City of St. Louis v. Dorr
Citation | 46 S.W. 976,145 Mo. 466 |
Court | United States State Supreme Court of Missouri |
Decision Date | 29 January 1898 |
Parties | CITY OF ST. LOUIS v. DORR et al.<SMALL><SUP>1</SUP></SMALL> |
1. Const. art. 9, § 7, declares that the general assembly shall, by general laws, provide for the organization and classification of cities and towns, which shall elect to become subject thereto, in not to exceed four classes, each class possessing the same powers and subject to the same restrictions. Rev. St. 1889, §§ 972-977, provide for the organization under general laws of four classes, the first class comprising cities of 100,000 inhabitants and over. Held, that Acts 1891, p. 47, empowering cities of 300,000 inhabitants or more to prohibit business, traffic, etc., on boulevards, divides the cities of the first class into two, thereby changing the constitutional classification, and especially violates the provision that the power of each class shall be defined by general laws, so that those of the same class shall possess the same powers and be subject to the same restrictions.
2. Const. art. 9, § 22, directing, with other sections, a general law for the government of cities and towns, allows the St. Louis city charter to be amended at intervals of not less than two years by proposals submitted to, and accepted by, a certain proportion of the qualified voters of the city. Held, that the method of amendment prescribed was exclusive, subject to the qualification that the charter is subject to the constitution and laws of the state.
3. Const. art. 9, § 25, declaring that, notwithstanding the provisions of the article, the general assembly shall have the same power over the city of St. Louis that it has over other cities of the state, does not subject its charter to amendment by act of the general assembly.
4. Length of usage cannot enlarge legislative power, in violation of the constitution.
5. Acts 1891, p. 47, empowering cities of a certain population to exclude any business avocation on property fronting on a boulevard, deprives the owners of their constitutional right to the enjoyment thereof without just compensation, and is therefor void.
In banc. Transferred from division No. 2. Affirmed.
For opinion in division, see 41 S. W. 1094.
W. C. Marshall, for plaintiff in error. Louis A. Steber and I. H. Lionberger, for defendants in error.
In March, 1894, the city of St. Louis began an action in a police court against the defendants, Messrs. Dorr and Zeller, to recover a penalty for violation of a municipal ordinance. In the police court the defendants were adjudged not guilty. The city took an appeal to the St. Louis court of criminal correction, where the trial now under review took place.
The substance of the charge against defendants is that they carry on the business of confectioners in a building (No. 3,924) on Washington boulevard, contrary to said ordinance. The ordinance was enacted in 1892. It declares a certain portion of Washington avenue to be a boulevard, and, among other provisions regulating the use of that thoroughfare, provides that "the houses fronting or bordering on Washington boulevard, between Grand avenue and Kings highway, shall be used as residences only, and no business avocations whatever shall be allowed to be followed in same." It appears from the record that on March 15, 1894 (and on divers days immediately prior thereto), the defendants were carrying on the interdicted avocation at the place mentioned. They had previously conducted a confectionery business on Vandeventer avenue, just east of their store on Washington boulevard. Defendants' counsel at the trial admitted the material facts charged. The defense is that the ordinance is unconstitutional. The trial court sustained that defense, and entered judgment for defendants. The city (after the necessary steps) brought the case to the supreme court by writ of error. It was heard in the second division, which entered an order transferring the case to the court in banc, June 8, 1897. 41 S. W. 1094. It has since been argued and submitted to the whole court.
1. The claim of the city is that the ordinance is authorized by "an act relating to boulevards in cities having a population of 300,000 or more." Laws 1891, p. 47. The first section of that act is as follows:
The other sections of the act need not be quoted.
It is not pretended that there is any other specific authority by which the city of St. Louis is empowered to exclude such a business avocation as that of the defendants from property fronting on, or adjacent to, any public street. Without a clear grant of such power, no municipal ordinance (of the sort invoked in this case) could possibly be sustained. Such a restriction as the ordinance imposes upon the ownership of private property could certainly not be supported as a proper exercise of mere general power to regulate the use of streets, or under any express power to which we have been cited in the St. Louis charter. If the act of 1891, relating to boulevards in cities having a population of 300,000 inhabitants or more, is not valid as an amendment of the said charter, the ordinance at the foundation of this action is unauthorized (at least so far as concerns the charge against defendants). Being of the opinion that the said boulevard act does not of itself operate to alter the existing charter of the city of St. Louis, we hold said ordinance void, as applied to the facts of defendants' case.
2. The constitution of 1875 prohibits the passage of any local or special law "authorizing the laying out, opening, altering or maintaining roads, highways, streets or alleys," or "incorporating cities, towns or villages, or changing their charters." Article 4, § 53.
It is further provided in the ninth article as follows:
The scope and intent of the section just quoted have been recently described in a learned opinion of Judge Philips in a Missouri case in the United States circuit court: Ward v. Contracting Co. (1897) 79 Fed. 391, affirmed (1898) 28 C. C. A. 667, 85 Fed. 27, in a well-considered judgment of Judge Sanborn.
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