City of St. Louis v. Dorr

Decision Date29 January 1898
Citation46 S.W. 976,145 Mo. 466
CourtMissouri Supreme Court
PartiesCITY 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.

Sherwood and Burgess, JJ., dissenting.

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.

BARCLAY, J.

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:

"Section 1. All cities in Missouri having a population of three hundred thousand inhabitants or more, or which shall hereafter reach said population, are hereby authorized and empowered to establish by ordinance boulevards and provide for maintaining the same; and may regulate the traffic thereon, and may exclude heavy driving thereon, or any kind of vehicle therefrom, and may exclude the institution and maintenance of any business avocation on the property fronting on such boulevard and may establish a building line to which all buildings and structures thereon shall conform, and may convert existing streets into boulevards, and may levy a special tax on property fronting on said boulevards, to light, sweep and maintain the same, and the grass and trees thereon, or any part of said expenditures, and for the above purposes, or any of them, may lay out a district or districts in which said special tax shall be levied, and provide for the assessment of said special tax, by assessing the same in favor of the city on the adjoining property fronting or bordering on the boulevards where such lighting, sweeping and maintenance is to be had, in the proportion that the linear feet of each lot fronting or bordering on the boulevard bears to the total number of linear feet of all property chargeable with the special tax aforesaid in the district so established, and may accept dedication of boulevards with conditions thereto attached which shall be binding and conclusive: provided, however, that no ordinance on the above subjects or any of them, shall be valid unless recommended by the board of public improvements of the city enacting the same."

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:

"Sec. 7. The general assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. The general assembly shall also make provisions, by general law, whereby any city, town or village, existing by virtue of any special or local law, may elect to become subject to, and be governed by, the general laws relating to such corporations."

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: "This provision of the constitution is both mandatory and prohibitory. Its command is not only that the legislature shall provide for the organization and classification of all cities in the state, but such provision must be by general laws, not special enactments. It then commands the classification of such cities, and interdicts the creation of more than four classes. It further commands, not only that the legislature shall define the restrictions and powers of each of said classes, but also that this shall be done by general law. It then proceeds to declare the purpose of the convention in making this requirement to be `so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions'; the clear intent of which is to prevent the multiplication of classes of municipalities, and the giving to one within the same class different powers and functions, and imposing upon any one restrictions different from those in the same class or division. In short, it is to secure absolute uniformity, by general law, applicable to all the given classes, respecting the faculties with which they might be endowed, and the limitations placed upon their functions by the legislature; so that any person anywhere, desiring to ascertain what are the powers and restrictions of any one city of a given class in the state, could be advised thereof by looking at the `general law' defining such powers and restrictions." 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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