City of St. Louis v. Stenson, 29586

• Decision Date: 15 March 1960
• Docket Number: No. 29586,29586
• Citation: 333 S.W.2d 529
• Parties: CITY OF ST. LOUIS (Plaintiff), Respondent, v. Thomas STENSON (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 529

333 S.W.2d 529

CITY OF ST. LOUIS (Plaintiff), Respondent, v. Thomas STENSON (Defendant), Appellant.

No. 29586.

St. Louis Court of Appeals, Missouri.

March 15, 1960.

Motion for Rehearing or to Transfer to Supreme Court Denied

and Opinion Modified on Court's Own Motion April 12, 1960.

LaTourette & Rebman, George F. Gunn, Jr., St. Louis, for appellant.

Charles J. Dolan, Acting City Counselor, W. H. Freivogel, Asst. City Counselor, St. Louis, for respondent.

RUDDY, Judge.

Defendant was charged in the City Court of St. Louis with violation of Ordinance No. 47067 of said City. The record before us does not show the ruling made in the City Court of St. Louis. However, it is obvious an appeal was taken to the St. Louis Court of Criminal Correction by the party who suffered an adverse decision in said City Court.

In the St. Louis Court of Criminal Correction the defendant was found guilty and a fine of $25 was assessed against him, from which judgment he has appealed. The appeal is submitted here on an 'agreed statement of facts in lieu of the transcript of record.' The agreed statement of facts is brief and we adopt it as our statement of facts of this case and it is as follows:

'1. The appellant is employed as a truck driver for the Be-Mac Transport Company, Inc., which said company is a Missouri Corporation engaged in the transporation of general commodities between St. Louis, Missouri and other points and places as more particularly shown in its certificate of public convenience and necessity issued to it by the Interstate Commerce Commission, a copy of which is attached hereto as Exhibit A.

'2. The said Be-Mac Transport Company, Inc. has secured from the Public Service Commission of Missouri, appropriate authority to engage in the business of a motor carrier in interstate commerce on the public highways of this State and more particularly on U. S. Highway 67, north from the limits of the City of St. Louis, said permits having been issued pursuant to the requirements and provisions of Section 390.071 R.S.Mo. 1949 [V.A.M.S.].

'3. The said Be-Mac Transport Company, Inc. owns its terminal property in the City of St. Louis, which said property is located at 7400 North Broadway.

'4. On the 7th day of September, 1955, there was in existence St. Louis City Ordinance No. 47067, which said Ordinance restricted the use of motor vehicle traffic operating into or out of St. Louis over U. S. Route 67 by way of Riverview Boulevard and the Halls Ferry Circle to vehicles of thirty-three (33) feet or less; that Riverview Boulevard, in the City of St. Louis, is designated as U. S. Highway 67.

'5. The appellant, Thomas Stenson, at the direction of his employer, BeMac Transport Company, Inc., did on the 7th day of September, 1955, traverse north from St. Louis over Route 67 by way of Riverview Boulevard and Halls Ferry Circle, in a tractor-trailer combination, the combined length of which was greater than thirty-three (33) feet, but less than forty-five (45) feet.

'6. On February 15, 1956, appellant was adjudged guilty of violation of St. Louis Ordinance No. 47067 and assessed a fine of twenty-five ($25.00) dollars and costs, from which judgment appellant has appealed.'

Attached to the aforesaid agreed statement of facts was a copy of the minutes of the instant case as they appeared in the record and file in the Clerk's Office of the St. Louis Court of Criminal Correction. The matters shown thereon pertinent to a review of this case are as follows:

'Mar. 15, 1956 Defendant files motion for new trial.

'Mar. 23, 1956 Motion for a new trial overruled.'

Exhibit A was also attached to said agreed statement of facts and, as indicated in the said statement of facts, a certificate of public convenience and necessity was issued to the Be-Mac Transport Company, Inc., by the Interstate Commerce Commission. No point is raised concerning the right under said certificate of the Be-Mac Transport Company, Inc., to engage in the transportation of commodities at the point and on the street where defendant was arrested. For this reason we do not state the contents of the aforesaid certificate.

The pertinent part of Ordinance No. 47067 involved in this appeal is as follows:

'Section One. No person shall drive a commercial vehicle or combination of same having an over-all length of more than thirty-three feet or a weight of more than two and one-half tons upon Riverview Boulevard between the west line of Broadway and the north line of Wabash Railroad Right-of-Way at its intersection with Riverview Boulevard except that such vehicle may be driven upon said street to make deliveries, load or unload, service a vehicle or service any land or building upon said street.'

Defendant presents two points for our review, one of which he states as follows:

'The trial court erred in failing to find that Ordinance No. 47067 was unconstitutional as creating an undue burden on interstate commerce and denying equal protection of the law, because City Ordinance No. 47067 is an unlawful attempt to regulate interstate commerce in that:

'A. There has been no delegation by the State or Federal Government to the City of St. Louis to regulate the length of motor vehicles in interstate commerce.

'U.S.Const. Art. 1, Sec. 8, Cl. 3.

'B. Ordinance 47067 permits vehicles which are of greater length than that driven by appellant to traverse the state highway at the same point where appellant traversed and was arrested for traversing.

'U.S.Const., Amend XIV. Sec. 1; Mo.Const., Art. 1, Sec. 2 [V.A.M.S.].'

In this point, relied on by defendant, he contends that Ordinance No. 47067 is unconstitutional because it creates an undue burden on interstate commerce and denies equal protection of the law and, therefore, is in violation of stated provisions of the Constitution of the United States and the Constitution of the State of Missouri. This point compels us to pause for an examination of our jurisdiction to entertain this appeal.

If the constitutional question presented here was properly raised in the trial court at the earliest opportunity and was kept alive throughout the case and sufficiently preserved in the motion for new trial, jurisdiction of this appeal would be in the Supreme Court of this state, if, additionally, the constitutional question rested on a matter or matters of substance, not merely color, and was not based on speculation and conjecture.

No question of our jurisdiction has been raised by the parties to this appeal, but before reviewing the case upon the merits we have the duty of examining the record to determine if this court has jurisdiction of the appeal. Reaves v. Rieger, 360 Mo. 1091, 232 S.W.2d 500; Flynn v. First National Safe Deposit Company, Mo.App., 273 S.W.2d 756.

The Supreme Court of this state has exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States or of this state (Article V, Section 3, V.A.M.S.), but that ground must affirmatively appear of record in order to confer jurisdiction on the Supreme Court. Hemphill v. Jackson, Mo., 304 S.W.2d 7; Holland v. City of St. Louis, Mo., 262 S.W.2d 1; Lemonds v. Holmes, Mo., 229 S.W.2d 691.

In the case of City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, loc. cit. 380, the Supreme Court of this state said:

'To invoke our jurisdiction on the ground a constitutional question is involved a party must follow four requirements. 1. He must raise the constitutional question at his first available opportunity; 2. he must designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the Article and Section or by quotation of the provision itself; 3. he must state the facts showing such violation; 4. he must preserve the constitutional question throughout for appellate review.'

In the aforementioned case of City of St. Louis v. Butler Co., supra, the Supreme Court said the doctrine of inherency no longer attains and was unconstitutional. Therefore, the above stated four factors must appear affirmatively in the record before the Supreme Court has jurisdiction of a ground which invokes a constitutional question.

The preservation of the constitutional question for appellate review requires the appellant (defendant in this case) to keep the constitutional question alive by proper objection throughout the trial and it must be preserved in the motion for new trial. State v. Brookshire, Mo., 325 S.W.2d 497; State v. Becker, Mo.App., 268 S.W.2d 51.

No place in the agreed statement of facts is it affirmatively shown that the constitutional question was raised in the St. Louis Court of Criminal Correction or in the City Court of the City of St. Louis. The record before us is devoid of any claim in the lower courts that any constitutional right of the defendant has been infringed or denied. Absent any such affirmative showing in the record, the Supreme Court would not have jurisdiction of this appeal. Therefore, the jurisdiction of this appeal is in this court. The constitutional question attempted to be raised by defendant in this appeal cannot be considered by this court. However, this court has jurisdiction to review the remaining point relied on by the defendant.

In this remaining point, relied on by defendant, he contends the City of St. Louis is without authority to enact Ordinance No. 47067, because the legislative body of the State has enacted laws regulating the length of motor vehicles using the highways of this state and the aforesaid city ordinance is in direct conflict with the state law.

The city ordinance involved prohibits the driving of commercial vehicles or combinations of same having an over-all length of more than 33 feet between certain designated points upon Riverview Boulevard. In this ordinance the City of St. Louis has attempted to regulate the length of commercial vehicles traveling on the designated portion of Riverview Boulevard. The portion of...