City of St. Louis v. Evraiff

• Decision Date: 20 November 1923
• Citation: 256 S.W. 489,301 Mo. 231
• Parties: CITY OF ST. LOUIS, Plaintiff in Error, v. MORRIS EVRAIFF et al
• Court: Missouri Supreme Court

256 S.W. 489

301 Mo. 231

CITY OF ST. LOUIS, Plaintiff in Error, v. MORRIS EVRAIFF et al

Supreme Court of Missouri

November 20, 1923

Error to St. Louis Court of Criminal Correction; Hon. Chauncey J. Krueger, Judge.

Affirmed.

Henry S. Caulfield and George F. Haid for plaintiff in error.

(1) The city derives its charter in pursuance of the provisions of the Constitution of Missouri, and the police powers delegated therein are conferred by the State upon the city. St Louis Gunning Co. v. St. Louis, 235 Mo. 149; St Louis v. Liessing, 190 Mo. 480. (2) The "zoning" ordinance in question is within the charter powers of the city. St. Louis Gunning Co. v. St Louis, 235 Mo. 143; Charter of St. Louis, art. I, secs. 25, 26, 34; St. Louis v. Fischer, 167 Mo. 654, 194 U.S. 361; Kansas City v. Oil Co., 140 Mo. 458. (3) The police power extends to all matters affecting the peace, order, health, morals, convenience, comfort and safety of its citizens. Kidd v. Pearson, 128 U.S. 1; C., B. & Q. Ry. Co. v. Drainage Comms., 200 U.S. 592; Escanaba Co. v. Chicago, 107 U.S. 683; City of Des Moines v. Manhattan Oil Co., 184 N.W. 827; 3 McQuillan on Municipal Corp. pp. 1884, 1885, 1886; 7 McQuillan on Municipal Corp. (Supplement) p. 7046; Bacon v. Walker, 204 U.S. 317; Noble State Bank v. Haskell, 219 U.S. 104; Lake Shore & Mich. So. Ry. Co. v. Ohio, 173 U.S. 285; St. Louis Gunning Co. v. St. Louis, 235 Mo. 148. (4) Prima-facie, the municipal assembly is the sole judge of the necessity for an ordinance, and if reasonable on its face, the ordinance will be sustained, unless facts are shown which make it unreasonable. St. Louis v. Theatre Co., 202 Mo. 690; St. Louis Gunning Co. v. St. Louis, 235 Mo. 204; Cusack Co. v. Chicago, 242 U.S. 531; Ex parte Quong Wo, 118 P. 714; Lincoln Trust Co. v. Williams Bldg. Co., 229 N.Y. 313. (5) The party attacking the validity of an ordinance upon the ground of unreasonableness has the burden of showing unreasonableness. St. Louis v. Theatre Co., 202 Mo. 701; St. Louis Gunning Co. v. St. Louis, 235 Mo. 204; Wagner v. St. Louis, 224 S.W. 413. (6) The zoning ordinance in question is reasonable and does not violate any of the provisions of the Constitution of Missouri and is a valid exercise of the police power by the municipal assembly. St. Louis v. Fischer, 167 Mo. 654, 194 U.S. 361; St. Louis Gunning Co. v. St. Louis, 235 Mo. 148; State ex rel. v. Cunningham, 97 Ohio St. 130; Hadacheck v. Los Angeles, 239 U.S. 394; Opinion of the Justices, 127 N. E. (Mass.) 525; Lincoln Trust Co. v. Williams Building Corp., 229 N.Y. 313; Ex parte Quong Wo, 118 P. 714; Cochran v. Preston, 108 Md. 220. (7) The fact that legislation under the police power may work a greater hardship on one than upon another does not render it invalid if its operation is a like upon all persons and property under the same circumstances and conditions. Barbier v. Connelly, 113 U.S. 27; Hadacheck v. Los Angeles, 239 U.S. 410; Salt Lake City v. Western Foundry Works, 187 P. 829; Cusack Co. v. Chicago, 242 U.S. 530; Reinman v. Little Rock, 237 U.S. 177; C., B. & Q. Ry. Co. v. Drainage Comms., 200 U.S. 591. (8) A proper exercise of the police power does not constitute the taking of property for public use without compensation, although its exercise may interfere with the full enjoyment of the property. C., B. & Q. Ry. Co. v. Drainage Commrs., 200 U.S. 561; Reinman v. Little Rock, 237 U.S. 177; Barbier v. Connelly, 113 U.S. 31; Cusack Co. v. Chicago, 242 U.S. 530; City of Des Moines v. Manhattan Oil Co., 184 N.W. 828.

Karl Kimmel for defendant in error; E. M. Harber, E. F. Halstead, Glendy B. Arnold, Edward M. Bassett, D. D. Holmes, J. E. Turner and Albert L. Schmidt, amici curiae.

(1) No person shall be deprived of property without due process of law. St. Louis v. Dreisoerner, 243 Mo. 217; St. Louis v. Dorr, 145 Mo. 466; St. Louis v. Hill, 116 Mo. 527; River Rendering Co. v. Behr, 77 Mo. 91; Ex parte Lerner, 218 S.W. 331; Buchanan v. Warley, 245 U.S. 60; U.S. Const., Amendment, Art. 5; U.S. Constitution, Amendment XIV, sec. 1. (2) Private property shall not be taken for public use without just compensation. St. Louis v. Hill, 116 Mo. 527; Art. II, sec. 21, Mo. Constitution. (3) A municipal ordinance must conform to the State law. Sec. 9582, R. S. 1909; Village of Jonesberg v. Yocum, 195 S.W. 884; St. Louis v. Dreisoerner, 243 Mo. 217; St. Louis v. Meyer, 185 Mo. 583; St. Louis v. Tielkemeyer, 226 Mo. 130; State v. Stobie, 194 Mo. 15; St. Louis v. Williams, 235 Mo. 503; St. Louis v. Wortman, 213 Mo. 131. (4) The "zoning" ordinance is retroactive in its effect, because it applies to callings which are already established in prohibited districts. City of Willow Springs v. Withaupt, 61 Mo.App. 275. (5) It is the settled law that a municipal corporation "has no power by ordinance to declare that to be a nuisance which is not so in fact, or to suppress in part or in toto any business within its limits which is not a nuisance per se." St. Louis v. Dreisoerner, 243 Mo. 217; St. L. Gunning Co. v. St. Louis, 235 Mo. 147; St. Louis v. Packing Co., 141 Mo. 375. (6) The clause of the "zoning" ordinance upon which the information against the defendants was framed, refers to a calling, to-wit, the use of property for the storage of scrap iron, junk or rags, which is not a nuisance per se, nor had not become such as carried on by defendants. Hence the city had no power under its charter to prohibit or abate it. It was a gainful occupation which the defendants were lawfully entitled to pursue. The city had no specific power under its charter to regulate it, nor any authority so to do, under the general welfare clause, or as a police regulation. St. Louis v. Dreisoerner, 243 Mo. 217; St. Louis v. Dorr, 145 Mo. 466; St. Louis v. Hill, 116 Mo. 527; River Rendering Co. v. Behr, 77 Mo. 91. (7) A penal ordinance must be general in its terms and uniform in its application to the class of persons or subjects to be affected. Ex parte Lerner, 218 S.W. 331. (8) The zoning ordinance deprives the citizen of equal rights and protection under the law, and is therefore in violation of Amendment XIV, sec. 1, Const. of United States, and Article II, sec. 4, Const. of Missouri. Hays v. Poplar Bluff, 263 Mo. 516. (9) Legislation, either by the State or municipal corporation, which interferes with private property rights or personal liberty, cannot be sustained for purely aesthetic purposes, that have no relation to health, safety, convenience, comfort or welfare of the city. People ex rel. Friend v. Chicago, 261 Ill. 16; Chicago v. Gunning System, 214 Ill. 628; Buffalo v. Kellner, 153 N.Y.S. 472; L. R. A. 1917A, 1221n. (10) The police power is a necessary and wholesome faculty of municipal government, but only extends to the regulation of employments prejudicial to the public safety, health, morals, and good government of the citizenry, and it "ends where those public interests are not beneficially served thereby." St. Louis v. Dreisoerner, 243 Mo. 217; Gunning Co. v. St. Louis, 235 Mo. 200.

Higbee, C. Woodson, C. J., and David E. Blair and Walker, JJ., concur; Graves, J., concurs in the result; James T. Blair, Ragland and White, JJ., dissent.

OPINION

HIGBEE

This is an action to recover the penalty prescribed for the violation of certain sections of Ordinance No. 30199 of the city of St. Louis, approved July 15, 1918, known as the "zoning" ordinance, which prohibits, inter alia, the erection or use of property for the storage of scrap iron, rags and junk in industrial districts, and permits the establishment and operation thereof in unrestricted districts. The evidence shows that defendants about October 1, 1918, established and conducted a rag and junk yard at Nos. 2026 and 2028 O'Fallon Street, a densely populated section within the industrial district established by the ordinance. The court sustained a demurrer to the evidence on the ground that the ordinance is not authorized by any statute or law of the State and is unreasonable and violative of various sections of the Federal and State constitutions. From the judgment discharging the defendants, the city appealed.

Section 2 of the ordinance divides the city into five districts: first, residence: second, residence, commercial, industrial and unrestricted districts. The boundaries of the several districts are shown upon a map made a part of the ordinance. The industrial district comprises a little more than one square mile of territory within the city limits. It extends westward from Third Street and, speaking generally, is bisected by Washington Avenue, one of the principal streets of the city.

Section 3 provides that the use of all buildings and premises at the time of the adoption of the ordinance may be continued. Section 8 provides that no land or building in the industrial district shall be erected or used for about fifty specified trades, industries or uses, including "scrap iron, junk or rags storage or baling." Section 31 provides that any violation of the provisions of the ordinance shall be deemed a misdemeanor and subject the offender to a fine of not less than five nor more than five hundred dollars for each offense. Each day that a violation is permitted to exist shall constitute a separate offense.

The Charter of the City of St. Louis provides that it shall have power:

"(25) To define and prohibit, abate, suppress, and prevent or license and regulate all acts, practices, conduct, business occupations, callings, trades, uses of property, and all other things whatsoever detrimental or liable to be detrimental to the health, morals, comfort, safety, convenience or welfare of the inhabitants of the city and all nuisances and causes thereof.

"(26) To prescribe limits within which business, occupations and practices...