City of St. Louis v. Russell

• Decision Date: 24 May 1893
• Citation: 116 Mo. 248,22 S.W. 470
• Parties: CITY OF ST. LOUIS v. RUSSELL.
• Court: Missouri Supreme Court

22 S.W. 470

116 Mo. 248

CITY OF ST. LOUIS v. RUSSELL.

Supreme Court of Missouri, Division No. 2.

May 24, 1893.

CITIES — POWER TO DESIGNATE LOCATION OF LIVERY STABLES — DELEGATION OF POWER — DISCRIMINATION — NUISANCE.

1. The authority given a city to regulate livery and sale stables includes the power to designate the places where they may be located.

2. The power of the city to determine the location of livery stables, being legislative power, cannot be delegated to owners of the property in a block in which it is proposed to erect such a building.

3. An ordinance authorizing lot owners to determine whether a person shall be permitted to erect a livery stable in the block in which their property is located is invalid as allowing discrimination.

4. A livery stable is not per se a nuisance.

Error to St. Louis court of criminal correction; R. A. Campbell, Judge.

E. J. Russell was convicted of violating an ordinance of the city of St. Louis regulating livery stables. On appeal to the court of criminal correction he was discharged, and the city brings error. Affirmed.

W. C. Marshall, for plaintiff in error. Louis A. Steber, for defendant in error.

BURGESS, J.

On the 21st day of July, 1890, the defendant was found guilty in the police court of St. Louis, and fined the sum of $200, for violation of section 733 of the ordinances of said city, to wit: "Sec. 733. Every person who, as owner, agent, lessee, builder, architect, or contractor, shall commence any building in the city of St. Louis, or do or cause to be done any work on the same, or build the same, without first having procured a permit authorizing the same from the commissioner of public buildings, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than one nor more than five hundred dollars for each offense, and every day upon which said work shall be done, or said building shall be commenced or exist, without said permit, shall constitute a separate offense." He appealed to the court of criminal correction, where he was again tried on the following agreed statement of facts: "The plaintiff, the city of St. Louis, is a municipal corporation, organized under the laws of Missouri. Defendant is the owner of a certain lot of ground in said city of St. Louis, fronting on the east side of Grand avenue between Lucky and North Market streets, and in city block number 300. Defendant is now erecting a livery stable thereon without a permit, and that, prior to commencing said building thereon, he applied to the commissioner of public buildings for a permit for the erection of a livery stable upon his said property; that said application was in writing, and in proper form; that defendant also tendered in connection therewith suitable and satisfactory plans and specifications for said livery stable, and also tendered therewith the required fee for the issuance of the permit; that the building commissioner stood ready to issue said permit, and will yet issue said permit if defendant will comply with the provisions of sections 734 and 735 of the Revised Ordinances of the city of St. Louis, which read as follows: `Sec. 734. No livery, boarding, or sale stable shall be located on any block of ground in St. Louis without the written consent of the owners of one half the ground of said block. Sec. 735. No permit shall hereafter be granted by the commissioner of public buildings for the erection of any livery, boarding, or sale stables until the provision contained in the next preceding section shall be complied with, and the written consent aforesaid is filed in said office.' The question and issue submitted to the court for determination is the validity or invalidity of the two sections quoted, and on which judgment shall be had either for plaintiff or defendant, as the court may find. The bound volume of Revised Ordinances, 1887, of the city of St. Louis may be considered in evidence without being set out herein, or in any bill of exceptions hereafter presented by either party." On the 16th of September, 1890, the court of criminal correction discharged the defendant. After a motion for a new trial was filed and overruled, the cause was brought to this court by plaintiff on a writ of error. By section 1, art. 3, of the charter of the city of St. Louis, the legislative power of the city is vested in a council and house of delegates, to be styled the "Municipal Assembly of the City of St. Louis," and it is contended by counsel for plaintiff that the further power is conferred on it by its charter to pass the ordinances now before this court for consideration. By the fifth paragraph of section 26, art. 3, of its charter, it is given the power to license, tax, and regulate livery and sale stables; in paragraph 6 of the same section it is given the power to declare, prevent, and abate nuisances on public and private property; and by paragraph 14 of the same section it is given the power to pass all such ordinances, not inconsistent with the provisions of the laws of the state, as may be expedient in maintaining the peace, good government, health, and welfare of the city, its trade, commerce, and manufactures.

The first question for our consideration is whether or not the power to regulate livery and sale stables includes the right to designate the places and in what part of the city they may be located, and to prohibit their erection at other places. A similar question was before this court in 1857, in the case of City of St. Louis v. Jackson, 25 Mo. 37, in which it was held that a clause in the charter of the city of St. Louis, giving the may or and city council the power to "regulate the inspection of butter, lard, and other provisions, to regulate the vending of meat, poultry, and vegetables, restrain and punish the forestalling of poultry, butter, eggs, and fruit, and to suppress hucksters," confers upon them the power to provide by ordinance that "no person, not being the lessee of a butcher's stall, shall sell or offer for sale in market, or in any other place, any fresh meat in less quantities than one quarter," is not in restraint of trade, but is both politic and proper. The court in its opinion says: "This ordinance is not against any known law of our state, nor does it interfere with the right of selling the commodities of our citizens. It requires that the person retailing fresh meat shall have a stall in some market for that purpose. The city undergoes heavy expense in erecting commodious and convenient market houses. It rents the stalls of those houses to butchers and others selling fresh meats. The rents are of importance by way of income to the city. Now, to permit any one who may think proper to put up a block or shanty on any street or alley for the purpose of selling fresh meats in quantity less than a quarter, and thereby withdraw the purchasers from the market houses, is at once giving to such retailers a very great advantage over those who rent the stalls, and pay a high price for them." This decision was followed and approved in the case of City of St. Louis v. Weber, 44 Mo. 547, in construing a charter provision substantially the same as the one under consideration, and it was held that the city of St. Louis, under its charter of March 3, 1851, authorizing the city council to establish markets and market places, and to regulate the vending of meat, had power to provide by ordinance that no person, not being the lessee of a butcher's stall, should sell or offer for sale in market, or in other place, any fresh meat in less quantities than one quarter. Ash v. People, 11 Mich. 347; City of Davenport v. Kelly, 7 Iowa, 102; Bush v. Seabury, 8 Johns. 327; Village of Buffalo v. Webster, 10 Wend. 99. So it was held in the case of Cronin v. People, 82 N. Y. 318, when by its charter the city of Albany, by its common council, was...