Baker v. Hasler

• Decision Date: 13 August 1925
• Docket Number: No. 3846.,3846.
• Citation: 274 S.W. 1095
• Parties: BAKER v. HASLER.
• Court: Missouri Court of Appeals

274 S.W. 1095

BAKER v. HASLER.

No. 3846.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Bill for injunction by J. C. Baker against John Hasler. From a judgment of dismissal, plaintiff appeals. Reversed and remanded, with directions.

Von Mayes, of Caruthersville, for appellant.

Ward, Reeves & Oliver, of Caruthersville, for respondent.

BRADLEY, J.

Plaintiff filed his bill against the city marshal of the city of Caruthersville, seeking an injunction to enjoin the enforcement of an ordinance of said city. Answer and reply were filed. Motion was then filed by defendant for judgment on the pleadings. This motion was sustained, and plaintiff's bill dismissed, and he appealed.

The ordinance is as follows:

"An ordinance to prohibit any person, firm, company or corporation licensed to engage in, or carry on, the business of running or operating any automobile or jitney bus for the purpose of carrying passengers for hire from allowing or permitting any such automobile or jitney bus to be or remain stationary or parked on any public street or alley within the corporate limits of the city of Caruthersville, except for a reasonably sufficient length of time to permit passengers to embark or disembark from such automobile or jitney bus, and providing a penalty for the violation of this ordinance.

"Be it ordained by the council of the city of Caruthersville, Mo., as follows:

"Section 1. It shall hereafter be unlawful for any person, firm, company or corporation licensed to engage in or carry on the business of running or operating any automobile or jitney bus for the purpose of carrying passengers for hire to permit or allow any such automobile or jitney but to be or remain stationary or parked on any public street or alley within the corporate limits of the city of Caruthersville, except for a reasonably sufficient length of time to permit passengers to embark on or disembark from such automobile or jitney bus.

"Section 2. Any person, firm, company, or corporation found guilty of violating section 1 of this ordinance shall be fined in a sum not less than $1 nor more than $100 for each and every offense.

"Section 3. This ordinance shall take effect and be in full force from and after its passage and approval.

"Passed and approved this the 17th day of December, 1923. Morrell De Reign, Mayor.

"Attest: Thos B. Ward, City Clerk."

Plaintiff operates an automobile in the city of Caruthersville, a city of the third class, for the purpose of carrying passengers for hire and challenges the validity of this ordinance. Defendant contends that nothing appears in the pleadings to show that plaintiff is entitled to relief on the equity side of the court. Plaintiff alleges, and defendant admits, that this ordinance is being enforced against plaintiff, and that he is not in said city permitted to stop his automobile, used for carrying passengers for hire, longer than is prescribed by said ordinance. Section 2 of the ordinance prescribes a penalty of $1 to $100 for each and every violation. We think that Jewel Tea Co. v. Carthage, 257 Mo.. 383, 165 S. W. 743, is authority supporting plaintiff's contention that he is entitled to injunctive relief, if the ordinance is void. That case was to enjoin the enforcement of, an ordinance defining a mercantile agent, and taxing that occupation a license fee, and making the doing of such business without procuring a license a misdemeanor punishable by a fine. In ruling on the question of whether the cause was one of equity cognizance, the court said:

"It is apparent from the agreed statement of facts that plaintiff could not have adequate remedy at law. It was entitled to prosecute the lawful business, in which it was engaged, without the vexation, annoyance, and irreparable damage of a multiplicity of suits growing out of an arrest and prosecution of its sales agent for each order and delivery of goods taken and made by him."

Plaintiff challenges the validity of the ordinance on the ground that it is not authorized by statute, and that it is void because unreasonable. In City of Monett v. Campbell, 204 S. W. 32, we had under consideration an ordinance alleged to be void because unreasonable. In that case we said:

"Municipal corporations are prima facie the sole judges of the necessity of their ordinances, and courts will not ordinarily review their reasonableness when passed in compliance with authority given by the state. City of Windsor v. Bast [Mo. App.] 199 S. W. 722; City of Hannibal v. Missouri & Kansas Telephone Co., 31 Mo. App. 23; City of St. Louis v. Green, 70 Mo. 562; Co. Ct. of St. Louis Co. v. Griswold, 58 Mo. 175. However, courts may declare an ordinance void if upon inspection it appears to be unreasonable. City of Windsor v. Bast, supra; St. Louis v. St. Louis Theatre Co., 202 Mo. 690, 100 S. W. 627. Also the courts may declare an ordinance void whether void on its face or...