City of St. Louis v. Weber

• Citation: 44 Mo. 547
• Parties: THE CITY OF ST. LOUIS, Respondent, v. FREDERICK WEBER, Appellant.
• Decision Date: 31 October 1869
• Court: United States State Supreme Court of Missouri

44 Mo. 547

THE CITY OF ST. LOUIS, Respondent,

v.FREDERICK WEBER, Appellant.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Criminal Court.

Garesche & Mead, and S. Reber, for appellant.

I. The ordinance 5,434, relating to markets, is invalid, because unreasonable and not warranted by the charter in force when it was passed. (Commissioners v. Gas Co., 12 Penn. St. 318; Mayor of Hudson v. Thorne, 7 Paige, 261; 3 Pick. 462.)

II. If the city council had power under the charter of March 3, 1851, to prohibit or suppress meat shops, the power to prohibit was taken away by the charter of March 19, 1866 (Sess. Acts 1866, p. 284, clause 2), amending the charter of 1851, and the present charter, approved March 13, 1867 (in clause 2, p. 63, Sess. Acts 1867), has the same provisions. The charters of 1866 and 1867 only confer on the city the power to regulate, and not prohibit or abolish, meat shops; and therefore also the ordinance 5,832, so far as it prohibits meat shops, is invalid. (Bethune v. Hughes, 28 Ga. 560.)

III. The charters of 1866 and 1867 repeal, by necessary implication, so much of the ordinance 5,434 as abolishes or prohibits the establishment of meat shops in any part of the city, even if that were originally a valid ordinance; and therefore ordinance No. 6,508, which is amendatory of No. 5,434, and is incomplete in itself, is inoperative, because the latter was originally void and has also been repealed.

V. All such legislation as the ordinances prohibiting meat shops is in restraint of lawful trade and therefore invalid. (City of St. Paul v. Laidlow, 2 Minn. 190; Bethune v. Hughes, 28 Ga. 560.)

Charles P. Johnson, circuit attorney, and Krum, Decker & Krum, and Woerner & Kehr, for respondent.

I. Under the charter of 1851 the validity of the ordinance in question was judicially determined. (Jackson v. City of St. Louis, 25 Mo. 37.)

II. The thirty-first subdivision of section 1, article 4, revised charter 1867, “to regulate the vending of meat,” is not a repeal, but an additional grant of powers.

III. The meat-shop ordinances are not in restraint of trade. (Williams v. The City Council of Augusta, 4 Ga. 509; Nagle v. same, 5 Ga. 546; Green v. Mayor and Aldermen of Savannah, 6 Ga. 1; City Council v. Ahren, 4 Strobh. 241; Wainsboro v. Smart, 11 Rich. 551; Shelton v. Mayor of Mobile, 30 Ala. 540, reciting 3 Ala. 137; White v. Kent, 11 Ohio, 550; St. Paul v. Troyer, 3 Minn. 291; Paige v. Fazackerly, 36 Barb. 392; Yates v. Milwaukie, 12 Wis. 673; Lawrenceburg v. Wuest, 16 Ind. 337; Ash v. The People, 11 Mich. 247, with numerous authorities there cited; City of Brooklyn v. Cleves, Hill & Denio's Sup., N. Y., 231; Perdue v. Ellis, 18 Ga. 586.

BLISS, Judge, delivered the opinion of the court.

Defendant was fined for keeping a meat shop within the market limits, or limits within which meat shops are prohibited by the ordinances of St. Louis. Ordinance No. 5,434, in relation to markets, approved September 6, 1864, provided, by section 5, article 5, 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.” Section 1, of art. 8, of the same ordinance authorizes meat shops to be licensed in the extended new limits of the city, but not within four blocks of any market-house. Ordinance 5,832, of March 20, 1866, changed the above limits by prohibiting meat shops within six blocks of a market-house, and ordinance 6,508, section 11, imposes a penalty for the violation of section 5, art. 5, of ordinance 5,434.

The appellant urges that these ordinances are invalid, for the reason, first, that they are not warranted by the city charter; and second, if warranted, they are an unreasonable exercise of the powers granted. The charter of March 3, 1851 (Sess. Acts 1851, p. 155), authorized the council “to erect market-houses, establish markets and market-places, and provide for the government and regulation thereof,” and, in section 31, also to regulate “the vending of meat, poultry, vegetables,” etc. This court, in The City of St. Louis v. Jackson, 25 Mo. 37, expressly affirms the power of the city under the authority cited to pass an ordinance in the precise language of section 5, art. 5, of ordinance 5434 above quoted, and we can see no sufficient reason for disregarding that decision, although there are some authorities apparently adverse to it. Appellant claims such changes in legislation, both by the State Legislature and city council, as to make the question a new one.

A revision of the city charter was had March 18, 1867 (Sess. Acts 1867, p. 58), which changed the phraseology of the previous grant. The eleventh subdivision of section 1, article 4, p. 63, grants the council power “to erect market-houses, purchase market-houses already erected, * * establish markets, market-places, and meat shops, provide for the government and regulation thereof, and the amount of licenses to be paid therefor;” and the thirty-first subdivision gives power * * “to regulate the vending of meat, poultry, fish, and vegetables, etc.” This revision, it is claimed, changes the power, and operates as a repeal of the previous ordinance. If it took away the power to pass such an ordinance, it would have that effect; but the only change I can see is that the revision adds to the former power o establishing markets, also that of establishing and licensing meat shops. It leaves the former power of establishing and regulating markets and regulating the selling of meats untouched; so that if an ordinance like the one under consideration in The City v. Jackson were lawful under the former charter, it is so under the revision.

It can not be claimed that the city council can derive any authority for an ordinance already adopted, from the new powers given by the amendment to the charter of 1868, referred to by counsel, and I do not understand the validity of the one in question, or of that part of it involved in this suit, to depend upon the act of that year, but rather upon the power long before given to ““establish markets and market places,” and “to regulate the vending of meat,” etc. These two powers are very broad and comprehensive, and existing as they did before the ordinance in question, and being embraced in every amendment, would seem to warrant any reasonable legislation upon the subject.

The matter of the second claim, that the council have executed their power in an unreasonable manner, has not been adjudicated. That corporations have none of the elements of sovereignty, that they can not go beyond the powers granted them, and that they must exercise such granted powers in a reasonable manner, are propositions that can not be disputed. And the court must judge in each case whether the exercise of the power be reasonable. (Commonwealth v. Worcester, 3 Pick. 462, 473.) If this ordinance is oppressive, unequal, and unjust; if it be not a legitimate regulation of the vending of meat, but partial and unfair, establishing monopolies, or subjecting either the seller or purchaser to unnecessary inconvenience or expense, it certainly should not...