Blind v. Brockman

• Decision Date: 03 October 1928
• Docket Number: No. 27101.,27101.
• Citation: 12 S.W.2d 742
• Parties: CHARLES BLIND ET AL. v. PHILIP H. BROCKMAN ET AL., Appellants.
• Court: Missouri Supreme Court

12 S.W.2d 742

CHARLES BLIND ET AL. v. PHILIP H. BROCKMAN ET AL., Appellants.

No. 27101.

Supreme Court of Missouri. Division One.

October 3, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.

REVERSED.

Julius T. Muench and Oliver Senti for appellants.

(1) The title to the Act of April 3, 1923, is not defective, and sufficiently expresses the subject with which it deals. State v. Tallo, 308 Mo. 594. (2) The Act does not violate Sec. 53 of Art. 4, of the Constitution. Soft-drink parlors, as defined in the statute, are a menace to the enforcement of the law. State v. Tallo, supra. Soft-drink parlors, as defined in the statute, are therefore an appropriate class in reference to which the General Assembly may enact laws. (a) In a classification for governmental purposes, there can be no exact exclusion or inclusion of persons and things; it is sufficient to satisfy the demand of the Constitution if a classification is practical and not palpably arbitrary; the selection, in order to become obnoxious to the Constitution, must be arbitrary and unreasonable, and not merely possibly, but clearly and actually so; and the Legislature, in the exercise of its powers to classify, is not required to trace with a hair line the boundaries of the class to which the resulting enactment shall apply. Hawkins v. Smith, 242 Mo. 688. (b) A state may classify with reference to the evil to be prevented, and if the class discriminated against is, or reasonably might be, considered to define those from whom the evil is mainly to be feared it may properly be picked out. Patsone v. Pennsylvania, 232 U.S. 138; Cooley's Cons. Lim. (8 Ed.) 813. (c) The Legislature may direct its law against what it deems evil as it exactly exists, without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed. Central Lumber Co. v.v. South Dakota, 226 U.S. 157; Rosenthal v. New York, 226 U.S. 260. (3) Much may be done by a State under its police power, which many regard as an unwise execution of governmental authority. Courts have no authority to overthrow such legislation simply because they do not approve of it or because they deem it unwise or inexpedient. Broadnax v. Missouri, 219 U.S. 292; Mugler v. Kansas, 123 U.S. 623; Missouri v. Mo. Pac. Railroad Co., 242 Mo. 354; Ex parte Roberts, 166 Mo. 212; McCullough v. Maryland, 4 Wheat. 316. The fact that the removal of the screens and blinds would cause a loss to plaintiffs cannot deprive the State of the right to exercise its police power. (4) The Fifth Amendment applies exclusively in restriction to Federal power, and has no application to the States. Capital City Dairy Co. v. Ohio, 183 U.S. 238.

Oakley & Frank and E.G. Davidson for respondents.

Sections 6 and 7, Laws 1923, pp. 238 and 239, are unconstitutional (1) Said sections violate the provisions of Article 4, sec. 53, pars. 24, 26 and 32, in that they are special or class legislation, the classification being arbitrary and without reasonable or legal basis, and said sections exempt from the operation of the act persons or firms in the same line of business. State v. Miksicek, 225 Mo. 561; State v. Empire Bottling Co., 261 Mo. 300; State v. Baskowitz, 250 Mo. 82. (2) Said sections violate the provisions of Art. 5 and Sec. 1 of Art. 14 of the Amendments to the Constitution of the United States, and Sec. 30, Art. 2, of the Constitution of Missouri, in that they constitute the taking of property without due process of law, abridge the privileges or immunities of the plaintiffs as citizens of the United States, and deny them the equal protection of the law. State v. McKelvey, 301 Mo. 1; City of St. Louis v. Evraiff, 301 Mo. 231. (3) The police power of a state ends where public interests are not beneficially served thereby. Gunning Co. v. St. Louis, 235 Mo. 200; St. Louis v. Dreisoerner, 243 Mo. 223; State v. McKelvey, 301 Mo. 1; City of St. Louis v. Evraiff, 301 Mo. 231. (4) Said sections of said act, and all the provisions thereof, are void, and in violation of Sec. 28, Art. 4, of the Constitution of Missouri, in that they contain more than one subject, and the same is not expressed in the title. State v. Crites, 277 Mo. 194; State ex rel. v. Hackman, 292 Mo. 32.

LINDSAY, C.

The respondents, as plaintiffs below, one hundred and sixty-two in number, proprietors of soft-drink stands in the city of St. Louis, brought this suit to enjoin defendants, respectively, President of the Board of Police Commissioners, Chief of Police, and Chief of Detectives, of the city of St. Louis, from enforcing the provisions of the act approved April 3, 1923 (Laws 1923, pp. 236 to 247), and especially the provisions of Sections 6 and 7 of said act; and to restrain the defendants from interfering with the plaintiffs in the conduct of their business as proprietors of soft-drink stands as defined by the sections just mentioned. Section 6 of the act defines soft-drink stands; and by Section 7, the maintenance of screens, blinds or partitions therein obstructing the view from the sidewalk, is prohibited. These sections are as follows:

"Sec. 6. TERM `soft-drink stand' construed. — The term `soft-drink stand' as used in this act shall be held and construed to include and refer to every place or portion thereof in which is conducted what is commonly called a `soda fountain,' or `soft-drink counter' where soda waters, near beers, and other non-alcohol beverages are permitted to be sold. This section shall not be construed to include any department store, drug store, hotel, restaurant, or other place where a soft-drink stand is simply an adjunct to the regular business.

"Sec. 7. Obstruction in soft-drink stand prohibited. — It shall be unlawful for any person having or conducting a soft-drink stand, as in this act defined, to erect, or maintain, or to permit to be erected, or maintained, in his place of business, or as a part thereof, any partition, screen, blind, or other article, or thing, that will obstruct a free and open view at all times and under all conditions, from the sidewalk, or street, running alongside, or in front of such soft-drink stand, and from which patrons thereof enter the room, or place, in which such soft-drink stand is conducted. This section shall not be construed to include any department store, drug store, restaurant, or other place where a soft-drink stand is simply an adjunct to the regular business."

Section 22 of the act defines the punishment for violation of its provisions, and Section 16 defines the duties of enforcement officials, to arrest persons found violating the provisions of this statute, and to make complaint thereof to the prosecuting attorney of the county.

The plaintiffs alleged the erection and maintenance at great expense, and for a long time before the passage of the act, of partitions, blinds, screens and booths as necessary to the successful conduct of their business; that defendants had warned them not to erect or maintain such blinds, screens and the like after June 23, 1923, and had threatened to arrest and prosecute plaintiffs or any of their employees acting in violation of these provisions; and, that defendants had arrested and prosecuted, and threatened to continue to arrest and prosecute, four persons named among the plaintiffs. Sections 6 and 7 were alleged to be unconstitutional as violative of certain designated provisions of the State and Federal constitutions, to be hereafter mentioned. Substantially the allegations thereunder are that Sections 6 and 7 seek to regulate trade, grant to corporations, associations or individuals special or exclusive rights, and are class legislation, such classification being arbitrary and without reasonable or lawful basis; that said provisions are oppressive, unreasonable and discriminatory, and far in excess of the regulations necessary to the proper protection of the welfare, peace, health, safety and morals of the inhabitants of the city of St. Louis and of the State; that they are not general or uniform upon the classes to which they apply or should apply; that they are discriminatory in exempting drug stores, restaurants and other designated places where a soft-drink stand is simply an adjunct to the regular business, and that they were enacted and designed, unjustly and illegally, to discriminate against the lawful business in which plaintiffs are engaged, and deprive them of their property and business. The act in respect to Sections 6 and 7, in their relation to other provisions, is also alleged to be violative of Section 28, Article IV, of the State Constitution in that it contains more than one subject, and the same is not expressed in the title. The title designates it as "An Act to provide for the exercise of the police powers of the state by and through prohibiting the manufacture, possession, transportation, sale and disposition of intoxicating liquors; defining soft drink bars;" followed, by recital of numerous particulars. Section 1 of the act is as follows:

"Section 1. — Construing act, and its provisions. — This entire act is hereby declared, and shall be deemed and construed, to be an act of the General Assembly of the State of Missouri, for the protection of the economic welfare, peace, health, safety, and morals, of its inhabitants, and all of the provisions of this act shall be liberally construed for the accomplishment of said purposes, or any thereof."

Ten of the plaintiffs testified upon the trial. Their testimony was that they operated soft-drink parlors, sold soft drinks, cigars, cigarettes, candy and sandwiches, and some of them sold lunches; that they maintained blinds, screens, partitions and the like, excluding the open view from the side walk or street, in such manner as the terms of the act forbade. A witness called by plaintiffs testified as to the value of the fixtures, in eleven of the places belonging to...