City of Springfield v. Smith

• Decision Date: 25 May 1929
• Citation: 19 S.W.2d 1,322 Mo. 1129
• Parties: City of Springfield, Appellant, v. W. W. Smith
• Court: Missouri Supreme Court

19 S.W.2d 1

322 Mo. 1129

City of Springfield, Appellant, v. W. W. Smith

Supreme Court of Missouri

May 25, 1929

Rehearing Overruled June 29, 1929.

Appeal from Criminal Court of Greene County; Hon. Warren L White, Judge.

Affirmed

Dan M. Nee, Barbour & McDavid and Schmook & Sturgis for appellant.

(1) The city of Springfield is a city of the second class under the general laws of the State. Under those laws (its charter), it has the authority to enact the ordinance herein and to make the classification contained therein. Sec. 7976, R. S. 1919 Pars. XVIII, XX, XXI, XXXIV, LXIV, LXV, LXII. Secs. 7979 7997, R. S. 1919. Here is direct and specific authority given to the city to license and regulate theatres and moving-picture exhibitions. Such an ordinance would, however, be a valid exercise of the general police powers of the city. "The exercise of the police powers of the city in the regulation of vocations is one of the municipal functions necessarily and inseparably incident to its existence as a corporation." Komen v. St. Louis, 289 S.W. 840; St. Louis v. Kafferata, 24 Mo. 94; St. Louis v. DeLassus, 205 Mo. 585. (2) A municipal ordinance is not void or objectionable because it goes further than the state law, and prohibits the doing of acts or carrying on a business on Sunday which the state law does not prohibit. St. Louis v. Bernard, 249 Mo. 51; St. Louis v. Ameln, 235 Mo. 669; St. Louis v. Klausmeier, 213 Mo. 119. (3) It is not the particular acts or things done at a vaudeville or moving-picture show, considered apart from the show as a whole, that are to be regulated or made unlawful. It is the business or avocation as such that is being regulated, considered apart from any particular or general act connected therewith. The statute expressly empowers cities to regulate this particular business as such. City ordinances as well as state laws, regulating particular businesses as such, and separate and apart from any unlawful act connected therewith, are upheld as valid exercises of the police power. Sec. 3599, R. S. 1919; State v. Ambs, 20 Mo. 214; Louisiana v. Anderson, 100 Mo.App. 341; Komen v. St. Louis, 289 S.W. 841; State v. Crabtree, 24 Mo. 232; State v. Meagher, 49 Mo.App. 571; State v. Lucas, 94 Mo.App. 117; State v. Hogan, 212 Mo.App. 473; St. Joseph v. Elliott, 47 Mo.App. 418. (4) The trial court erred in holding that the ordinance in question is invalid because it prohibits vaudeville and moving-picture shows on Sunday, but does not prohibit other kinds of businesses or amusements where some at least of the same acts or things which are forbidden at a vaudeville show are left unprohibited. Under the ruling, an ordinance prohibiting vaudeville and moving-picture shows on Sunday, must, in order to be valid, prohibit every other form of entertainment or amusement where any of the things constituting part of a vaudeville or moving-picture exhibition are permitted. It is for the city to determine within its powers what regulations it will make and to what particular trade, business or occupation they shall apply. St. Louis v. Kellman, 295 Mo. 84; Thiesen v. McDavid, 34 Fla. 440, 26 L. R. A. 234; McPherson v. Chebanse, 114 Ill. 46, 55 Am. Rep. 857; 28 Cyc. 743; State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A. (N. S.) 1259, and note; Carr v. State (Ind.), 93 N.E. 1071, 32 L. R. A. 1190. The ordinance is leveled at those who shall, in the city, keep open any theater, playhouse or other place where theatrical performances, vaudeville shows or moving-picture exhibitions are given or conducted on Sunday. This classification is a proper and natural one, applies to all of the classes alike, and is a general law and not a special one, and one under which the city under its charter and its police powers, had the right to make. Sec. 7976, R. S. 1919, Par. XVIII; Komen v. St. Louis, 289 S.W. 838; St. Louis v. De Lassus, 205 Mo. 578; St. Louis v. Bernard, 249 Mo. 51; Hughes v. Railway Co., 87 Mo. 831; State v. Swagerty, 203 Mo. 517; State v. Grossman, 214 Mo. 240. (5) The presumption is in favor of the constitutionality of laws and ordinances. The courts uphold laws and ordinances unless its unconstitutionality is manifest. Where an ordinance is legally passed with due authority, the courts will not declare it unreasonable and void, unless no difference of opinion can reasonably exist upon such question. Komen v. St. Louis, 289 S.W. 841; Wagoner v. St. Louis, 284 Mo. 417; Banks v. Clark, 252 Mo. 30; Bledsoe v. Stallard, 250 Mo. 154; St. Louis v. Webber, 44 Mo. 547. (6) The law-making body may properly recognize different degrees of evil tendency in different forms of amusement or entertainment, and may give effect thereto in Sunday laws, without being open to the charge that the legislation is arbitrary, unwarranted or class legislation, and laws and ordinances prohibiting vaudeville and moving-picture shows on Sunday have generally been upheld by the courts. State v. Loomis (Mont.), 242 P. 344; In re Donnellan, 49 Wash. 460, 95 P. 1085; Neuendorff v. Duryea, 69 N.Y. 557, 25 Am. Rep. 235; Lindenmuller v. People, 33 Barb. (N. Y.) 548; West Coast Theater Co. v. Pomona, 68 Cal.App. 763, 230 P. 225; Goytino v. McAleer, 4 Cal.App. 655, 88 P. 991; Ex parte Johnson (Okla.), 201 P. 533; State v. Powell, 58 Ohio St. 324, 41 L. R. A. 854; State v. Herald, 47 Wash. 538, 92 P. 376, 20 L. R. A. (N. S.) 433; Carr v. State, 175 Ind. 241, 32 L. R. A. (N. S.) 1190; State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A. (N. S.) 1259, and note.

Sam M. Wear and W.D. Tatlow for respondent.

(1) Section 53 of Article IV, Sub-section 32, of the Constitution of this State, expressly and affirmatively provides that no special law shall be enacted where a general law can be made applicable; and as to whether a general could have been made applicable is declared to be a judicial question, to be determined as such without reference to any legislative assertion on the subject. This provision is equally applicable whether the Legislature is acting directly in enacting the law, or through a municipal body; it therefore applies with full force and effect to a city ordinance. Ex parte Lerner, 281 Mo. 18. The charter under which this ordinance was enacted, provides that it shall not be "inconsistent with the Constitution . . . of this State." Sec. 7976, R. S. 1919. (2) An ordinance "no person, etc., shall, in this city, keep open any theatre playhouse or other place where theatrical performances, vaudeville shows or moving-picture exhibitions are given, or conducted, nor conduct or take part in any such theatrical performance, vaudeville shows or moving-picture exhibitions on the first day of the week called Sunday," is void, for the reason that the business of conducting theatrical, vaudeville or moving-picture exhibitions, or the labor required to do so, constitute a class or group that can be singled out and made the subject-matter of such a criminal statute, or quasi-criminal ordinance. State v. Granneman, 132 Mo. 326; State v. Gritzner, 134 Mo. 512; State v. Hill, 147 Mo. 63; Henderson v. Koening, 168 Mo. 356; State v. Swagerty, 203 Mo. 517; Wiles v. Williams, 232 Mo. 36; State v. Railroad, 239 Mo. 196; Moler v. Whisman, 243 Mo. 571. (3) There is a concensus of judicial judgment in each and all of the other four states that have a similar constitutional provision, that such a criminal law or ordinance is void. They are Illinois, Indiana, Kentucky and California, all of which have followed and approved the Granneman case, supra. Eden v. People, 161 Ill. 296; Armstrong v. State (Ind.), 84 N.E. 3; Stratman v. Commonwealth, 125 S.W. 1096; Ex parte Jentzsch, 112 Cal. 468, 44 P. 803; City of Marengo v. Rowland, 263 Ill. 531; Miller v. Sincere, 273 Ill. 664; Noel v. People, 187 Ill. 587. (4) Sunday laws have regard to that day as a day of rest, and not to the religious character of the day. They are civil regulations, based upon a sound public policy which recognizes that one rest day in every seven is for the general good of mankind. State v. Ambs, 20 Mo. 214; State v. Railroad, 239 Mo. 196; Huntington v. Georgia, 163 U.S. 299; Ex parte Newman, 9 Cal. 502. The cessation from work and business is not and cannot be, to compel the people to go to church. Constitution of Missouri: Art. 2, sec. 6. Any of the other six days could be selected as the day of rest instead of the Lord's Day. (5) The first question to be determined under the constitutional provision requiring a general law where it can be made applicable, is, does the subject of the law admit of classification and if so, what is the legislative subject of the law for the purpose of selecting the class to which it may be applied? And after the class is selected, all that naturally falls within the class must be included in order to make the law a general one. State ex rel. Bradshaw v. Hedrick, 294 Mo. 21; State v. Pollock, 276 S.W. 20; State v. Wilson, 288 Mo. 315; State ex rel. v. Armstrong, 286 S.W. 705. While the legislative body is given a large discretion, in the determination of whether it admits of classification, and, if so, in the selection of the class, and the determination of who shall be included in it, the determination of the right to classify, the selection of the class, as well as who is to be included, must each and all rest upon some difference, which bears a reasonable and just relation to the act in respect of which the classification is proposed, and it can never be done arbitrarily and without any basis in fact thereofor. In its last analysis, where there are grounds to classify, the question is: Whether or not the classification is chimerical and captious, or reasonable and just. If the object and purpose of a Sunday law, could lawfully be to compel or induce people to attend church, then the...