Century 21-Mabel O. Pettus, Inc. v. City of Jennings

• Decision Date: 21 November 1985
• Docket Number: No. 66786,66786
• Parties: CENTURY 21--MABEL O. PETTUS, INC., Respondent, v. CITY OF JENNINGS, Appellant.
• Court: Missouri Supreme Court

Page 809

700 S.W.2d 809

CENTURY 21--MABEL O. PETTUS, INC., Respondent, v. CITY OF JENNINGS, Appellant.

No. 66786.

Supreme Court of Missouri En Banc.

Nov. 21, 1985.

Rehearing Denied Dec. 17, 1985.

Lloyd E. Eaker, Clayton, for appellant.

Stephen C. Murphy, Clayton, for respondent.

RENDLEN, Judge.

The appellant, City of Jennings, by its zoning ordinance, ¹ prohibited the posting of "advertising signs" in residential districts. Employees of appellant, without permission of respondent, removed a "For Sale" sign which respondent, a licensed real estate broker, had placed on certain residential property at the direction of the owners. Suit was brought to prevent appellant from removing "For Sale" or "For Lease" signs and following hearing the court permanently enjoined their removal. Because the validity of a statute is in issue, the cause falls within the exclusive appellate jurisdiction of this Court. Mo. Const. art. V, § 3.

Section 67.317, RSMo Supp.1984, provides:

No political subdivision of this state shall enact or enforce any ordinance which forbids or restricts the right of any owner of an interest in real property or his agent from displaying on the property a sign of reasonable dimensions, as may be determined by local ordinance, advertising:

(1) The property interest is for sale, lease or exchange by the owner or his agent;

(2) The owner's or agent's names; and

(3) The owner's or agent's address and telephone number.

Respondent contended, and the Circuit Court found, that appellant's ordinance was contrary to the terms of § 67.317, and violative of respondent's rights to free speech under U.S. Const. amend. I and Mo. Const. art. I, § 8. Appellant concedes that its ordinance, as it relates to "For Sale" and "For Lease" signs, contravenes the terms of § 67.317 but in turn asserts the invalidity of that statutory section under the provisions of Mo. Const. art. III, §§ 28, 40(30); appellant also disputes respondent's contention as to denial of the right to free speech.

I.

Article III, § 40, of the Missouri Constitution provides in pertinent part:

The general assembly shall not pass any local or special law:

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(30) where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject.

Appellant maintains that § 67.317 is a special law because it applies solely to signs advertising the sale, lease or exchange of real property, and does not apply to other advertising signs and as such is void as a special law under Article III, § 40(30).

Examining this contention it should first be noted that "[i]t is firmly established that a constitutional question must be presented at the earliest possible moment 'that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.' " Meadowbrook Country Club v. Davis, 384 S.W.2d 611, 612 (Mo.1964); Securities Acceptance Corp. v. Hill, 326 S.W.2d 65, 66 (Mo.1959). Appellant has failed to raise the constitutional claim that § 67.317 is a special law and thus void under Article III, § 40(30) in the pleadings or oral argument before the trial court. The contention is squarely presented on appeal but it would seem not to have been presented at the earliest possible moment that good pleading and orderly procedure would admit. Appellant points out that it did raise the charge of § 67.317 being a "special law" in its brief submitted to the trial court, though it did so without citing Article III, § 40(30). The section of the constitution claimed to have been violated should be specified. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376 (banc 1949); Independent Gravel Co. v. Arne, 695 S.W.2d 914, 916 (Mo.App.1985). But while appellant might not have properly presented the issue to the trial court, had he done so it would have been to no avail for the contention is not well taken. Section 67.317 is not a special law and does not stand in conflict with Mo. Const. art. III, § 40.

It has been suggested that there are two criteria for determining whether a law is special: first, the classification must be reasonable and not arbitrary; second, the privilege or liability created by the law must apply to all entities within the classification. Menorah Medical Center v. Health & Educational Facilities Auth., 584 S.W.2d 73, 81 (Mo. banc 1979). "[A] law is not special in the constitutional sense if it applies alike to all of a given class provided the classification thus made is not arbitrary or without a reasonable basis." Marshall v Kansas City, 355 S.W.2d 877, 884 (Mo. banc 1962).

State ex rel. Public Defender Commission v. County Court of Greene County, 667 S.W.2d 409, 412 (Mo. banc 1984).

While § 67.317 creates certain classifications, relative to advertisement of real property interests in political subdivisions of Missouri, the law applies to all political subdivisions of the state, all real property interests, and all signs of reasonable dimensions advertising real property for sale, lease or exchange. This is not a case like State ex rel. Public Defender Commission, 667 S.W.2d 409, cited by appellant, wherein the relevant statute, § 600.010, RSMo 1978 (repealed L.1982), contained provisions applicable to every judicial circuit of Missouri having a population of not less than 75,000, except that it specifically exempted the Thirty-first Judicial Circuit. State ex rel. Public Defender Commission, 667 S.W.2d at 411.

Further, contrary to appellant's argument, the classification of signs of reasonable dimensions advertising real property for sale, lease or exchange is neither unreasonable nor arbitrary. ² A party challenging a classification generally is deemed to "carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." State ex inf. Barrett v. Hedrick, 294 Mo. 21, 241 S.W. 402, 420 (banc 1922) (quoting Stewart v. Brady, 300 Ill. 425, 133 N.E. 310, 314-15 (1921)). The essence of appellant's complaint is that § 67.317 does not apply to all advertising signs, but only to those advertising the sale, lease or exchange of real estate. However, the sale or leasing of real estate directly relates to the situs of the property involved. Though commercial activities are often restricted by zoning regulations in residential districts, the homes in such districts from time to time come on the market and the "commercial" transactions (i.e. sale or lease) necessarily involve and typically occur at least in part at the site. Thus, the legislature has carved a reasonable exception to advertising signs for that class of transactions. It has limited the content of the advertising material and authorized the local municipality to control the sign's dimensions. A municipality derives its governmental powers from the state and exercises generally only such governmental functions as are expressly or impliedly granted it by the state. Sutton v. Fox Missouri Theatre Co., 336 S.W.2d 85, 92 (Mo.1960). In essence appellant complains that the state refuses to grant it the power to regulate real estate signs but the legislative determination so to do is neither arbitrary nor...