46 S.W. 976 (Mo. 1898), St. Louis v. Dorr

Citation46 S.W. 976, 145 Mo. 466
Opinion JudgeBarclay, C. J. --
Party NameSt. Louis, Plaintiff in Error, v. Dorr et al
AttorneyW. C. Marshall for plaintiff in error. I. H. Lionberger and Louis A. Steber for defendants in error.
Judge PanelBarclay, C. J. Judges Gantt, Macfarlane, Robinson and Brace concurring. Judge Sherwood expresses his views in a separate opinion in which Judge Burgess concurs. Judge Sherwood, dissenting. Sherwood Sherwood, J. (dissenting).
Case DateJuly 06, 1898
CourtSupreme Court of Missouri

Page 976

46 S.W. 976 (Mo. 1898)

145 Mo. 466

St. Louis, Plaintiff in Error,

v.

Dorr et al

Supreme Court of Missouri

July 6, 1898 [*]

Error to St. Louis Court of Criminal Correction. -- Hon. James R. Claiborne, Judge.

Affirmed.

W. C. Marshall for plaintiff in error.

(1) This being a constitutional question, the subject is open to examination notwithstanding the decision in the case of Murnane v. St. Louis, 123 Mo. 479; Railroad v. Morgan Co. Ct., 53 Mo. 156. (2) The decision in Murnane v. St. Louis is erroneous. (3) The boulevard law is constitutional. (4) At the outset it is proper to bear in mind that there is no city in the State of Missouri organized under the laws of this State in reference to cities of the first class, and comparatively few cities in the State that have been organized under the Cities, Towns and Villages act, passed by the General Assembly of Missouri after the adoption of the Constitution of 1875. Nearly every large city in this State is organized under a special charter. Pursuant to the direction of section 7 of article IX, the General Assembly, by the act of 1877 (acts 1877, p. 42), divided the cities of the State into four classes, to wit: First class, one hundred thousand inhabitants or more; second class, twenty thousand and less than one hundred thousand; third class, five thousand and less than twenty thousand; fourth class, five hundred and less than five thousand. This classification remained until the adoption of the Revised Statutes of 1889, when, by sections 972, 973, 974 and 975, the classification was changed. The court admits that there is another group of cities in the State, to wit: Cities organized under special charters existing when the Constitution took effect. The court, however, does not notice that section 16 of article IX, authorizes another class, to wit: Cities having a population of more than one hundred thousand inhabitants, and that sections 20 to 25, of article IX, authorize a distinct class to wit: St. Louis, by name, and that section 18 of article IX, creates another class, to wit: Cities having more than two hundred thousand inhabitants, by prohibiting any person from holding a state office and a city office at the same time. Thus, if the act of the legislature in dividing the cities into four classes carried out the commands of section 7 of article IX, there would still be four other classes of cities specially authorized by the Constitution of the State, so that under this interpretation we would have eight classes of cities as follows: First. Cities of over one hundred thousand. Second. Cities of thirty thousand and less than one hundred thousand. Third. Cities of three thousand and less than thirty thousand. Fourth. Cities of five hundred and less than three thousand. Fifth. Cities organized under special charters existing when the Constitution took effect. Sixth. Cities of over one hundred thousand organized under section 16. Seventh. The city of St. Louis. Eighth. Cities of two hundred thousand regulated by section 18. All of these cities are recognized in the same article of the Constitution, and the various sections authorizing their existence must be construed together. (5) This act is general. It applies to every city that now has or may hereafter attain a population of three hundred thousand inhabitants. It is in no sense an amendment of the charter of the city with reference to a purely municipal matter. It is not obligatory upon any city. It is purely an enabling act. (6) It is not true under our form of government, especially in large cities, that every man has a right to use his property in any manner he sees fit. He has a qualified right only. His right to use his own is always limited by the consideration that he shall not so use his own as to injure the property of other people. A man who builds a livery stable or a rendering establishment, or opens a quarry, or builds a business house on his own land, may benefit himself, but in the doing he may inflict irreparable injury upon his neighbors, and he has no right to do so.

I. H. Lionberger and Louis A. Steber for defendants in error.

(1) Article IV, section 53 of the Constitution prohibits the General Assembly from passing any local or special law regulating the affairs of cities. The act of 1891 is a local and special law notwithstanding that it applies to all cities having three hundred thousand people and over. State v. Hammer, 42 N. J. 440; State v. Miller, 100 Mo. 448; Murnane v. St. Louis, 123 Mo. 491. (2) Section 53 of article IV of the Constitution prohibits the General Assembly from passing any local or special law changing the charter of an incorporated city. (3) Section 7 of article IX requires the General Assembly to provide by general law for the organization and classification of cities and towns into not more than four classes and to confer the same powers and impose the same restrictions on all cities of the same class. St. Louis is a city of the first class under this definition. The legislature has no power by the act of 1891 to confer upon it alone, of the cities containing one hundred thousand or more inhabitants, the power to establish boulevards, etc. Murnane v. St. Louis, 123 Mo. 489; Kansas City v. Scarritt, 127 Mo. 651. (4) Sections 20 and 22 of article IX of the Constitution authorize the city of St. Louis to adopt a charter which can be amended by a vote of the qualified voters of the city only. The act of 1891 amends the charter adopted by the city in a matter of purely local concern without the consent of the voters of the city, and impairs the local autonomy intended to be conferred. Kansas City v. Scarritt, 127 Mo. 650. (5) Section 31 of article II of the Constitution provides that private property shall not be taken or damaged for public use without compensation. The act of 1891 prohibits the use of property abutting on a boulevard for a lawful business purpose, and to that extent impairs its value for the benefit of the public, without compensation to the owner. St. Louis v. Hill, 116 Mo. 527.

Barclay, C. J. Judges Gantt, Macfarlane, Robinson and Brace concurring. Judge Sherwood expresses his views in a separate opinion in which Judge Burgess concurs. Judge Sherwood, dissenting.

OPINION

[145 Mo. 470] In Banc.

Barclay, C. J. --

In March, 1894, the city of St. Louis began an action in a police court against the defendants, Messrs. Dorr and Zeller, to recover a penalty for violation of a municipal ordinance. In the police court the defendants were adjudged not guilty. The city took an appeal to the St. Louis Court of Criminal Correction where the trial now under review took place.

The substance of the charge against defendants is that they carry on the business of confectioners in a building (No. 3924) on Washington boulevard, contrary to said ordinance. The ordinance was enacted in 1892. It declares a certain portion of Washington avenue to be a boulevard, and, among other provisions regulating the use of that thoroughfare, provides that "the houses fronting or bordering on Washington boulevard, between Grand avenue and Kingshighway, shall be used as residences only, and no business avocations whatever shall be allowed to be followed in same."

It appears from the record that on March 15, 1894 (and on divers days immediately prior thereto) the defendants were carrying on the interdicted avocation at the place mentioned. They had previously conducted [145 Mo. 471] a confectionery business on Vandeventer avenue, just east of their store on Washington boulevard.

Defendants' counsel at the trial admitted the material facts charged. The defense is that the ordinance is unconstitutional. The trial court sustained that defense and entered judgment for defendants. The city (after the necessary steps) brought the case to the Supreme Court by writ of error. It was heard in the second division which entered an order transferring the case to the Court in banc, June 8, 1897. It has since been argued and submitted to the whole court.

1. The claim of the city is that the ordinance

Page 977

is authorized by "An Act relating to boulevards in cities having a population of 300,000 inhabitants or more." Laws, 1891, p. 47.

The first section of that Act is as follows:

"Section 1. All cities in Missouri having a population of three hundred thousand inhabitants or more, or which shall hereafter reach said population, are hereby authorized and empowered to establish by ordinance boulevards and provide for maintaining the same; and may regulate the traffic thereon, and may exclude heavy driving thereon, or any kind of vehicle therefrom, and may exclude the institution and maintenance of any business avocation on the property fronting on such boulevard and may establish a building line to which all buildings and structures thereon shall conform, and may convert existing streets into boulevards, and may levy a special tax on property fronting on said boulevards, to light, sweep and maintain the same, and the grass and trees thereon, or any part of said expenditures, and for the above purposes, or any of them, may lay out a district or districts in which said special tax shall be levied, and provide for the assessment of said special tax, by assessing the same in favor of the city on the adjoining property fronting [145 Mo. 472] or bordering on the boulevards where such lighting, sweeping and maintenance is to be had, in the proportion that the linear feet of each lot fronting or bordering on the boulevard bears to the total number of linear feet of all property chargeable with the special tax aforesaid in the district so established, and may accept dedication, of boulevards with conditions thereto attached which shall be binding and conclusive: Provided, however, that no ordinance on...

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  • 159 S.E. 401 (Ga. 1931), 7966, Howden v. Mayor & Aldermen of Savannah
    • United States
    • Georgia Supreme Court of Georgia
    • June 11, 1931
    ...98 N.Y. 98, 50 Am.Rep. 636; People v. Chicago, 261 Ill. 16, 103 N.E. 609, 49 L.R.A. (N. S.) 438, Ann.Cas. 1915A, 292; St. Louis v. Dorr, 145 Mo. 466, 41 S.W. 1094, 42 L.R.A. 686, 68 Am.St.Rep. 575; Calvo v. New Orleans, 136 La. 480, 67 So. 338; State v. Houghton, 134 Minn. 226, 158 N.W. 101......
  • 1 S.W.2d 1021 (Mo. 1928), 28361, State ex rel. Zoological Board of Control v. City of St. Louis
    • United States
    • Missouri Supreme Court of Missouri
    • January 18, 1928
    ...to attempt to divert the taxing power would be tantamount to attempting to amend the charter of the said city. Dorr v. St. Louis, 145 Mo. 466; Murnane v. St. Louis, 123 Mo. 475; State ex rel. McDaniel v. Schramm, 272 Mo. 541; Morrow v. Kansas City, 186 Mo. 675; Kansas City v. Field, 194 S.W......
  • 148 S.W.2d 503 (Mo. 1941), 37195, State ex rel. State Highway Com'n v. Union Elec. Co. of Missouri
    • United States
    • Missouri Supreme Court of Missouri
    • March 13, 1941
    ...Mo. 169, 167 S.W. 967; 4 Jones on Law of Evidence, p. 2833, sec. 1550; Williams v. Ry. Co., 153 Mo. 534, 54 S.W. 689; Carter v. Foster, 145 Mo. 497, 47 S.W. 6; Ellis v. Harrison, 104 Mo. 279, 16 S.W. 198; Wolfe v. Dyer, 95 Mo. 545, 8 S.W. 551; Union Depot Co. v. Railroad, 131 Mo. 305, 31 S.......
  • 168 S.W. 721 (Mo. 1914), City of St. Louis v. Bell Place Realty Co.
    • United States
    • Missouri Supreme Court of Missouri
    • June 23, 1914
    ...Farber, 171 Ill. 160; Howe v. Lowell, 171 Mass. 575; St. Louis v. Handlan, 242 Mo. 88; St. Louis v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. 466. (a) The ordinance does not impose any limitation or restriction upon the property fronting upon the highway to be opened, nor upon the use o......
  • Request a trial to view additional results
96 cases
  • 159 S.E. 401 (Ga. 1931), 7966, Howden v. Mayor & Aldermen of Savannah
    • United States
    • Georgia Supreme Court of Georgia
    • June 11, 1931
    ...98 N.Y. 98, 50 Am.Rep. 636; People v. Chicago, 261 Ill. 16, 103 N.E. 609, 49 L.R.A. (N. S.) 438, Ann.Cas. 1915A, 292; St. Louis v. Dorr, 145 Mo. 466, 41 S.W. 1094, 42 L.R.A. 686, 68 Am.St.Rep. 575; Calvo v. New Orleans, 136 La. 480, 67 So. 338; State v. Houghton, 134 Minn. 226, 158 N.W. 101......
  • 1 S.W.2d 1021 (Mo. 1928), 28361, State ex rel. Zoological Board of Control v. City of St. Louis
    • United States
    • Missouri Supreme Court of Missouri
    • January 18, 1928
    ...to attempt to divert the taxing power would be tantamount to attempting to amend the charter of the said city. Dorr v. St. Louis, 145 Mo. 466; Murnane v. St. Louis, 123 Mo. 475; State ex rel. McDaniel v. Schramm, 272 Mo. 541; Morrow v. Kansas City, 186 Mo. 675; Kansas City v. Field, 194 S.W......
  • 148 S.W.2d 503 (Mo. 1941), 37195, State ex rel. State Highway Com'n v. Union Elec. Co. of Missouri
    • United States
    • Missouri Supreme Court of Missouri
    • March 13, 1941
    ...Mo. 169, 167 S.W. 967; 4 Jones on Law of Evidence, p. 2833, sec. 1550; Williams v. Ry. Co., 153 Mo. 534, 54 S.W. 689; Carter v. Foster, 145 Mo. 497, 47 S.W. 6; Ellis v. Harrison, 104 Mo. 279, 16 S.W. 198; Wolfe v. Dyer, 95 Mo. 545, 8 S.W. 551; Union Depot Co. v. Railroad, 131 Mo. 305, 31 S.......
  • 168 S.W. 721 (Mo. 1914), City of St. Louis v. Bell Place Realty Co.
    • United States
    • Missouri Supreme Court of Missouri
    • June 23, 1914
    ...Farber, 171 Ill. 160; Howe v. Lowell, 171 Mass. 575; St. Louis v. Handlan, 242 Mo. 88; St. Louis v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. 466. (a) The ordinance does not impose any limitation or restriction upon the property fronting upon the highway to be opened, nor upon the use o......
  • Request a trial to view additional results