Ballentine v. Nester

• Citation: 164 S.W.2d 378,350 Mo. 58
• Decision Date: 06 August 1942
• Docket Number: 38043
• Parties: Ex parte Bruce Ross Ballentine, Petitioner, v. Thos. Nester, City Marshal
• Court: Missouri Supreme Court

164 S.W.2d 378

350 Mo. 58

Ex parte Bruce Ross Ballentine, Petitioner, v. Thos. Nester, City Marshal

No. 38043

Supreme Court of Missouri

August 6, 1942

Rehearing Denied September 8, 1942.

Petitioner remanded to the city marshal of the City of St Louis.

George W. Curran and Michael J. Doherty for petitioner.

(1) The enactment of a purported health ordinance which places the control of its enforcement in the Division of Smoke Regulation in the Department of Public Safety is not within the powers of the municipal assembly, its powers on this subject are granted in and limited by Section 6540, R. S. Mo 1939, and Article XIII, Section 14, Subsection (a) of the City Charter, where it is provided that the Control of the enforcement of health ordinances shall be in the Board of Health. Ruggles v. Collier, 43 Mo. 353; Murphy v Clemens, 43 Mo. 395; State ex rel. Dunn v. Barlow, 48 Mo. 17; Craemer v. Clemens, 52 Mo. 133; City of Cape Girardeau v. Riley, 72 Mo. 220; Quinette v. St. Louis, 76 Mo. 402; St. Louis v. Gleason, 89 Mo. 67; State v. Butler, 178 Mo. 272; St. Louis v. Kaime, 180 Mo. 309; Construction Co. v. Hauessler, 201 Mo. 400; St. Louis v. Atlantic, 244 Mo. 479; Hillig v. St. Louis, 337 Mo. 291. (a) Ordinance 41804 is not a bona-fide regulation of the peace, health, safety and welfare of the inhabitants of the city in that it does not regulate or prohibit the discharge into the atmosphere of noxious or deleterious gases which may be emitted by the use of fuel containing chemical elements known to cause such gases when burned, but (1) it actually sanctions and provides for the use of the identical qualities of coal in mechanically operated apparatus, the lawful use of which it prohibits in handfired apparatus, and (2) further allows the use of any and all kinds of coal regardless of chemical composition, subject only to the arbitrary discretion of the administrative officers of the city government. Atmospheric pollution of American cities, prepared by the direction of the Surgeon General, Public Health Bulletin No. 224, Public Health Service, United States Treasury Department; Pneumoconiosis in the Pittsburgh district, based on a study of 2,500 post mortem examinations made in Pittsburgh hospitals, Lucy Schnurer, Wesley C. Allison, Charles M. Boucek and Samuel R. Haythorn, the Journal of Industrial Hygiene, Volume 17, Number 6, November, 1935; Necropsy evidences on the relation of smoky atmosphere to pneumonia, Samuel R. Haythorn, M. D., and Harry G. Miller, American Journal of Public Health, Volume 28, Number 4, April, 1938; Dahl v. Utah, Oil Co., 262 P. 269; Strachan v. Beacon Oil Co., 251 Mass. 479; State v. Dreisoerner, 243 Mo. 217. (2) An ordinance which, without statutory authority, divides bituminous coal into five (5) classes and definitely and distinctly prohibits the use of and all traffic in coal of certain sizes, kinds or qualities is not valid for it is the settled law of this State that a municipal corporation has no power by ordinance to declare that to be a nuisance which is not such in fact, or to suppress in part or in toto any business within its limits which is not a nuisance per se. State v. Herrmann, 75 Mo. 340; State v. Loomis, 115 Mo. 307; Dunne v. Kansas City Railroad, 131 Mo. 1; St. Louis v. Heitzeberg Packing Co., 141 Mo. 375; State v. Anslinger, 171 Mo. 600; Re French, 315 Mo. 75. (a) Ordinance 41804 is class legislation in that it arbitrarily creates classes of bituminous coal from grades of identical qualities and further provides that no person shall import, sell, use or consume, offer for sale, expose for sale, exchange, deliver or transport for use or consumption, any coal of the classes interdicted by its terms. St. Louis v. Dreisoerner, 243 Mo. 217; Moler v. Whisman, 243 Mo. 571; St. Louis v. Atlantic, 244 Mo. 479; Ex parte Lerner, 281 Mo. 18. (b) It is class legislation in that it arbitrarily distinguishes between the kinds of apparatus in which coal may be burned and grants to the operators of one kind of apparatus the privilege of using grades of coal, the use of which is denied to those possessing other and different kinds of apparatus. Corrigan v. Gage, 68 Mo. 541; St. Louis v. Russell, 116 Mo. 248. (3) An ordinance which requires the user of coal to analyze its contents for a determination of the volatile matters contained therein is unreasonable and invalid. Directions for Sampling Coal for Shipment or Delivery, Technical Paper 133, Bureau of Mines, United States Department of Commerce; Methods of Analyzing Coal and Coke, Technical Paper 8, Bureau of Mines, United States Department of Commerce; Corrigan v. Gage, 68 Mo. 541; Cape Girardeau v. Riley, 72 Mo. 220; St. Louis v. Heitzeberg, 141 Mo. 375; Union Cemetery v. Kansas City, 252 Mo. 467. (a) Ordinance 41804 is unreasonable and oppressive in its terms because it imposes upon every person who would import, sell, offer for sale, expose for sale, exchange, deliver or transport coal, two (2) inches or under in size and containing more than twenty-three (23) per cent volatile matter, on a dry basis, the duties of ascertaining, before such traffic in coal, (1) whether the buyer is the owner or operator of an approved mechanical apparatus and a furnace, and (2) whether the buyer will use such coal in such mechanical apparatus and furnace. (4) The municipal assembly of St. Louis cannot constitutionally under color of abating smoke, or under the guise of the police power, prescribe and prohibit as a public nuisance all traffic in specified kinds, sizes and qualities of coal that may be burned for heating or power purposes and further designate and restrict the kinds of apparatus in which identical grades, sizes and qualities can be used or consumed, and thus deprive citizens of the lawful use of their property, for the toleration of such power on the part of the government would concede to it the right to control the private lives of every citizen and is in violation of the 14th Amendment, U.S. Constitution, and Section 30, Article II, Constitution of Missouri. Davison v. Lill, 35 S.W.2d 942; St. Louis v. King, 226 Mo. 334; St. Louis v. Dreisoerner, 243 Mo. 217. (a) When a general state law prohibiting the emission of dense black or thick gray smoke beyond reasonable limitations can be made applicable to the subject, a law of a municipality which does not allow a reasonable use of coal but assays in advance of its use to prohibit all traffic in certain kinds, sizes and qualities and further limits the types of apparatus in which identical qualities of such coal may be used is special, unreasonable, arbitrary and void, and violates Article IV, Section 53, subsection 32, of the Missouri Constitution, and Section 7442, R. S. 1939. Murnane v. St. Louis, 123 Mo. 479; Peter v. St. Louis, 125 S.W. 1134; State of Missouri v. Dower, 134 Mo.App. 352; John Bardenheier v. St. Louis, 135 S.W.2d 345; Wooley v. Mears, 226 Mo. 41; Hays v. Milling Co., 227 Mo. 288; State ex rel. Wiles v. Williams, 232 Mo. 56; St. Louis v. Dreisoerner, 243 Mo. 217; State ex rel. v. Roach, 258 Mo. 541; Hays v. Poplar Bluff, 263 Mo. 516; State ex rel. Knese v. Kinsey, 314 Mo. 80; State v. Tower, 185 Mo. 79; Taylor v. Dimmitt, 336 Mo. 330. (b) In contravention of Section 14619, R. S. 1939, ordinance 41804 prohibits the use of coal of the kind and quality mined in Missouri and denies the use of such coal to state institutions located within the St. Louis city limits and is invalid for the reason that the city has no power to enlarge, detract from or modify the acts of the legislature, regulating the same subject matter, in the least particular. St. Louis v. Heitzeberg, 141 Mo. 375; Fifty-third Annual Report of the Department of Mines and Mining, Missouri; State v. Dower, 134 Mo.App. 352; St. Louis v. Atlantic Quarry & Construction Co., 244 Mo. 479; St. Louis v. Russell, 116 Mo. 248; Corrigan v. Gage, 68 Mo. 541. (5) A municipal assembly cannot delegate its power to make laws to an administrative officer of the city government; nor can it delegate the uncontrolled power to such officers to nullify the provisions of an ordinance by granting special privileges and immunities from its provisions contrary to Article III, Section 1, Article IV, Section 53, subsections 26-32, Constitution of Missouri; Article IV, Section 1, Charter of the City of St. Louis. Ruggles v. Collier, 43 Mo. 353; Mathews v. City, 68 Mo. 115; St. Louis v. Heitzeberg, 141 Mo. 375; Neill v. Gates, 152 Mo. 585; Sedalia v. Donohue, 190 Mo. 407; Hays v. Poplar Bluff, 263 Mo. 516; St. Louis v. Allen, 275 Mo. 561.

Joseph F. Holland, City Counselor, and Oliver Senti, Associate City Counselor of St. Louis, for respondent.

(1) Regulating the use of soft coal in a populous city such as St. Louis is a legitimate exercise of the police power. (a) The legislative authorities may lawfully choose that means of preventing dense smoke. Secs. 7575, 7576, R. S. 1939; Charter of St. Louis, Paragraphs 25, 35, Sec. 1 of Art. I; State v. Tower, 185 Mo. 79; State v. C., M. & St. P Ry., 114 Minn. 122, 130 N.W. 545; City of Brooklyn v. Nassau Elec. Ry. Co., 44 A.D. 462, 61 N.Y.S. 33; Harmon v. Chicago, 110 Ill. 400; State v. Tallo, 308 Mo. 584, 274 S.W. 466; Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W.2d 447; Sec. 7576, R. S. 1939. (b) The legislative authorities can lawfully prescribe a scientific standard by which to determine whether its regulations are complied with. St. Louis v. Scheer, 235 Mo. 721, 139 S.W. 434; State v. C., M. & St. P. Ry., 114 Minn. 122, 130 N.W. 545. (c) The fact that the use or value of property as existing under the common law is thereby injuriously affected does not necessarily bring such legislative action within any constitutional prohibition. State v. C., M. & St. P. Ry. Co., 114 Minn. 122, 130 N.W....