The City of St. Louis v. Russell

• Citation: 22 S.W. 470,116 Mo. 248
• Parties: The City of St. Louis, Plaintiff in Error, v. Russell
• Decision Date: 24 May 1893
• Court: Missouri Supreme Court

22 S.W. 470

116 Mo. 248

The City of St. Louis, Plaintiff in Error, v. Russell

Supreme Court of Missouri, Second Division

May 24, 1893

Error to St. Louis Court of Criminal Correction. -- Hon. R. A Campbell, Judge.

Affirmed.

W. C Marshall for plaintiff in error.

(1) The ordinance of the City of St. Louis in question is a valid one. State ex rel v. Beattie, 16 Mo.App. 131; Dillon on Municipal Corporations [4 Ed.], sec. 141. (2) The power conferred by the charter of St. Louis city to regulate livery stables includes the right to designate the places where they may be located and to prohibit their erection at other places, and the ordinance provisions in question are reasonable. See Dillon on Municipal Corporations, sec. 379.

Louis A. Steber for defendant in error.

(1) The ordinance is void for the reason that a public trust cannot be delegated or assigned at will. Ruggles v Collier, 43 Mo. 353; City v. Clemens, 43 Mo 395; Thompson v. Boonville, 61 Mo. 282; Matthews v. Alexandria, 68 Mo. 119; Stewart v. Clinton, 79 Mo. 610; Cooley on Constitutional Limitation [6 Ed.], pp. 137, 248, 249; In re Quong Woo, 13 F. 229; Baltimore v. Radecke, 49 Md. 217; Yick Wo v. Hopkins, 118 U.S. 356; State ex rel v. Beattie, 16 Mo.App. 144 (the dissenting opinion is the correct law as announced by all courts in this country); Dillon on Municipal Corporations [4 Ed.], secs. 96, 97, pp. 154, 156; State Center v. Barenstein, 66 Iowa 249; City of Richmond v. Dudley, 28 N.E. 312; State v. Mahnor, 9 South. Rep. (La.) 480. (2) If the legislative powers of the municipal assembly and mayor with reference to the livery and sale stables can also be transferred to the "owners of one-half of the ground of said block," it will create a petty legislative body in every city block of the city of St. Louis, with concurrent jurisdiction over this branch of municipal affairs. This, certainly, was not contemplated by the charter makers. Ruggles v. Collier, 43 Mo. 353; State v. Street Commissioner, 36 N. J. Law 283; Tugman v. Chicago, 78 Ill. 405; Cooley on Constitutional Limitation [6 Ed.], p. 137; In re Quong Woo, 13 F. 229. (3) Nor can the municipal assembly abdicate its legislative powers vested in it by the state. Gale v. Kalamazoo, 23 Mich. 344; 1 Tex. Ct. of App. p. 714, secs. 1243, 1244. (4) The use of one's property is as much property as the property itself. Lackland v. Railroad, 31 Mo. 180; Thurston v. City of St. Joseph, 51 Mo. 510 (517). There is a clear distinction between the erection of the building itself and the use to which that building may be put. Flint v. Russell, 5 Dill. 151; Appeal of Czarniecki, 11 A. 660; Duncan v. Hays, 22 N.J.Eq. 25; Bridge Co. v. Paige, 83 N.Y. 178. (6) The ordinance is unequal, unreasonable, oppressive, partial and is discriminating, Ex parte Quong Woo, 18 F. 229; Yick Wo v. Hopkins, 118 U.S. 356; Ex parte Sing Lee, 31 P. 245 (Cal) ; State v. Tennant, 14 S.E. (N. C.) 387. (7) The ordinance is in violation of the fourteenth amendment to the constitution of the United States. Ex parte Quong Woo, 13 F. 229; Yick Wo v. Hopkins, 118 U.S. 356; Ex parte Sing Lee, 31 P. 245. (8) A condemnation of the use of property by a body known as "the owners of one-half the ground" in a city block, is not due process of law, which see defined Bouvier's Law Dictionary; Bates v. District of Columbia, 8 D. C. 443. (9) The municipal assembly itself could not deprive this defendant of the use of this property. Bates v. District of Columbia, supra; Wood on Nuisances [2 Ed.], sec. 744, pp. 822, 823; Yates v. Milwaukee, 77 U.S. (505) 497; Yick Wo v. Hopkins, 118 U.S. 356; River Rendering Co. v. Behr, 77 Mo. 91; Underwood v. Green, 42 N.Y. 140; Baltimore v. Radecke, 49 Md. 217; Kosciusko v. Slomberg, 68 Miss. 469. (10) Nor can even the legislature constitutionally declare a given use of a particular property as harmful and a nuisance. This would be exercising a judicial function. Quintini v. Bay St. Louis, 64 Miss. 483; Tiedeman on Police Powers, sec. 122a, p. 426; Wood on Nuisances [2 Ed.], sec. 744, pp. 822, 823. (11) A livery stable business is a legitimate industry which any man can follow as a matter of right, like any other legitimate business, trade or avocation, limited only by the rule of sic utere tuo ut alienum non laedas. Flint v. Russell, 5 Dill. 151; St. Louis v. Schnuckelburg, 7 Mo.App. 537.

OPINION

Burgess, J.

-- On the twenty-first day of July, 1890, the defendant was found guilty in the police court of St. Louis, and fined the sum of $ 200.00 for violation of section 733 of the ordinances of said city, to-wit:

"Section 733. Every person, who as owner, agent, lessee, builder, architect or contractor, shall commence any building in the city of St. Louis, or do or cause to be done any work on the same, or build the same without first having procured a permit authorizing the same from the commissioner of public buildings, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than one nor more than five hundred dollars for each offense, and every day upon which said work shall be done, or said building shall be commenced, or exist without said permit, shall constitute a separate offense."

He appealed to the court of criminal correction where he was again tried on the following agreed statement of facts:

"The plaintiff, the city of St. Louis, is a municipal corporation, organized under the laws of Missouri; defendant is the owner of a certain lot of ground in said city of St. Louis, fronting on the east side of Grand avenue between Lucky and North Market streets, and in city block number --. Defendant is now erecting a livery stable thereon without a permit, and that prior to commencing said building thereon applied to the commissioner of public buildings for a permit for the erection of a livery stable upon his said property; that said application was in writing and in proper form; that defendant also tendered in connection therewith suitable and satisfactory plans and specifications for said livery stable, and also tendered therewith the required fee for the issuance of the permit; that the building commissioner stood ready to issue said permit and will yet issue said permit if defendant will comply with the provisions of sections 734 and 735 of the revised ordinance of the city of St. Louis, which read as follows:

'Section 734. No livery, boarding or sale stables shall be located on any block of ground in St. Louis without the written consent of the owners of one-half the ground of said block.

'Section 735. No permit shall hereafter be granted by the commissioner of public buildings for the erection of any livery, boarding or sale stables until the provision contained in the next preceding section is complied with, and the written consent aforesaid is filed in said office.'

"The question and issue submitted to the court for determination is the validity or invalidity of the two sections quoted; and on which judgment shall be had either for plaintiff or defendant as the court may find. The bound volume of Revised Ordinances, 1887, of the city of St. Louis may be considered in evidence without being set out herein or in any bill of exceptions hereafter presented by either party."

On the sixteenth of September, 1890, the court of criminal correction discharged the defendant. After a motion for a new trial was filed and overruled the cause was brought to this court by plaintiff on a writ of error.

By section one of article three of the charter of the city of St. Louis, the legislative power of the city is vested in a council and house of delegates, to be styled the "Municipal Assembly of the City of St. Louis." And it is contended by counsel for plaintiff the further power is conferred on it by its charter to pass the ordinances now before this court for consideration. By the fifth paragraph of section 26, of article 3, of its charter it is given the power to license, tax and regulate livery and sale stables; in paragraph six of the same section it is given the power to declare, prevent and abate nuisances on public and private property; and by paragraph fourteen, of the same section, it is given the power to pass all such ordinances, not inconsistent with the provisions of 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.

The first question for our consideration is whether or not the power to regulate livery and sale stables includes the right to designate the places, and in what part of the city they may be located, and to prohibit their erection at other places. A similar question was before this court in 1857, in the case of St. Louis v. Jackson, 25 Mo. 37, in which it was held that a clause in the charter of the city of St. Louis, giving the mayor and city council the power to "regulate the inspection of butter, lard, and other provisions; to regulate the vending of meat, poultry and vegetables; to restrain and punish the forestalling of poultry, butter, eggs, and fruit, and to suppress hucksters," confers upon them the power to provide by ordinance that "no person not being the lessee of a butcher's stall, shall sell or offer for sale in market or in any other place, any fresh meat in less quantities than one quarter," is not in restraint of trade, but is both politic and proper. The court in its opinion says: "This ordinance is not against any known law of our state, nor does it interfere with the right of selling the commodities of our citizens; it requires that the person retailing fresh meat shall have a stall in some market for that purpose. The city undergoes heavy expense in erecting commodious and convenient market houses; it rents the stalls of those houses to...