City of Carthage v. Block

• Decision Date: 06 December 1909
• Citation: 123 S.W. 483
• Parties: CITY OF CARTHAGE v. BLOCK.
• Court: Missouri Court of Appeals

123 S.W. 483

CITY OF CARTHAGE v. BLOCK.

Springfield Court of Appeals. Missouri.

December 6, 1909.

1. MUNICIPAL CORPORATIONS (§ 625) — POLICE POWER — REASONABLENESS OF REGULATION.

An ordinance passed by a city in the exercise of its police power to preserve peace, order, and good government must be reasonable.

2. MUNICIPAL CORPORATIONS (§ 63) — GOVERNMENTAL POWERS — JUDICIAL SUPERVISION — REASONABLENESS OF ORDINANCES.

The reasonableness of ordinances passed by a city in the exercise of its police power is subject to judicial inquiry, and to a greater extent than in case of state laws.

3. MUNICIPAL CORPORATIONS (§ 589) — POLICE POWER — PUBLIC MORALS.

Municipalities are not guardians of morals as such, and hence cannot unduly interfere with the liberty of citizens by ordinances forbidding acts not unlawful or wrongful per se.

4. INTOXICATING LIQUORS (§ 10) — POLICE POWER — PUBLIC PEACE AND ORDER.

An ordinance against public drinking of intoxicating liquors on streets, alleys, and sidewalks, if properly limited, is within the police power given to cities of the third class by Rev. St. 1899, § 5834 (Ann. St. 1906, p. 2949), authorizing ordinances deemed expedient for good government and the preservation of peace and order.

5. CONSTITUTIONAL LAW (§ 83) — PERSONAL LIBERTY — DRINKING INTOXICANTS.

An ordinance making it an offense "to drink any intoxicating liquors in any quantity in any stairway, areaway, street or alley, or on any sidewalk" is an unwarrantable invasion of personal liberty because the inhibition extends to drinking in stairways or areaways on private property not open to the public.

6. MUNICIPAL CORPORATIONS (§ 111) — PROCEEDINGS — ORDINANCES — VALIDITY.

The parts of an ordinance making it an offense "to drink any intoxicating liquors in any quantity in any stairway, areaway, street or alley, or on any sidewalk" are so inseparably connected that the whole ordinance is void as an unwarrantable invasion of personal liberty.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Moses Block was convicted of violating an ordinance of the City of Carthage, and appealed to the circuit court. From a judgment for defendant, the city appeals.

J. D. Harris and Perkins & Blair, for appellant. J. H. Bailey and R. A. Mooneyham, for respondent.

NIXON, P. J.

This case originated in the police court of the city of Carthage, Mo., on a complaint filed by the city attorney charging the defendant with drinking beer on a public street and sidewalk of said city, in violation of ordinance No. 841 of the city of Carthage, which is as follows (formal parts omitted):

"An ordinance prohibiting the drinking of intoxicating liquors in stairways, areaways, streets, avenues, alleys and sidewalks of the city of Carthage.

"Be it ordained by the council of the city of Carthage as follows:

"Section 1. It shall be unlawful for any person to drink any intoxicating liquors in any quantity in any stairway, areaway, street, avenue or alley or on any sidewalk in the city of Carthage.

"Sec. 2. Any person violating any of the provisions of the foregoing section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum of not less than one dollar nor more than one hundred dollars.

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

At the trial in the police court the defendant was found guilty as charged, and an appeal was taken to the Jasper county circuit court. The case was dismissed in the circuit court on account of the ordinance being illegal; the court holding that the appellant city did not have power to enact such an ordinance, and that it was therefore void. From this decision the city appealed to the Kansas City Court of Appeals, where the judgment of the trial court was reversed by a majority opinion, Ellison, J., dissenting. A petition for rehearing was granted, and subsequently the cause was certified to this court, as provided by law. We acknowledge our indebtedness to the Kansas City Court of Appeals for their opinions rendered in this case.

The evidence in the case shows — and the fact is undisputed — that the defendant violated the ordinance at the times and in the manner charged in the complaint. His counsel say in their statement: "It was his habit for years to go to the saloon next door to his place of business, get a schooner of beer, and return to his store building, or to the sidewalk in front, and there drink the beer." With the fact conceded that the defendant used a public sidewalk in the business part of the city as a place to quench his thirst by drinking an intoxicating beverage, our sole concern is with the question of whether the ordinance subjecting him to a fine for such conduct should be upheld as a police regulation included within the charter powers of the city.

Among the powers granted by the state to cities of the third class — of which the city of Carthage is one — is the power "to enact ordinances to prohibit and suppress houses of prostitution and other disorderly houses and practices and gambling houses and all kinds of public indecencies." Section 5835, Rev. St. 1899 (Ann. St. 1906, p. 2949). And, in what is called the "general welfare clause" (section 5834, Rev. St. 1899) it is provided: "The mayor and council of each city governed by this article shall have the care, management and control of the city and its finances, and shall have power to enact and ordain any and all ordinances not repugnant to the Constitution and laws of this state, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be deemed necessary to carry such powers into effect, and to alter, modify or repeal the same." Is the ordinance in question a necessary or proper police regulation? Is it to be deemed by the courts as "expedient for the good government of the city, the preservation of peace and good order," or should it be denounced as an unwarrantable invasion of the "personal liberty" of the citizen?

Should we find that the conduct interdicted was a proper subject for police regulation, we think there can be no reasonable question of...