Ex parte Davison

Citation13 S.W.2d 40,321 Mo. 370
Decision Date24 November 1928
Docket Number29438
PartiesEx Parte Roger Davison, Petitioner
CourtMissouri Supreme Court

Motion for Rehearing Overruled December 31, 1928.

Petitioner discharged.

Wilder Lucas for petitioner.

(1) When this State or a subdivision thereof, in the exercise of its police powers, enacts laws or ordinances regulating the use of private property or the enjoyment thereof, the exercise of that power must be reasonable and not arbitrary failing which such laws or ordinances conflict both with Secs. 4 and 30, of Art. 2, Missouri Constitution, and with the Fourteenth Amendment of the Constitution of the United States, as depriving citizens of property without due process of law. Dobbins v. Los Angeles, 195 U.S. 223; Penn. Coal Co. v. Mahon, 260 U.S. 393; Weisburg v. Boatmen's Bank, 280 Mo. 199; Carthage v Block, 139 Mo.App. 387. (2) The courts have supervisory power to examine into the reasonableness of such laws. Carthage v. Block, 139 Mo.App. 387; Baker v Hasler, 218 Mo.App. 1. (3) Courts have greater power to inquire into the reasonableness of municipal ordinances than of state laws. Carthage v. Block, supra. (4) Quarrying, mining and oil drilling and similar occupations are limited to the land where the respective deposits are found and when the Government, in the exercise of its police power, attempts to regulate same, then, in view of the peculiar properties of these occupations, this power must be exercised with much greater care than when regulating other occupations, such as dairying, slaughtering or occupations which are not necessarily dependent upon a certain locality. Hadacheck v. Sebastian, 239 U.S. 394; Penn. Coal Co. v. Mahon, 260 U.S. 393; Village of Terrace Park v. Errett, 12 F.2d 240. (5) Laws and ordinances which unconditionally prohibit within certain areas or districts the opening or operating of stone quarries, gravel pits, mines, oil wells or other occupations which are primarily engaged in extracting from the land valuable deposits, and are, therefore, necessarily affixed to and dependent upon the particular locality where the deposits are found, provided they are not nuisances per se, are unconstitutional and void, as being an unreasonable exercise of the police power and in direct conflict with the Fourteenth Amendment of the Constitution of the United States as depriving citizens of property without due process of law, and, therefore, also in conflict with Secs. 4 and 30, Art. 2, Missouri Constitution. In re Kelso, 147 Cal. 609; Penn. Coal Co. v. Mahon, 260 U.S. 393; Village of Terrace Park v. Errett, 12 F.2d 240, certiorari denied, 273 U.S. 710; Bartch v. Ragonetti, 123 Misc. 903; People v. Linabury, 209 N.Y.S. 126; Stone v. Kendall, 268 S.W. 759; St. Louis v. Atlantic Quarry Co., 244 Mo. 479. (6) A quarry is not a nuisance per se and blasting is not a necessary part of its operation. St. Louis v. Atlantic Quarry Co., 244 Mo. 479; Warren v. Cavanaugh, 33 Mo.App. 102.

Julius T. Muench, Oliver Senti and Richard S. Bull for respondent.

(1) The ordinance here attacked as unconstitutional is a prohibition against the opening of stone quarries within a distance of three hundredfeet of an inhabited building or building used as a place of public assemblage. It is distinguishable from city ordinances which prohibit the operation of quarries within large designated areas of cities having no special regard to the character of the locality, and also those passed without authority of statute or charter. Sec. 1665, Revised Code of St. Louis 1926; Village of Terrace Park v. Errett, 12 F.2d 240; In re Kelso, 147 Cal. 609; St. Louis v. Atlantic Quarry Co., 244 Mo. 479. (2) The power to define what shall be or may be a nuisance, or what shall be or may be detrimental to the public welfare, is broader even than the general authority to abate. Kansas City v. McAleer, 31 Mo.App. 433. (3) An ordinance prohibiting the establishment of objectionable businesses and activities within certain limits or populous portions of a city is within the police power of the city. Reinman v. Little Rock, 237 U.S. 171; Hadacheck v. Sebastian, 239 U.S. 394; Cline v. Kirkside, 12 Ohio C. D. 517; Kansas City v. McAleer, 31 Mo.App. 433. (4) The test of the reasonableness of a validly enacted police measure, is not the extent to which an individual may be deprived of some propertyright, but the relation of such measure to the health, safety and comfort of the community. Occupations, activities and uses of property which are not nuisances per se may become serious annoyances and the subject of legislative prohibition by reason of their locality and surroundings. Village of Euclid v. Ambler, 272 U.S. 379; State ex rel. Cadillac Co. v. Christopher, 317 Mo. 1179; Powell v. Brick & Tile Co., 104 Mo.App. 713; State ex rel. v. Board of Health, 16 Mo.App. 8; Ex parte Smith, 231 Mo. 111. (5) It is competent for the municipality to declare that under particular circumstances and in particular localities, a specified business or activity, not a nuisance per se, is detrimental and objectionable; and this having been done, the courts will not substitute their judgment for that of the legislative body. The presumption is in favor of the city's having reasonably and legitimately exercised its discretion and power, and its determination of the necessity and expediency of its ordinances should not be disturbed without sound reason. 3 McQuillin, Mun. Corps. (2 Ed.) secs. 957-958; St. Louis v. Polar Wave Co., 296 S.W. 993; Morse v. West Port, 110 Mo. 502; St. Louis v. Weber, 44 Mo. 547.

Gentry, J. All concur, except Ragland, J., who dissents.

OPINION
GENTRY

The petitioner, Roger Davison, has made application to this court for a writ of habeas corpus, alleging that he is unlawfully deprived of his liberty by Anton Schuler Sheriff of the City of St. Louis. By agreement of counsel, service of the writ was waived, as was also the body of the petitioner, and the sheriff promptly made return. There is no dispute about the facts: petitioner was arrested by one of the police officers of the city of St. Louis and an information filed against him in the Police Court No. 1 of that city, charging him with the violation of Sections 1665 and 1667 of Ordinance No. 36614 of said city. Petitioner was put upon trial in said police court, found guilty and fined. In due time petitioner appealed to the St. Louis Court of Criminal Correction, where he was again found guilty, his fine being assessed at one hundred dollars. Failing to pay such fine, petitioner (defendant therein) was committed to jail, which jail is under the control of the sheriff of said city.

Said sections of the ordinance are as follows:

"Sec. 1665. Nostone quarry shall hereafter be opened, or brick kiln located or slaughter house, glue factory, vitriol factory, soap factory, candle factory, tannery, rendering factory, or garbage works established on any lot of ground or in any building within a distance of three hundred feet of any building, built and inhabited, or any building used as a place of public assemblage before the opening, locating, or establishing of any of the classes of business above mentioned.

"Sec. 1667. Any person, firm, or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than twenty-five nor more than five hundred dollars. Each day such violation exists is hereby made a separate offense."

The information charges that, "In the city of St. Louis and State of Missouri, on the 29th day of June, 1928, the said Roger Davison did then and there open and operate a stone quarry within a distance of 300 feet of an inhabited building, to-wit, 'city blocks 5094-5095, located between Drury Lane and Wellington Court, Manhattan and Leamington Boulevards, within the limits of the city of St. Louis.'"

It is claimed by counselfor petitioner that said sections of the ordinance are in conflict with both Sections 4 and 30 of Article II of the Constitution of Missouri, and also with the Fourteenth Amendment of the Constitution of the United States. On the other hand, counsel for the sheriff, who also represent the city of St. Louis, take the position that the above sections of the ordinance are not in violation of any constitutional provision, but that the same constitute a reasonable exercise of the police power of the city. The well prepared briefs of counsel on both sides have made our labors lighter as the questions for decision are specifically pointed out.

I. In this day of greatly increased population of cities and towns, the legislative body of such municipality has the power to make necessary and reasonable regulations regarding the use of the property therein. Often it has been held that such regulation does not deprive the citizen of the use of his property, but simply prohibits him from the use thereof for purposes deemed objectionable. Sic utere tuo, ut alienum non loedas. Citations in support of this proposition are unnecessary, it being a fundamental rule of law.

II. It is true that the necessity, the reasonableness and the wisdom of an ordinance are matters to be decided by the legislative body of a municipality, yet courts have supervisory power to examine the ordinance and pass on such questions. [City of Carthage v. Block, 139 Mo.App. l. c. 391; Baker v. Hasler, 218 Mo.App. l. c. 7; St. Louis v. St. Louis Theatre Co., 202 Mo. l. c. 699; Cooley on Const. Lim. (7 Ed.) 280; Beach on Pub. Corp., sec. 512.] And the question may be raised and determined by habeas corpus. [Church on Habeas Corpus, sec. 352.]

III. The owner of property has the right to use the same in any manner he may see fit consistent with the rights of others. Hence, the prohibiting by ordinance of...

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