City of Clayton v. Nemours, 39003.

CourtUnited States State Supreme Court of Missouri
Citation182 S.W.2d 57
Docket NumberNo. 39003.,No. 39004.,39003.,39004.
PartiesCITY OF CLAYTON, a Municipal Corporation, v. PAUL R. NEMOURS, Appellant. CITY OF CLAYTON, a Municipal Corporation, v. MRS. A. NEMOURS, Appellant.
Decision Date03 July 1944

Appeal from Circuit Court of St. Louis County. Hon. John A. Witthaus, Judge.

AFFIRMED.

Keil & Keil and Frank Coffman for appellant.

(1) By ordinance 944, respondent City changed its definition of "street" from — "Every way or place of whatever nature open to the use of the public, as a matter of right, for the purpose of vehicular travel," to — "Every way or place open for vehicular travel by the public, regardless of its legal status ..." It occurs, therefore, that until such change of definition, Glen Ridge was a private way, and defendant owned it as such, even if it was then "open for vehicular travel by the public." But when the change of definition became effective, it then became a "public street of the City of Clayton," and defendant lost the proprietary rights therein and no longer owned it as a private way. Thus, without more formality or notice, defendant was deprived of this private property. This is not due process. It is violative of the organic law. Sec. 30, Art. II, Mo. Const.; Fourteenth and Fifth Amends., U.S. Const.; Paving Co. v. Ridge, 169 Mo. 376. After such change of definition, and without any hearing or inquiry or notice or other formality to determine whether in fact Glen Ridge was so used as to become a public street within the meaning of said ordinance, respondent City, by its own legislative acts, namely, the passage of ordinances Nos. 1056 and 1073, regulating traffic on its "public streets," determined that it was so used and was therefore a public street, because, by said ordinances, it authorized the placing thereon of its traffic signs and made it unlawful to park thereon, and began using it in the interest of the public. Defendant was thus deprived of the property rights in said private street without due process, in violation of the organic law. Authorities, Point (1). By legislating that Glen Ridge was so used as to make it a public street within the meaning of the ordinance, and by legislating that it was, therefore, to be used for a purpose allegedly public, that is, be used to control traffic, not only on it, but also that on Clayton road, the public highway, respondent determined such matters for itself by legislative enactment. This is violation of the Constitution of Missouri, which provides that such questions are for judicial determination. Sec. 20, Art. II, Mo. Const.; State ex rel. v. West, 272 Mo. 304; City of Kirkwood v. Venable, 173 S.W. (2d) 8; Authorities Point (1). By the acts of plaintiff, in converting Glen Ridge from a private to a public way by ordinance, and by occupying and using it in the interest, as claimed, of the public, under the claimed authority created by said ordinances, defendant's private property was "taken or damaged for public use" and defendant was divested of "the proprietary rights therein" without just compensation, all in violation of the organic law. Sec. 21, Art. II, Mo. Const.; Fifth Amend., U.S. Const.

Glen Mohler and John P. Ossenfort, Jr., for respondent.

(1) When private property is devoted to a public use which is of public consequence and affects the public at large, the owners thereby grant to the public an interest in that use, and, to the extent of the use, must submit to be controlled by the public for the public good. Munn v. People of Illinois, 94 U.S. 113, 24 L. Ed. l.c. 84; 37 Am. Juris., sec. 314. (a) All private property is held subject to the valid exercise of the police power. Kingshighway Pres. Ch. v. Sun Realty Co., 324 Mo. 510, 24 S.W. (2d) 108; See cases under (9). (2) Statutes and ordinances regulating automobile traffic apply to all streets or highways open to and used by the public, regardless of their legal status. Phillips v. Henson, 326 Mo. 282, 30 S.W. (2d) 1065; City of Clayton v. Nemours, 164 S.W. (2d) 935; Nemours v. City of Clayton, 175 S.W. (2d) 60; Crocker v. Jett, 93 S.W. (2d) 75; Commonwealth v. Gammons, 23 Pick. 201; Crossler v. Safe-Way Stores, 6 Pac. (2d) 151; Public Utilities v. Jones, 179 Pac. 745; Gruelich v. Payne, 231 N.Y. 311, 132 N.E. 100; Simmons v. State, 149 Ark. 348, 232 S.W. 597; Weirich v. State, 140 Wis. 98, 121 N.W. 652, 22 L.R.A. (N.S.) 1221; 37 Am. Juris., sec. 314; 29 C.J. 649; Hodges v. Chambers, 171 Mo. App. 563; Walton v. Railroad, 67 Mo. 56. (3) The word "public" has a dual meaning. It may refer either to the ownership of the street or, in other connotations, it refers to the use to which the street is put. 50 C.J., p. 845; City of Clayton v. Nemours, supra. (4) The words "highway" or "public street" in traffic ordinances or statutes are used "in their popular rather than their technical sense" and include all highways or streets used by the public for vehicular travel. Phillips v. Henson, 326 Mo. 282, 30 S.W. (2d) 1065; City of Clayton v. Nemours, 164 S.W. (2d) 935; Nemours v. City of Clayton, 175 S.W. (2d) 60; Crocker v. Jett, 93 S.W. (2d) 75. (5) The St. Louis Court of Appeals has held that Glen Ridge avenue is a public street within the general ordinance regulating traffic on the "public streets" of Clayton because it has been permitted by its owners to be and remain open to and used for public travel, and that the no-parking ordinance, therefore, does not impair any property rights of the defendant, Nemours, in the street. City of Clayton v. Nemours, 164 S.W. (2d) 935; Nemours v. City of Clayton, 175 S.W. (2d) 60. (6) A city of the fourth class has the power to regulate automobile traffic and to define zones where parking shall be either prohibited or limited. City of Clayton v. Nemours, 164 S.W. (2d) 935; Secs. 7172, 8395, R.S. 1939; Cavanaugh v. Gerk, 313 Mo. 375, 280 S.W. 51. (7) The power and duty of a municipality to regulate public traffic, because of the limited personnel of the police department must, of necessity, include as a governmental function the incidental power to erect as a substitute for the policeman reasonable signs and markings without which the traffic regulations would be nugatory. Prewitt v. St. Joseph, 334 Mo. 1228, 60 S.W. (2d) 916; Blackburn v. St. Louis, 343 Mo. 301, 121 S.W. (2d) 727; Auslander v. St. Louis, 56 S.W. (2d) 778; City of Clayton v. Nemours, 164 S.W. (2d) 935; Cavanaugh v. Gerk, 313 Mo. 375, 280 S.W. 51; Mengel v. St. Louis, 341 Mo. 998, 111 S.W. (2d) 5; Carruthers v. St. Louis, 341 Mo. 1083, 111 S.W. (2d) 32. (8) Abutting owners cannot complain of parking regulations or signs so long as such regulations are reasonable and necessary to control traffic, nor do such regulations deprive the owner of his rights in the street. Wilhoit v. City of Springfield, 171 S.W. (2d) 95; Nemours v. City of Clayton, supra; City of Clayton v. Nemours, supra; Harper v. Wichita Falls, 105 S.W. (2d) 743; Giesey v. Village, 11 N.Y.S. (2d) 694; People v. Propp, 15 N.Y.S. (2d) 83. (9) The Constitutions of the United States or of Missouri do not take away or impair the police power. An ordinance which is passed and enforced in the valid and reasonable exercise of the police power, therefore, does not violate the provisions of the State or Federal Constitutions. Mo. Const., Art. II, Sec. 1; Art. XII, Sec. 5; Bellerive Inv. Co. v. Kansas City, 13 S.W. (2d) 628, 321 Mo. 969; Max v. Barnard-Bolckow Drainage Dist., 32 S.W. (2d) 583; St. Louis Gunning Adv. Co. v. St. Louis, 235 Mo. 99; Clutter v. Blankenship, 144 S.W. (2d) 119; Carson v. M., K. & T.R. Co., 184 S.W. 1039.

BOHLING, C.

We answer the question here presented in the affirmative; that is: A municipality may prohibit, within reasonable limits, the parking of automobiles on a privately owned and maintained street permitted to be used and used by the public at large for vehicular traffic. No issue exists that the ordinance involved is invalid because of any arbitrary or unreasonable exercise of power, if power of enactment existed; the contention being, broadly stated, that constitutional provisions preclude the valid exercise of the attempted power. Much detail of statement may therefore be avoided; but those interested will find the facts in City of Clayton v. Nemours (Mo. App.), 164 S.W. 2d 935, and Nemours v. City of Clayton (Mo. App.), 175 S.W. 2d 60, to which reference is made. Mrs. A. Nemours (appellant-defendant in cause No. 39004) and Paul R. Nemours (appellant-defendant in cause No. 39003) are mother and son, living together in the mother's property at the intersection of Glen Ridge avenue and Clayton road (7477 Clayton road), Clayton, Missouri. A disposition of one appeal disposes of the other as the constitutive facts are similar.

The appeals are from judgments imposing a fine of $5 each for the violation of ordinance provisions of the city of Clayton prohibiting the parking of automobiles on Glen Ridge avenue (within specified limits which abut on Mrs. Nemours' property), a privately owned and maintained thoroughfare or street used by the public at large within Moorland's addition of said city. The title to said street rests in trustees for the use and benefit of the lot owners of Moorland's addition. The City does not claim that the public user rests upon any right arising from dedication, condemnation, or prescription. Its use by the public has been with the owners' knowledge and consent; and, under the evidence favorable to the City, was established to have existed and continued since about 1930. It was described as particularly heavy in the morning and evening rush hours. Glen Ridge avenue connects Clayton road and Wydown boulevard. Clayton road is heavily traveled and connects with the super highway in Forest Park leading to and from downtown St. Louis.

Subsequent to the public user of Glen Ridge avenue the City enacted on November 10, 1936, ordinance ...

To continue reading

Request your trial
17 cases
  • State v. Martin
    • United States
    • Missouri Supreme Court
    • September 14, 1953
  • City of Clayton v. Nemours
    • United States
    • Missouri Supreme Court
    • July 3, 1944
  • Strandberg v. Kansas City
    • United States
    • Missouri Supreme Court
    • May 31, 1967
    ... ... I is violated although some private person might incidentally make a profit. Arata v. Monsanto Chemical Co., Mo., 351 S.W.2d 717; City of Clayton v. Nemours, 353 Mo. 61, 182 S.W.2d 57; In re Kansas City Ordinance No. 39946, 298 Mo. 569, 252 S.W. 404, 28 A.L.R. 295. The contention is denied ... ...
  • McTeer v. Clarkson Const. Co., Inc.
    • United States
    • Missouri Court of Appeals
    • April 11, 1991
    ... ... Page 175 ...         Mark A. Thornhill, Spencer, Fane, Britt & Browne, Kansas City, for defendant-appellant ...         R. Lynn Myers, J.R. Victor, Springfield, for ... evidencing a liberal interpretation of the term "highway" in § 304.010.1 include City of Clayton v. Nemours, 353 Mo. 61, 67, 182 S.W.2d 57, 60 (1944) ("The law of the road extends to all public ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT