of diseases incident to the organs of the pelvis.

Private Diseases.

Newly contracted and chronic diseases are cured by Dr. King. He relieves all burning and itching and stops inflammation and unnatural weakness in twenty-four hours; he effects cures in seven days.

Upon the validity of section 1447 of the Municipal Code of St. Louis depends the correctness of the judgment of the court of criminal correction, imposing upon him a fine for a violation of said ordinance. On the part of the city it is asserted that the ordinance finds abundant authority in the charter of St. Louis (paragraph 5, § 26, art. 3), wherein power was given to pass ordinances "to license, tax and regulate lawyers, doctors, doctresses. * * *" Scheme and Charter of St. Louis (2 Rev. St. Mo. 1879, p. 1586). It is conceded that this power to license and tax doctors of medicine was nullified by an act of the General Assembly of this state of March 6, 1879 (Laws Mo. 1879, p. 45), now known as section 5260, Rev. St. 1899 (Ann. St. 1906, p. 2752), but it is insisted that the power to regulate doctors was not affected by the said act of the Legislature, and under the grant of authority to regulate it was competent for the municipal assembly to pass this ordinance. Moreover, it is insisted by counsel for the city that authority to enact this ordinance can be found, in the "general welfare clause" of the charter, viz., "to pass all such ordinances, not inconsistent with the provisions of this charter, or the laws of the state, as may be expedient, in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures and enforce the same by fines and penalties not exceeding $500," etc. Paragraph 14, § 26, art. 3, Scheme and Charter of St. Louis 1876. On the other hand, defendant maintains that the only power of attorney, so to speak, the city had to pass this ordinance was this general welfare clause, and that in the ascertainment of the powers of the city certain principles must be accepted, to wit, that municipal corporations possess and can only exercise such powers as are granted in express words or those necessarily incident to or implied by the powers expressly granted. They are creatures of the law, established for special or local purposes, and their corporate acts must not only be authorized by their charters, but their acts must be done by such officials or agents in such manner as their charters direct. Dillon on Municipal Corporations (4th Ed.) p. 145; City of Nevada v. Eddy, 123 Mo. 557, 27 S. W. 471.

It is asserted by counsel for the city that it has the inherent police power to protect public morals, and that this advertisement flagrantly offends against public morals and decency. In the solution of this controversy it is well that we keep in view certain principles which must be regarded as settled in this jurisdiction. In State ex rel. v. Telephone Company, 189 Mo. 83, 88 S. W. 41, it was said by this court in banc in the examination of the corporate powers of Kansas City under its special charter to regulate telephone tolls: "It is not every power that may be essayed to be conferred upon the city by such a charter that it is of the same force and effect as if it were conferred by an act of the General Assembly, because the Constitution does not confer upon the city the right in framing its charter to assume all the powers that the state may exercise within the city limits, but only powers incident to its municipality. Yet the Legislature may, if it sees fit, confer on the city powers not necessary or incident to the city government. There are governmental powers the exercise of which is essential to the happiness and welfare of the people of a particular city, yet which are not of a character essentially appertaining to the city government. Such powers the state may resolve to be exercised by itself or it may...