City of Lancaster v. Reed

• Citation: 207 S.W. 868
• Decision Date: 06 January 1919
• Docket Number: No. 13093.,13093.
• Parties: CITY OF LANCASTER v. REED.
• Court: Court of Appeal of Missouri (US)

207 S.W. 868

CITY OF LANCASTER v. REED.

No. 13093.

Kansas City Court of Appeals. Missouri.

January 6, 1919.

Appeal from Circuit Court, Schuyler County; M. M. Pettingill, Judge.

"Not to be officially published."

Complaint by the City of Lancaster against Wes Reed, for violation of an ordinance. Motion to quash complaint sustained, and the City appealed to the Supreme Court, which in its decision (201 S. W. 95) transferred the cause to the Kansas City Court of Appeals. Affirmed.

Claude C. Fogle, of Lancaster, for appellant.

Higbee & Mills, of Kirksville, for respondent.

BLAND, J.

A complaint was fled against defendant by plaintiff city seeking to convict him under one of its ordinances. Section 1 of this ordinance provides that any person who shall be guilty of an act of public indecency shall be guilty of a misdemeanor. Section 2 defines such an act, and, among other things, provides that whenever two or more persons of opposite sex are associated together upon the sidewalk and streets of the city, one of them being a person of ill repute, such an association is an act of indecency within the prohibition of the ordinance.

The complaint charges defendant with being on the street of said city associating with Edna Geery, a female of ill repute, contrary to said ordinance. Defendant filed a motion to quash the complaint, alleging, among other things, that the "ordinance invades the personal rights of the citizen, and the complaint is therefore void." The motion to quash was sustained by the lower court, and the city appealed to the Supreme Court; that court found that the constitutional question sought to be raised by the motion to quash was not properly raised, and transferred the case to this court. The Supreme Court in its opinion (see City of Lancaster v. Heed, 201 S. W. loc. cit. 95) states that the allegation in the motion to quash that the ordinance "invades the personal rights of the citizen, and the complaint is therefore void," raises the point that the ordinance is "unreasonable, or oppressive, or ultra vires, or repugnant to some general statute or contrary to some general rule of law."

It is therefore incumbent upon us to determine whether or not the ordinance under which the conviction is sought is unreasonable. The city of Lancaster is city of the fourth class, and section 9371, R. S. 1909, provides that such cities have "power to enact and ordain any and all ordinances not repugnant to the Constitution and laws of this state, * * * the preservation of peace and good order." Section 9372 R. S. 1909, gives to such cities power to enact ordinances to suppress "all kinds of public indecencies."

Municipal corporations are prima facie the sole judges of the necessities of their ordinances, and the courts will not ordinarily review the reasonableness of such ordinances when they are passed in compliance with authority given by the state. City of Windsor v. Bast, 199 S. W. 722; City of Hannibal v. Mo. & Kans. Telephone Co., 31 Mo. App. 23; City of St. Louis v. Green, 70 Mo. 562. However, courts should declare an ordinance void if upon inspection it appears to be unreasonable. City of Windsor v. Bast, supra; City of St. Louis v. St. Louis Theater Co., 202 Mo. 690, 100 S. W. 627. The ordinance seeks to make it a complete offense for one person to associate with at other of opposite sex upon the public streets or sidewalks of the city if either person is one of ill repute, without requiring that there be any commission of any offense against the law, or any attempt to commit such an offense.

We have no hesitancy, in view of the many decisions of our Supreme Court on the point, in declaring the ordinance unreasonable and void as infringing upon the rights of personal liberty. In the case of the City of St. Louis v. Fitz, 53 Mo. 582, the defendant was convicted under an ordinance of the city of St. Louis, charging him with violating such ordinance "by knowingly associating with persons having a reputation of being thieves or prostitutes." The court in that case declared the...