City of Richmond Heights v. Richmond Heights Memorial Post Benev. Ass'n

• Decision Date: 12 July 1948
• Docket Number: 40817
• Parties: City of Richmond Heights, a Municipal Corporation, Respondent, v. Richmond Heights Memorial Post Benevolent Association, a Corporation, John Morrison and A. Wade Schwatalla, President and Secretary Respectively of the Richmond Heights Memorial Post Benevolent Association, a Corporation, Appellants
• Court: Missouri Supreme Court

213 S.W.2d 479

358 Mo. 70

City of Richmond Heights, a Municipal Corporation, Respondent, v. Richmond Heights Memorial Post Benevolent Association, a Corporation, John Morrison and A. Wade Schwatalla, President and Secretary Respectively of the Richmond Heights Memorial Post Benevolent Association, a Corporation, Appellants

No. 40817

Supreme Court of Missouri

July 12, 1948

Motion for Rehearing or to Transfer to Banc Overruled September 13 1948.

Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.

Affirmed.

A. U Simmons and Edwin Rader for appellants.

(1) Although, the general scope of a zoning ordinance may be valid, when it is applied to any particular parcel of land the question as to whether such ordinance violates any constitutional privilege is dependent upon the particular facts of each case. Glencoe Lime & Cement Co. v. St. Louis, 108 S.W.2d 143, 341 Mo. 689; Taylor v. Schlemmer, 183 S.W.2d 913, 353 Mo. 687; Smith v. Barrett, 81 Utah 522, 20 P.2d 864; People ex rel. Kirby v. Rockford, 363 Ill. 531, 2 N.E.2d 842; Hedgecock v. People, 98 Col. 522, 57 P.2d 891; Strain v. Mims, 123 Conn. 275, 193 A. 754. (2) The court erred in enjoining the use of appellants' property as a meeting place because in applying the zoning ordinance to this particular piece of property no consideration was taken of the change of the type of neighborhood making such injunction arbitrary, inequitable, and a capricious exercise of the zoning power of the respondent city making the ordinance unreasonable and void as to the appellants. Glencoe Lime & Cement Co. v. St. Louis, 108 S.W.2d 143, 341 Mo. 689; Mueller v. C. Hoffmeister Undertaking & Livery Co., 343 Mo. 430, 121 S.W.2d 775; Tews v. Woolhiser, 352 Ill. 212, 185 N.E. 827; City of Youngstown v. Kahn Bros. Bldg. Co., 112 Ohio St. 654, 149 N.E. 842, 43 A.L.R. 662; State ex rel. Scandrett v. Nelson, 240 Wis. 438, 3 N.W.2d 765; Joyce v. Dobson, 4 N.Y.S. 648. (3) Enforcement of the zoning ordinance of the respondent city is, when applied to the appellants' property, and to the facts of this case, arbitrary and unreasonable and therefore unconstitutional and unenforceable. U.S. Constitution, 14th Amendment; Art. I, Sec. 10, Missouri Constitution of 1945; Women's Kansas City St. Andrew Soc. v. Kansas City, Mo., 58 F.2d 593; Village of University Heights v. Cleveland Jewish Orphans' Home, 20 F.2d 743; Jones v. Los Angeles, 211 Cal. 304, 295 P. 14; Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; People ex rel. Kirby v. Rockford, 363 Ill. 531, 2 N.E.2d 842; Koch v. Toledo, 37 F.2d 336; 19 A.L.R. 1395 (Annotation); 33 A.L.R. 287 (Annotation); 38 A.L.R. 1496 (Annotation); 43 A.L.R. 668 (Annotation); 54 A.L.R. 1030 (Annotation); 86 A.L.R. 659 (Annotation); 117 A.L.R. 1117 (Annotation). (4) The trial court erred in finding that the appellant used its property as a hall or recreation building and the courts enjoining the use of the appellants' property, which was used solely as a place of peaceable assembly, violated the constitutional right of the appellants to so peaceably assemble. Constitution of U.S., Amendment I; Missouri Constitution of 1945, Art. I, Sec. IX; 11 Am. Jur., sec. 325, p. 1118; Commerce Trust Co. v. Foulds, 273 S.W. 229, 221 Mo.App. 317; Bankers Mortg. Co. v. Osborne, 24 S.W.2d 215.

Louis A. Robertson for respondent.

(1) There is no evidence that the ordinance is clearly unreasonable and arbitrary and the courts will not interfere and submit their judgment for that of the lawmaking body, unless a zoning ordinance is clearly unreasonable and arbitrary. State ex rel. Oliver Cadillac v. Christopher, 298 S.W. 720; Taylor v. Schlimmer, 183 S.W.2d 931; Ryan v. Warrensburg, 117 S.W.2d 303; Glencoe Lime & Cement Co. v. St. Louis, 108 S.W.2d 143; Chapman v. American Legion, 147 A.L.R. 585; 4 Am. Jur. p. 456. (2) A general plan of zoning will sustain a particular restriction, when that restriction is part of the general plan. Women's Kansas City St. Andrew Society v. Kansas City, 58 F.2d 593. (3) The right of peaceable assembly can be regulated as to place of meeting, and can be denied in public places. Constitution of the United States, Amendment I; Missouri Constitution of 1945, Art. I, Sec. IX; Coughlin v. Chicago Park District, 4 N.E.2d 1, 364 Ill. 90; People on Complaint of Neiman v. McWilliams, 22 N.Y.S. (2d) 571; Matthews v. First Christian Church, 197 S.W.2d 617. (4) A constitutional question not having been properly raised, the Supreme Court does not have exclusive jurisdiction to hear and determine this appeal, and said appeal, if not dismissed on other grounds, should be transferred to the St. Louis Court of Appeals. Constitution of Missouri, 1945, Art. V, Sec. 3; Superior Press Brick Co. v. St. Louis, 152 S.W.2d 178; State ex rel. Volker v. Kirby, 345 Mo. 801, 136 S.W.2d 319; Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874; Rule 3.23 of the Supreme Court of Missouri.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

The City of Richmond Heights instituted this proceeding to enjoin and restrain a violation of its zoning ordinance. The defendants are the Richmond Heights Memorial Post Benevolent Association and its officers. The benevolent association is the trust and title holding organization of the Richmond Heights Memorial Post No. 433 of the American Legion (36 U.S.C.A., Secs. 41-45) whose members automatically become members of the association. The court found that the defendants were using their property at 7303 Lindbergh as a "hall, meeting place, and recreation building" in violation of the ordinance and permanently enjoined its use for any purpose other than those purposes permitted in a "'B' Single Family Dwelling District."

Upon this appeal by the association we are confronted with the preliminary problem of the respondent's motion to dismiss the appeal because (1) the appellant has failed and refused to make the concise jurisdictional statement required by our rules (Supreme Court Rules 1.08, 1.15) and (2) because we do not have jurisdiction of the appeal, the appellant having failed to properly raise and preserve its objections that the ordinance is unconstitutional. Const. Mo., Art. V, Sec. 3; State ex rel. Volker v. Kirby, 345 Mo. 801, 136 S.W. (2) 319.

The appellants' statement is not preceded by a proper jurisdictional statement. However pages two and three of their statement of facts sets forth that the ordinance is unconstitutional in three respects and the whole of their brief and argument is devoted to the constitutionality of the ordinance. In their amended answer the appellants pleaded that the ordinance was unconstitutional in certain specified respects. Those were in fact the questions litigated and tried and they were all assigned as error in the motion for a new trial, perhaps not as well and accurately as they should have been set forth but sufficiently, as will appear, for the purposes of this appeal. Furthermore this cause was transferred here by the St. Louis Court of Appeals (Const. Mo., Art. V, Sec. 10) upon the specified ground "that this controversy involves constitutional questions." In view of this circumstance the reason for enforcing the rule requiring a jurisdictional statement looses its force and, if in point of fact a constitutional question is involved in the controversy, there can be no doubt as to our jurisdiction.

The city's comprehensive zoning ordinance became effective on May 5th, 1941, replacing a previous ordinance adopted in 1922. The appellants admit the power and authority of Richmond Heights to enact the ordinace (Mo. R.S.A., Secs 7412-7423) in the exercise of its police power. Ryan v. City of Warrensburg, 342 Mo. 761, 117 S.W. (2) 303. They concede the city's right and power to create residential districts excluding all businesses and multiple dwellings from the single family districts. Annotations 86 A.L.R. 659; 117 A.L.R. 1117. In fact it is conceded that the comprehensive ordinance is valid and constitutional in its general aspects. State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720. Certain rules and general principles concerning zoning are not in dispute. Admittedly, it is primarily the duty of the city in enacting a zoning ordinance to say in what district a particular area of the city should be placed and if the classification is reasonably doubtful the judgment of the court may not be substituted for the judgment of the city as to the propriety and reasonableness of the classification. Taylor v. Schlemmer, 353 Mo., l.c. 697, 183 S.W. (2), l.c. 917; Mueller v. Hoffmeister Undertaking & Livery Co., 343 Mo. 430, 121 S.W. (2) 775. Whether the classification and enforcement of the ordinance is reasonable and constitutional or whether it is arbitrary and unreasonable and therefore unconstitutional depends upon a careful examination of the evidence and the facts and circumstances of each case. Smith, Zoning Law & Practice, Sec. 56; 3 McQuillin, Municipal Corporations, Sec. 1043. In any event the regulation and restriction into districts must be reasonable, uniform or universal and nondiscriminatory, the restrictions having a fair tendency to accomplish or aid in the accomplishment of some purpose for which the city may exercise its power. 3 McQuillin, Municipal Corporations, Secs. 1027, 1043. It is the appellants' contention under the facts and circumstances, particularly as applied to their property and its use, that the classification and enforcement of the ordinance is arbitrary and unreasonable, violative of due process (Const. U.S. Amend. 14; Const. Mo., Art. I, Sec. 10) and of their right to peaceably assemble (Const. U.S. Amend. I; Const. Mo., Art. I, Sec. 9) and therefore unconstitutional. Glencoe Lime & Cement Co. v. St....