City of Clayton v. Nemours

• Decision Date: 06 October 1942
• Docket Number: No. 26134.,26134.
• Citation: 164 S.W.2d 935
• Parties: CITY OF CLAYTON, (PLAINTIFF), APPELLANT, v. PAUL R. NEMOURS, (DEFENDANT), RESPONDENT.
• Court: Missouri Court of Appeals

164 S.W.2d 935

CITY OF CLAYTON, (PLAINTIFF), APPELLANT, v. PAUL R. NEMOURS, (DEFENDANT), RESPONDENT.

No. 26134.

St. Louis Court of Appeals, Missouri.

Opinion filed October 6, 1942.

Motion for rehearing overruled October 20, 1942.

Petition for Writ of Certiorari denied by Supreme Court, November 12, 1942.

Appeal from Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.

REVERSED AND REMANDED.

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

(1) Munn v. People of Illinois, 94 U.S. 113, 24 L. Ed. 84; 37 Am. Juris., sec. 314; Morrison v. Morey, 146 Mo. 543; 11 Am. Juris. sec. 270; Kingshighway Presbyterian Church v. Sun Realty Co., 24 S.W. (2d) 108, 324 Mo. 510. (2) Crocker v. Jett (Mo. App.), 93 S.W. (2d) 75; Phillips v. Henson (Mo.), 30 S.W. (2d) 1065, 326 Mo. 282; 50 Corpus Juris., pp. 845-846; Sec. (2), B. (3) The Legislature has granted power to the City of Clayton to regulate automobile traffic within its limits. Secs. 8395, 7172, Mo. R.S. 1939. (4) The ordinances of appellant defining "streets and highways" make the traffic ordinances applicable to Glen Ridge when opened to and used for public travel. It is a public street because its owners have devoted it to a public use. Ords. Nos. 647, 944, 1056, 1073 See cases under (5). (5) A street, road or driveway, not dedicated or laid out by the proper authorities as a public street, if opened to and used for public travel, is subject to traffic regulations under the police power. Commonwealth v. Gammons (Mass.), 23 Pick. 201; Grulich v. Paine, 231 N.Y. 311, 132 N.E. 100; Phillips v. Henson, 326 Mo. 282, 30 S.W. (2d) 1065; Crossler v. SafeWay Stores (Idaho Sup., 1931), 6 Pac. (2d) 151; Public Utilities v. Jones (Utah Sup., 1919), 179 Pac. 745; Crocker v. Jett, supra. (6) St. Louis v. Bender, 248 Mo. 113, 117; St. Charles v. Hackman, 133 Mo. 634; Kirkwood v. Autenrieth, 11 Mo. App. 515; Poplar Bluff v. Hill, 92 Mo. App. 17; Springfield v. Starke, 93 Mo. App. 70. This for the reason that: (a) The statute provides that in civil suits from which an appeal is not prohibited by the Constitution, "any party aggrieved" may appeal from the judgment of the Circuit Court. Sec. 1184, Mo. R.S. 1939. (b) In all of the decisions of the appellate courts of this State, prosecutions for violation of city ordinances are uniformly held to be civil and not criminal causes. St. Louis v. Bender, 248 Mo. 113; St. Louis v. Pope (Mo. App.), 129 S.W. (2d) 106; St. Charles v. Hackman, 133 Mo. 634; Cape Girardeau v. Smith (Mo. App), 61 S.W. (2d) 231; King City v. Duncan, 238 Mo. 513; Village of Marble Hill v. Caldwell (Mo. App.), 178 S.W. 226; Gallatin v. Tarwater, 143 Mo. 40; Mexico v. Harris, 115 Mo. App. 707; City of Caruthersville v. Palsgrove, 155 Mo. App. 564; City of Mexico v. Harris, 115 Mo. App. 707; Gallatin v. Tarwater, 143 Mo. 40; City of Moberly v. Kervin, 234 S.W. 514; Poplar Bluff v. Hill, 92 Mo. App. 17; Springfield v. Starke, 93 Mo. App. 70; Hannibal v. Dudley, 158 Mo. App. 261; Grant City v. Simmons, 167 Mo. App. 183; East Prairie v. Greer, 186 S.W. 952; St. Louis v. Ameln, 235 Mo. 669; Ex parte Corvey, 287 S.W. 879; Village of Koshkonong v. Boak, 158 S.W. 874; De Soto v. Brown, 44 Mo. App. 148; St. Louis v. Knox, 74 Mo. 79; Marshall v. Standard, 24 Mo. App. 192; Ex parte Hollwedell, 74 Mo. 395. (c) The appellate procedure in the Courts of Appeal, in causes involving the violation of city ordinances, is according to procedure in the appeal of civil and not criminal cases. Caruthersville v. Palsgrove, 155 Mo. App. 564; Hannibal v. Dudley, 158 Mo. App. 261; City of Ozark v. Redman, 113 S.W. (2d) 828. (d) The constitutional provision against double jeopardy applies to criminal causes, and does not apply to bar a prosecution by the State for the same offense for which a defendant was convicted under a city ordinance. Art. II, sec. 23, Mo. Constitution; State v. Gustin, 152 Mo. 108. Nor is an acquittal on prosecution by the State a bar to prosecution under a city ordinance, the latter being a civil, and not a criminal, case. Canton v. McDonald, 188 Mo. 207. (e) A crime is an act committed in violation of public law. A violation of a town or city ordinance is not criminal, because such laws are not coextensive with the boundaries of the State. Ex parte Hollwedell, 74 Mo. 40. (f) Sections 7140 and 7363, Mo. R.S. (1839), referred to by respondent, relate to procedure on appeal from the police court to the circuit court. By their terms these sections have no application to appeals from the circuit court to the appellate courts, which are governed exclusively by section 1184, supra. See Sees. 7140 and 7343.

Keil & Keil and Frank Coffman for respondent.

(1) Secs. 7140, 7363, R.S. Mo. 1939; City v. Allen (Mo.), 175 S.W. 933; Noll v. Alexander, 282 S.W. 739; King City v. Duncan, 238 Mo. 513; Tarkio v. Lloyd, 109 Mo. App. 171; Marble Hill v. Caldwell, 200 S.W. 670; Wilks v. Caruthersville, 162 Mo. App. 492, 499; Ex parte Lerner, 218 S.W. 331, 333, 334; Sections 4142 and 4143, R.S. Mo. 1939; State v. Early, 49 S.W. (2d) 1060; State v. Hayes, 220 Mo. 1, 4. (a) It is not to be presumed that the State would (nor could it) delegate to a municipality a greater right than it, itself, had. Ex parte Lerner, 218 S.W. 331, 333. (b) There being no right of appeal, this court acquired no jurisdiction in this cause. State v. Hayes, 220 Mo. 1, 4. (2) A municipal corporation, not being itself sovereign, but a mere creature of statute, possesses only such powers as the State has specially conferred upon it, either by special charter or general law. Power Corporation v. City, 156 S.W. (2d) 913, 917; State ex rel. v. Anderson, 101 S.W. (2d) 530; State ex rel. v. McWilliams, 355 Mo. 816, 74 S.W. (2d) 363; City of St. Louis v. Dreisoerner, 243 Mo. 217; City v. Quarry & Construction Co., 244 Mo. 479; Webb City v. Aylor, 163 Mo. App. 155, 163; Washington v. Mueller, 287 S.W. 856; Construction Company v. Hauessler, 201 Mo. 400; Peters v. St. Louis, 226 Mo. 62; State v. Butler, 178 Mo. 272, 313; 43 C.J. 186, 188; Ex parte Tarling, 241 S.W. 929, 933. (3) Such powers will not be enlarged by a liberal construction of the statute. St. Louis v. Dreisoerner, 243 Mo. 217, 223; Hays v. Poplar Bluff, 263 Mo. 516, 531, 532; State ex rel. v. McWilliams, 74 S.W. (2d) 363; Fort Scott v. Brokerage Company, 117 Fed. 51, 54; State v. Power Company, 281 S.W. 709; State v. Clifford, 228 Mo. 194; St. Louis v. Cool, 228 Mo. 209; St. Louis v. Real Estate Company, 180 Mo. 309; 43 C.J. 195. (4) Any fair, reasonable doubt concerning the existence of a power is resolved by the courts against the corporation and the power is denied. St. Louis v. Dreisoerner, 243 Mo. 217, 223; City v. Realty Company, 259 Mo. 126; Hays v. Poplar Bluff, 263 Mo. 516, 531, 532; State ex rel. v. Orear, 210 S.W. 392, 395; State ex rel. v. McWilliams, 74 S.W. (2d) 363; Fort Scott v. Brokerage Company, 117 Fed. 51, 54. (5) A municipal corporation possesses and can only exercise the following powers: (1) Those granted in express words; (2) those necessarily or fairly implied in or incident to the power expressly granted; (3) those essential to the declared objects and purposes of the corporation — not simply convenience, but indispensable. St. Louis v. Dreisoener, 243 Mo. 217, 223; State ex rel. v. McWilliams, 74 S.W. (2d) 363; Hays v. Poplar Bluff, 263 Mo. 516, 531, 532. (6) St. Louis v. Dreisoener, 243 Mo. 217, 223. (7) In this case the statute by virtue of which the City of Clayton was created, Article IX, Chapter 38, is its Charter. Webb City v. Aylor, 163 Mo. App. 155, 163; Washington v. Mueller, 287 S.W. 856, 860. (8) Section 8395, R.S. 1939, providing that municipalities may "regulate the parking of vehicles on streets," does not authorize appellant city to prohibit parking on private streets. Baker v. Hasler, 274 S.W. 1095, 1096. (9) And this court has said that a city has no authority to prohibit parking on private property. Ex parte Corvey, 287 S.W. 879. (10) City v. Hill, 116 Mo. 527; Ex parte Tarling, 241 S.W. 929; St. Louis v. Dreisoerner, 243 Mo. 217; State v. Gas Light Company, 102 Mo. 472; Ex parte Lerner, 281 Mo. 18; St. Louis v. Dairy Company, 213 Mo. 148; St. Louis v. Klausmeier, 213 Mo. 119. (11) For this reason such corporation cannot by ordinance deprive any person of property without due process of law. City v. Hill, 116 Mo. 527; Ex parte Smith, 135 Mo. 223; Rendering Company v. Behr, 77 Mo. 91. (12) State ex rel. v. McKelvey, 256 S.W. 474; City v. Hill, 116 Mo. 527. (13) City v. Hill, 116 Mo. 527; City v. Liebi, 252 S.W. 404. (14) The term "street" has a definite and well-recognized meaning in law. A "street" is a road or public way in a city, town or village, no matter by what name it may be called. 44 C.J. 882; Elliott on Roads & Streets (4 Ed.), Chap. II Sec. 19, p. 20. (15) The term "street" does not include a "private road." 44 C.J. 882; Collier v. Paving & Supply Co., 180 Mo. 362, 387, 388. (16) "A private way" is one over which the public have no general right of passage. Elliott on Roads & Streets (4 Ed.), sec. 5, p. 6. (17) It makes no difference that the public are permitted to use it. Where a "way" is laid out and used as a private way, the mere fact that the public also make use of it without objection will not make it a public way. Elliott on Roads & Streets (4 Ed.), sec. 5, p. 6; Marshall v. City of Springfield, 221 S.W. 17, 18. (18) A private way cannot be taken for a public way unless it is condemned for public use and paid for, or is made a public way by prescription or dedication. City of St. Louis v. Breuer, 223 S.W. 108, 110. (19) Designating a "private way" in an ordinance as a "street" or "public highway," does not make it such. Alberts v. St. Louis, 268 Mo. 349, 358, 359. (20) And by the use of the term "street" or "streets" in an ordinance means a public way and does not mean a private way whose title is vested in trustees for the use of certain property owners. And this is true even...