Campbell v. City of Frontenac

• Decision Date: 02 September 1975
• Docket Number: No. 36065,36065
• Citation: 527 S.W.2d 643
• Parties: Richard A. CAMPBELL, Plaintiff-Respondent, v. CITY OF FRONTENAC et al., Defendants-Appellants. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 643

527 S.W.2d 643

Richard A. CAMPBELL, Plaintiff-Respondent, v. CITY OF FRONTENAC et al., Defendants-Appellants.

No. 36065.

Missouri Court of Appeals, St. Louis District, Division One.

Sept. 2, 1975.

George E. Helfers, Klamen, Summers & Compton, Ronald N. Compton, Clayton, for defendants-appellants.

Shaw & Howlett, Joseph Howlett, Clayton, for plaintiff-respondent.

RENDLEN, Judge.

The City of Frontenac, defendant below, appeals from an order enjoining enforcement of its ordinance relating to parking garbage trucks within the City and from prosecuting violations of that ordinance. The defendant City also appeals from denial of its counterclaim seeking an injunction to prevent garbage and refuse trucks from parking on plaintiff's property within the City. We affirm.

Under the provisions of § 71.680 RSMo 1969 ¹ cities of the fourth class

'. . . may provide for the gathering, handling and disposition of garbage . . . accumulating in such cities . . . and may do such other and further acts as are deemed expedient for the protection and preservation of the public health, as the public health may be affected by the accumulation of . . . garbage . . .'

Similarly cities of the fourth class are authorized by § 79.370 RAMo 1969

'. . . to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health . . . and to pass ordinances for the prevention of nuisances and their abatement.'

Acting under this statutory authority, defendant, a city of the fourth class, on July 11, 1972, adopted an amendment to its general garbage Ordinance No. 407 by adding new Subsection 7 to Section 7 as follows:

'Equipment of the City Refuse Collector, or any other licensed or unlicensed garbage and rubbish collector shall not be parked, or stored in any manner on public or private property in the City of Frontenac, Missouri Violations of the provisions shall be subject to penalties as provided in Ordinance 454 of the City of Frontenac, Missouri, covering Nuisances.' (emphasis added) ²

During January, 1973, defendant ordered summons issued to customers of plaintiff who regularly parked five garbage trucks overnight at his place of business. Defendant advised plaintiff of its intention to issue summons for all subsequent violations and though not clear from the transcript, plaintiff in his brief states the City caused arrest notices to be served upon him for violations of the ordinance. Thereupon plaintiff brought this action for injunctive relief to prevent issuance of summons and to restrain enforcement of the ordinance; in response defendant by counterclaim sought to enjoin further ordinance violations. As the only witness called, plaintiff testified that for the 17 years he had allowed his customers, without charge, to park their garbage trucks on his Service Station premises within in the City and that he derived gross monthly income of approximately $1,500 from sales of goods and services to the operators of those trucks.

Enjoining the City and denying the counterclaim, the court ruled: 'That the ordinance . . . in its application to Plaintiff is illegal and without authority and that said ordinance in its application to Plaintiff is oppressive to Plaintiff's business . . .'

Our review in this court-tried case is upon both the law and the evidence as in suits of an equitable nature, with due regard for the trial court's opportunity to have judged the credibility of witnesses. Rule 73.01(3)(a), V.A.M.R. Long v. Kyte, 340 S.W.2d 623, 628(5) (Mo.1960). 'In such cases it is our duty to review the case de novo, and in doing so weigh the competent evidence and reach our own conclusions and enter such judgment as the trial court should have entered . . .' Dunning v. Alfred H. Mayer, Co., 483 S.W.2d 423, 427(1) (Mo.App.1972). Though no findings of fact or conclusions of law were requested or made by the trial court, it will be assumed that all fact issues were found in accordance with the judgment entered and the judgment will be affirmed if it is correct under any theory supported by the evidence. Lossing v. Shull, 351 Mo. 342, 173 S.W.2d 1, 5(1) (1943); Pittman v. Great American Life Insurance Co., 512 S.W.2d 857, 858(1) (Mo.App.1975). Defendant contends the ordinance was properly enacted as a lawful exercise of the City's police power to protect the health of its citizens and enforceable notwithstanding plaintiff's claim to a prior nonconforming use.

We entertain no doubt that a city of the fourth class has the power to reasonably regulate the collection, removal and disposition of garbage accumulating within its limits, either under the police power inherent in sovereignty or under the power conferred by the Missouri Constitution and applicable Statutes. Valley Spring Hog Ranch Co. v. Plagmann, 282 Mo. 1, 220 S.W. 1, 3(2) (1920); Harper v. Richardson, 222 Mo.App. 331, 297 S.W. 141, 145(5) (1927). See also 62 C.J.S. Municipal Corporations § 265 at 617; 7 McQuillen Municipal Corporations (rev.ed. 1968) § 24.245 at 86; 83 A.L.R.2d 801--802. However, the case turns on whether the questioned ordinance is a valid exercise of that regulatory power. We hold it is not. '(A) law which purports to be an exercise of the police power must not be unreasonbable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained. Under the guise of protecting the public interest the legislature may not arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations.' Lutz v. Armour, 395 Pa. 576, 151 A.2d 108, 110(3) (1959); quoting Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634, 636 (1954). See Valley Spring Hog Ranch Co. v. Plagmann, 220 S.W. at 6(11), and City of St. Louis v. Evraiff, 301 Mo. 231, 256 S.W. 489, 495(2) (en banc 1923); Boulevard Apts., Inc. v. Mayor and Council of Borough of Lodi, 110 N.J.Super. 406, 265 A.2d 838, 840(2) (1970); and Wiggins v. Town of Somers, 4 N.Y.2d 215, 173 N.Y.S.2d 579, 149 N.E.2d 869, 871(4) (1958); 62 C.J.S. Municipal Corporations § 265 at 618--619; 7 McQuillen § 24.245 at 87. In appears to be generally held that whatever measure is taken by a municipality to secure...