City of St. Louis v. Fischer

• Decision Date: 19 March 1902
• Citation: 67 S.W. 872,167 Mo. 654
• Parties: CITY OF ST. LOUIS v. FISCHER, Appellant
• Court: Missouri Supreme Court

67 S.W. 872

167 Mo. 654

CITY OF ST. LOUIS v. FISCHER, Appellant

Supreme Court of Missouri, Second Division

March 19, 1902

Appeal from St. Louis Court of Criminal Correction. -- Hon. Willis H. Clark, Judge.

Affirmed.

Louis A. Steber for appellant.

(1) (a) We are dealing in this case with the right of property and not with the question of nuisance. (b) A dairy or cow stable has never been considered or treated as a nuisance per se, or prima facie. If complained of as a nuisance, that question must be tried in a proper proceeding as a question of fact. (2) Section 5 of the ordinance is in violation of the fourteenth amendment to the Constitution of the United States. (3) (a) Section 5 of the ordinance is in violation of article 2, section 30, of the Constitution of Missouri. In depriving him of the use of the property, it deprives him of the property itself. (b) The personal liberty of the citizen and his right of property can not be thus invaded under the guise of a police regulation. (c) "If such an ordinance as the one in question be upheld, then all our constitutional provisions for the protection of property rights are meaningless and worthless."

B Schnurmacher and Bass & Brock for respondent.

(1) The ordinance in question prohibiting the erecting, building or establishing of a dairy or cow stable within the city limits without permission from the municipal assembly by ordinance and prohibiting the maintaining of a dairy or cow stable not in operation at the time of the approval of the ordinance without similar permission, is a valid municipal enactment. St. Louis v. Howard, 119 Mo. 47. (2) The ordinance is a valid exercise of the police power delegated by the State to the city by paragraph 6 of section 26 of article 3, of the city charter, which authorizes the municipal assembly and the mayor to "prohibit the erection of cow stables and dairies and to remove and regulate the same." Tiedeman's State and Federal Control of Persons and Property, p. 731; 2 Kent's Com. 340; Parker & Worthington on Public Health and Safety, p. 291; St. Louis v. Weber, 44 Mo. 547; In re Linahan, 72 Cal. 114; State v. Broadbelt, 89 Md. 565. (3) The ordinance is also a valid exercise of the power given to the city by paragraph 14 of section 26 of article 3, known as the "General Welfare Clause." Ferrenbach v. Turner, 86 Mo. 416; City of Tarkio v. Cook, 120 Mo. 1; State v. Fisher, 52 Mo. 174; State v. Bixman, 62 S.W. 828; Eichenlaub v. St. Joseph, 113 Mo. 395; Slaughter House Cases, 16 Wall. 36; Sohier v. Trinity Church, 109 Mass. 1. (4) No legislative enactment will be declared unconstitutional unless clearly so, and every presumption is in favor of its validity. State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. Henderson, 60 S.W. 1093; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. Yancy, 123 Mo. 391; Ewing v. Hoblitzelle, 85 Mo. 64; St. Louis County Court v. Griswold, 58 Mo. 192; State v. Able, 65 Mo. 357. The same rule applies to municipal ordinances. City of Lamar v. Weidman, 57 Mo.App. 507. (5) The city has express authority under its charter to "prohibit" cow stables and dairies, and to "remove and regulate" the same. Having such power by express grant, the mere passage of an ordinance makes out a prima facie case that it is reasonable, and the courts will not review the question as they will where the power is merely incidental or implied. Skinker v. Heman, 148 Mo. 349; St. Louis v. Green, 70 Mo. 562; S. C., 7 Mo.App. 468.

GANTT J. Burgess, C. J., Robinson, Brace, Marshall and Valliant, JJ., concurring therein; Sherwood, J., dissenting.

OPINION

In Banc

GANTT, J.

This is a civil action by the city of St. Louis to recover a fine of $ 100 for the violation of section 5 of a city ordinance of said city, numbered 18407, approved April 6, 1896, which said section is in these words:

"No dairy or cow stable shall hereafter be erected, built or established within the limits of this city without first having obtained permission so to do from the municipal assembly by proper ordinance, and no dairy or cow stable not in operation at the time of the approval of this ordinance shall be maintained on the premises unless permission so to do shall have been obtained from the municipal assembly by proper ordinance. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than one hundred dollars nor more than five hundred dollars."

The complaint charged that defendant, in the city of St. Louis, and State of Missouri, was, on the sixteenth day of November, 1898, and on divers other days and times prior thereto, the occupant of certain premises known as 7208 and 7210 North Broadway in said city, and did then and there erect, build, and establish on said premises a dairy and cow stable without first having obtained permission so to do from the municipal assembly by proper ordinance, and furthermore did at said times and place maintain said dairy and cow stable without having obtained permission from said municipal assembly of said city by proper ordinance, and that said dairy and cow stable was not in operation at the time of the approval of said ordinance No. 18407, to-wit, April 6, 1896, contrary to the said ordinance.

The defendant was found guilty in the police court and appealed to the court of criminal correction. In the last mentioned court he moved to quash the complaint on nine grounds, as follows:

1. Because the statement does not set forth facts sufficient to constitute any offense under the ordinances of the city of St. Louis.

2. Because section 5 of said ordinance No. 18407 is unconstitutional and void for the reason that it operates to deprive a person of property without due process of law.

3. Because said section 5 is void as being unreasonable and oppressive to the citizen and the property-owner.

4. Because said section is void, there being no power or authority granted to the municipal assembly by the charter of the city of St. Louis to pass the same.

5. Because said section is retrospective in its nature and application and, therefore, in violation of the rights of private property.

6. Because said section 5 is void, being a delegation of the powers of the municipal assembly.

7. Because said section is in violation of section 30, article 2, of the Constitution of the State of Missouri.

8. Because said section 5 is in violation of section 4 of article 2 of the Constitution of Missouri.

9. Because said section 5 is void as being in violation of the fourteenth amendment to the Constitution of the United States, in that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.

The court of criminal correction overruled this motion, and thereupon entered his plea of not guilty, and the cause was submitted to that court upon an agreed statement of facts, without a jury, and the court found defendant guilty of a violation of said ordinance and fined him $ 100, from which he appeals to this court.

The agreed statement of facts is in these words:

"It is hereby agreed and stipulated by and between the parties to the above entitled cause by their respective attorneys, that said cause may be submitted and tried upon the following statement of facts, to-wit:

"The plaintiff, the city of St. Louis, is a municipal corporation, organized and existing under the laws of the State of Missouri, and defendant is and was on the sixteenth day of November, 1898, the occupant of certain premises known as 7208 and 7210 North Broadway, in the city of St. Louis, State of Missouri, upon which premises, at said time, stood a dwelling house and frame stable which had been erected and built prior to the occupancy of said premises by defendant.

"At the time of the approval of ordinance No. 18407 of said city, said premises, buildings, and stable, were occupied and in use by a certain party other than this defendant for the purpose of operating a dairy and maintaining a cow stable, and this defendant was, at the same time, operating a dairy and maintaining a cow stable on premises known as No. 6305 Bulwer avenue, in said city. Sometime in the month of March, 1898, the said premises at Nos. 7208 and 7210 North Broadway were abandoned as a dairy and cow stable, and the dwelling house thereon was occupied by a private family for residence purposes only, and no dairy or cow stable was maintained on said premises from March, 1898, until some time in September, 1898. In September, 1898, defendant moved his cows, about thirty in number, from premises No. 6305 Bulwer avenue, on to premises Nos. 7208 and 7210 North Broadway, placed them in the old stable, and did proceed to conduct upon said premises a dairy establishment and produce from said cows milk, and sell the same to his customers for profit, and was so doing on the said sixteenth day of November, 1898, without having first obtained permission so to do from the municipal assembly by proper ordinance, as provided by section 5 of ordinance No. 18407, of the city of St. Louis, approved April 6, 1896.

"It is hereby stipulated and agreed by the parties to this cause by their respective attorneys that the printed ordinance marked Exhibit A, which is attached to and made a part of this agreed statement of facts, is a full, true and correct copy of said ordinance No. 18407, and may be considered in evidence in this cause."

The transcript in this case is somewhat difficult to understand. It is either all record proper, or all bill of exceptions. There is...