City of St. Louis v. Fisher.

• Decision Date: 19 February 1902
• Citation: 167 Mo. 654,67 S.W. 872
• Parties: CITY OF ST. LOUIS v. FISHER.
• Court: Missouri Supreme Court

67 S.W. 872

167 Mo. 654

CITY OF ST. LOUIS v. FISHER.

Supreme Court of Missouri.

February 19, 1902.

MUNICIPAL CORPORATIONS — POLICE REGULATIONS — DAIRIES AND COW STABLES — CONSTITUTIONALITY.

1. Under the charter of St. Louis (article 3, § 26, par. 6), giving the mayor and municipal assembly power "to prohibit the erection of * * * cow stables and dairies * * * within prescribed limits," the city may make the prohibited territory coextensive with the city limits, if it so desires.

2. A city ordinance providing that no dairy or cow stable shall hereafter be established within the city limits, "without first having obtained permission from the municipal assembly by proper ordinance," etc., is not void, as giving the assembly power to discriminate against one man and in favor of another.

3. Such an ordinance does not contravene the fourteenth amendment to the federal constitution, forbidding any state to make or enforce laws abridging the privileges of citizens of the United States, etc.

4. The fact that, prior to the passage of such ordinance, certain premises within the city had been occupied for dairy purposes by third persons, did not authorize defendant to start a new dairy there without the necessary permission, where after its passage such use of the premises had been abandoned.

Sherwood, J., dissenting.

In banc. Appeal from St. Louis court of criminal correction; Willis H. Clark, Judge.

Action by the city of St. Louis against John G. Fisher to recover a fine for a violation of a city ordinance. From a judgment in the court of criminal correction affirming a judgment in the police court finding defendant guilty, he appeals. Affirmed.

The following is the opinion in division No. 2:

GANTT, J.

This is a civil action by the city of St. Louis to recover a fine of $100 for the violation of section 5 of a city ordinance of said city, numbered 18,407, approved April 6, 1896, which said section is in these words: "No dairy or cow stable shall hereafter be erected, built or established within the limits of this city without first having obtained permission so to do from the municipal assembly by proper ordinance, and no dairy or cow stable not in operation at the time of the approval of this ordinance shall be maintained on the premises unless permission so to do shall have been obtained from the municipal assembly by proper ordinance. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than one hundred dollars nor more than five hundred dollars." The complaint charged that defendant, in the city of St. Louis and state of Missouri, on the 16th day of November, 1898, and on divers other days and times prior thereto, was the occupant of certain premises, known as 7208 and 7210 North Broadway, in said city, and did then and there erect, build, and establish on said premises a dairy and cow stable, without first having obtained permission so to do from the municipal assembly by proper ordinance, and furthermore did at said times and place maintain said dairy and cow stable without having obtained permission from said municipal assembly of said city by proper ordinance, and that said dairy and cow stable was not in operation at the time of the approval of said ordinance No. 18,407, to wit, April 6, 1898, contrary to the said ordinance. The defendant was found guilty in the police court, and appealed to the court of criminal correction. In the last-mentioned court he moved to quash the complaint on nine grounds, as follows: "(1) Because the statement does not set forth facts sufficient to constitute any offense under the ordinances of the city of St. Louis. (2) Because section 5 of said Ordinance No. 18,407 is unconstitutional and void for the reason that it operates to deprive a person of property without due process of law. (3) Because said section 5 is void as being unreasonable and oppressive to the citizen and the property owner. (4) Because said section is void, there being no power or authority granted to the municipal assembly by the charter of the city of St. Louis to pass the same. (5) Because said section is retrospective in its nature and application, and therefore in violation of the rights of private property. (6) Because said section 5 is void, being a delegation of the powers of the municipal assembly. (7) Because said section is in violation of section 30, art. 2, of the constitution of the state of Missouri. (8) Because said section 5 is in violation of section 4 of article 2 of the constitution of Missouri. (9) Because said section 5 is void as being in violation of the fourteenth amendment to the constitution of the United States, in that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, `nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'" The court of criminal correction overruled this motion, and thereupon entered his plea of not guilty, and the cause was submitted to that court upon an agreed statement of facts, without a jury; and the court found defendant guilty of a violation of said ordinance, and fined him $100, from which he appeals to this court.

The agreed statement of facts is in these words: "It is hereby agreed and stipulated by and between the parties to the above-entitled cause, by their respective attorneys, that said cause may be submitted and tried upon the following statement of facts, to wit: The plaintiff, the city of St. Louis, is a municipal corporation organized and existing under the laws of the state of Missouri; and defendant is, and was on the 16th day of November, 1898, the occupant of certain premises, known as 7208 and 7210 North Broadway, in the city of St. Louis, state of Missouri, upon which premises at said time stood a dwelling house and frame stable, which had been erected and built prior to the occupancy of said premises by defendant. At the time of the approval of Ordinance No. 18,407 of said city and state, said premises, buildings, and stable were occupied and in use by a certain party, other than this defendant, for the purpose of operating a dairy and maintaining a cow stable; and this defendant was at the same time operating a dairy and maintaining a cow stable on premises known as No. 6305 Bulwer avenue, said city and state. Some time in the month of March, 1898, the said premises at Nos. 7208 and 7210 North Broadway were abandoned as a dairy and cow stable, and the dwelling house thereon was occupied by a private family for residence purposes only; and no dairy or cow stable was maintained on said premises from March, 1898, until some time in September, 1898. In September, 1898, defendant moved his cows (about thirty in number) from premises No. 6305 Bulwer avenue, said city, onto premises Nos. 7208 and 7210 North Broadway, said city, placed them in the old stable, and did proceed to conduct upon said premises a dairy establishment, and produce from said cows milk, and sell the same to his customers for profit, and was so doing on the said 16th day of November, 1898, without having first obtained permission so to do from the municipal assembly by proper ordinance, as provided by section 5 of Ordinance No. 18,407 of the city of St. Louis, approved April 6, 1896. It is hereby stipulated and agreed by the parties to this cause, by their respective attorneys, that the printed ordinance, marked `Exhibit A,' which is attached to and made a part of this agreed statement of facts, is a full, true, and correct copy of said Ordinance No. 18,407, and may be considered in evidence in this cause."

Section 5 of Ordinance No. 18,407, with a violation of which defendant was charged, is as follows: "Sec. 5. No dairy or cow stable shall hereafter be erected, built or established, within the limits of this city, without first having obtained permission so to do from the municipal assembly, by proper ordinance, and no dairy or cow stable not in operation at the time of the approval of this ordinance shall be maintained on any premises, unless permission so to do shall have been obtained from the municipal assembly by proper ordinance. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than one hundred nor more than five hundred dollars."

The transcript in this case is somewhat difficult to understand. It is either all record proper, or all bill of exceptions. There is nothing in the nature of the record proper, showing a trial, the entry of judgment, the filing of any of the motions, or the action taken by the court thereon. There is nothing in the transcript showing any copy of the affidavit for appeal, the bond for appeal, or the order granting an appeal to this court. There is nothing showing the filing of a bill of...