City of St. Louis v. Polar Wave Ice & Fuel Co.

• Decision Date: 30 July 1927
• Docket Number: No. 25681.,25681.
• Citation: 296 S.W. 993
• Parties: CITY OF ST. LOUIS v. POLAR WAVE ICE & FUEL CO.
• Court: Missouri Supreme Court

296 S.W. 993

CITY OF ST. LOUIS v. POLAR WAVE ICE & FUEL CO.

No. 25681.

Supreme Court of Missouri, Division No. 1.

July 30, 1927.

Error to St. Louis Court of Criminal Correction; Anthony Hochdoerfer, Judge.

Information by the City of St. Louis against the Polar Wave Ice & Fuel Company, charging the violation of a city ordinance. From an adverse decision of the city court, defendant appealed to the St. Louis court of criminal correction. Defendant's motion to dismiss the compaint and discharge the defendant was sustained, and the City brings error. Affirmed.

Julius T. Muench and Charles J. Dolan, both of St. Louis, for plaintiff in error.

Foristel, Mudd, Hezel & Habenicht, James T. Blair, and Frank X. Hiemenz, all of St. Louis, for defendant in error.

LINDSAY, C.

It was charged in an information against defendant in error, originally filed in the city court, that defendant had violated the provisions of sections 2580-2583 of an ordinance of the city of St. Louis, approved April 12, 1918. The manner of violation is charged as follows:

"In the city of St. Louis and state of Missouri, on the 23d day of November, 1922, and on divers other days and times prior thereto, the said Polar Wave Ice & Fuel Company is a corporation, and as such is the owner of a building on a certain lot of land situated at 6183-6185-6187 Delmar boulevard in said city; said defendants were and now are conducting, a private stable, which has accommodations for more than ten horses at the aforesaid address, without first having obtained written permission from the board of public service authorizing them so to do."

From an adverse decision of the city court, defendant appealed to the St. Louis court of criminal correction. The evidence there taken is brief. The city introduced the testimony of a city building inspector, who testified that the defendant owned the property mentioned in the information; that on or about November 23, 1922, he made an inspection of the premises, and found 25 head of horses in the rear of the stable there; that the stable consisted of an office in the front, wagon yard through the center, and at the rear of the yard a stable for horses, all covered under one roof. An assistant city counsellor for the building commissioner testified that he had examined the record of the board of public service; that defendant made one application for a permit to maintain a stable at the place mentioned; that the application for some reason or other was withdrawn; and that no application had been granted by the board of public service to maintain a stable at 6183-6185-6187 Delmar boulevard.

The city put in evidence the sections of the ordinance referred to as follows:

"Article CVI of the Revised Code or General Ordinances of the City of St. Louis, 1914, being Ordinance No. 30013, sections 2580-2583:

"Garage permits and permits for quarries, kilns, tanneries, slaughter houses, and soap, glue, vitriol, candle factories, distance from habitations, etc. "Section 2580. Stone Quarries, etc.—Not to be Opened—Where.—Hereafter no stone quarry ball be opened or brick kiln built, or soap factory, slaughter house, glue factory, vitriol factory, tannery, candle factory, livery stable, sales stable, boarding stable, or any other stable, whether for public or private use, having accommodations for ten or more horses, or public or private garage, or place for the storing or caring for five or more automobiles, auto trucks, motor cars, or other vehicles using gasoline or other volatile inflammable liquid or electricity as motive power, or public repair shop for automobiles, auto trucks, or motor cars, shall be opened, built, or established on any lot of ground, or in any building within the city of St. Louis without written permission so to do, having first been obtained from the board of public service." Ordinance 28157, § 2.

"Section 2581. Same.—No stone quarry shall hereafter be opened, or brick kiln located or slaughter house, glue factory, vitriol factory, soap factory, candle factory, tannery, rendering factory, or garbage works established on any lot of ground or in any building within a distance of three hundred feet of any building, built and inhabited, or any building used as a place of public assemblage before the opening, locating, or establishing of any of the classes of business above mentioned." Ordinance 28157, § 3.

"Section 2582. Livery Stables, etc.—Not to be Located—Where.—No livery stable, boarding stable, or any other stable used for public or private purposes having accommodations for ten or more horses shall hereafter be located within fifty feet of any existing inhabited residence, tenement house, or apartment house, nor within one hundred feet of any existing building used as a place of public assemblage." Ordinance 28157, § 3.

"Section 2583. Penalty.—Any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than twenty-four nor more than five hundred dollars. Each day such violation exists is hereby made a separate offense." Ordinance 28157, § 7."

Upon the foregoing evidence the court of criminal correction sustained defendant's motion to dismiss the complaint and discharge the defendant. The essential grounds of the motion were that the ordinance was enacted in violation of clause 26, § 53, art. 4, and sections 4 and 30 of article 2 of the state Constitution, and in violation of the Fourteenth Amendment of the federal Constitution. The other grounds of the motion were argumentative, within the constitutional objections, as that the ordinance delegated legislative authority to the board of public service ; put the citizens within the arbitrary power of the board; violated the uniform rule of action applicable to all citizens of the city who might come within its terms; and was not within the powers given to the city by its charter.

It is plain that the information does not charge a violation of section 2581 of the ordinance, because it does not refer to any of the activities mentioned in that section. It is equally plain that it does not charge a violation of section 2582, because it does not allege the conducting of a stable forbidder, under the conditions stated in that section.

By section 2582 of the ordinance, stables having ten or more horses cannot be located at all within certain prescribed distances of the respective buildings described in that section. For such no permit can be granted. The permit required by section 2580 has reference to only those, and to all those stables having ten or more horses, but not located within the areas prescribed by section 2582; hence the charge made can refer only to a violation of the provision of section 2580, and to conditions other than those described in section 2582.

The defendant contends that, even assuming that the ordinance (section 2580) is a valid exercise of the legislative power vested in the city, no case was made against defendant. The more important question raised is that the section mentioned is an unwarranted delegation of power to the board of public service, and that the section is invalid because it prescribes no basis nor standard under which the board can find the existence or nonexistence of certain facts and conditions, and apply the facts so found, to the prescribed basis or standard; but that it leaves to the board the power to grant or to refuse a permit at its discretion, a discretion which is unregulated, and may be exercised arbitrarily. The distinction has been drawn frequently between the authority which may be given to an administrative officer or board which is valid, and that which is invalid, dependent upon whether it is attempted to give a power, legislative in character.

The distinction is set forth in the quoted sentence (Locke's Appeal, 72 Pa. 491, 13 Am. Rep. 716) found in State v. Thompson, 160 Mo. loc. cit. 345, 60 S. W. 1079, 54 L. R. A. 950, 83 Am. St. Rep. 468:

"The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend."

The rule equally applies to ordinances of cities in respect to those matters within the province of municipal legislative authority.

In the extensive annotation upon the subject at hand, found in 12 A. L. R. p. 1436, in its application to the regulation of an ordinarily lawful business or activity, the rule is stated as follows:

"The generally accepted rule is to the effect that a statute or ordinance which vests arbitrary discretion with respect to an ordinarily lawful business, profession, appliance, etc., in public officials, without prescribing a uniform rule of action, or, in other words, which authorizes the issuing or withholding of licenses, permits, approvals, etc., according as the designated officials arbitrarily choose, without reference to all of the class to which the statute or ordinance under consideration was intended to apply, and without being controlled or guided by any definite rule or specified conditions to which all similarly situated might knowingly conform—is unconstitutional and void."

In a general way the decisions involving the question of the validity of a granted discretion recognize the differences in the nature of the subject of the regulation, or the circumstances under which the discretion is to be exercised, as that, sometimes on account of the nature of the subject it is impracticable to lay down a definite or comprehensive rule, or that the discretion relates to the administration of a police regulation and is necessary to protect the public morals, health, safety, and general welfare.

The rulings of this court, rendered under facts peculiar to the given case, while not wholly in harmony, generally recognize the rule as heretofore set forth. The real question here is whether, in view of the...