City of St. Louis v. Evraiff

• Decision Date: 03 October 1923
• Docket Number: No. 22412.,22412.
• Citation: 301 Mo. 231,256 S.W. 489
• Parties: CITY OF ST. LOUIS v. EVRAIFF et al.
• Court: Missouri Supreme Court

256 S.W. 489

301 Mo. 231

CITY OF ST. LOUIS v. EVRAIFF et al.

No. 22412.

Supreme Court of Missouri, in Banc.

October 3, 1923.

Motion for Rehearing Denied November 20, 1923.

Error to St. Louis Court of Criminal Correction; Chauncey J. Krueger, Judge.

Action by the City of St. Louis against Morris Evraiff and others, to recover a penalty for violation of an ordinance. To review judgment discharging defendants, the city brings error. Affirmed.

Henry S. Caulfield and Geo. F. Haid, both of St. Louis, for plaintiff in error.

Karl Kimmel, of St. Louis, amicus curiæ.

Glendy B. Arnold, of St. Louis, and Edward M. Bassett, of New York City, for Chamber of Commerce of city of St. Louis.

E. M. Harber, of Excelsior Springs, and John B. Pew, City Counselors, and E. F. Halstead, Asst. City Counselor, both of Kansas City, for Kansas City.

D. D. Holmes, of St. Louis, for city of Richmond Heights.

J. E. Turner, of St. Louis, for University City.

HIGBEE, P. J.

This is an action to recover the penalty prescribed for the violation of certain sections of Ordinance No. 3199 of the city of St. Louis, approved July 15, 1918, known as the "Zoning" ordinance, which prohibits, inter alia, the erection or use of property for the storage of scrap iron, rags, and junk in industrial districts, and permits the establishment and operation thereof in unrestricted districts. The evidence shows that defendants, about October 1, 1918, established and conducted a rag and junk yard at Nos. 2026 and 2028 O'Fallon street, a densely populated section within the industrial district established by the ordinance. The court sustained a demurrer to the evidence on the ground that the ordinance is not authorized by any statute or law of the state and is unreasonable and violative of various sections of the federal and state Constitutions. From the judgment discharging the defendants, the city appealed. Section 2 of the ordinance divides the city into five districts, first residence, second residence, commercial, industrial, and unrestricted districts. The boundaries of the several districts are shown upon a map made a part of the ordinance. The industrial district comprises a little more than one square mile of territory within the city limits. It extends westward from Third street, and, speaking generally, is bisected by Washington avenue, one of the principal streets of the city. Section 3 provides that the use of all buildings and premises at the time of the adoption of the ordinance may be continued. Section 8 provides that no land or building in the industrial district shall be erected or used for about 50 specified trades, industries, or uses, including "scrap iron, junk or rags storage or baling." Section 31 provides that any violation of the provisions of the ordinance shall be deemed a misdemeanor, and subject the offender to a fine of not less than $5 nor more than $500 for each offense. Each day that a violation is permitted to exist shall constitute a separate offense.

The charter of the city of St. Louis provides that it shall have power:

"(25) To define and prohibit, abate, suppress, and prevent or license and regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property, and all other things whatsoever detrimental or liable to be detrimental to the health, morals, comfort, safety, convenience or welfare of the inhabitants of the city and all nuisances and causes thereof.

"(26) To prescribe limits within which business, occupations and practices liable to be nuisances or detrimental to the health, morals, security or general welfare of the people may lawfully be established, conducted, or maintained.

"(34) To enforce any ordinance, rule or regulation by means of fines, forfeitures, penalties, and imprisonment or by action or proceedings in its own courts or in any other court of competent jurisdiction or by any one or more of such means, and to impose costs as a part thereof."

The city of St. Louis is authorized to frame a charter "in harmony with and subject to the Constitution and laws of Missouri." Section 20, art. 9, Constitution. Its charter and ordinances must be subject to and in harmony with the Constitution and laws of the state. St. Louis v. Meyer, 185 Mo. 583, 84 S. W. 914; St. Louis v. Williams, 235 Mo. 503, 508, 139 S. W. 340; State ex rel. v. Jost, 265 Mo. 51, 72, 175 S. W. 591, Ann. Cas. 1917D, 1102; 28 Cyc. 351 (6).

It is insisted by the appellant and denied by the respondents that in the exercise of the police power of the state the city has the power to enact the ordinance in question, and to exclude the designated lines of business from the industrial district. Appellant's counsel say:

"It is one thing to declare something a nuisance without rhyme or reason, but it is Quite another thing to designate a certain territory to be used for certain purposes and prohibit its use for other purposes. In the latter case, the thing prohibited is objectionable, because not permitted within the territory designated, and therefore the carrying on thereof in the proscribed territory is a nuisance in law, whether actually so or not."

In other words, a business is unlawful, not because it is a nuisance, but because it is prohibited.

In Lincoln Trust Co. v. Williams Building Corporation, 229 N. Y. 313, 128 N. E. 209, an ordinance of the city of New York dividing the city into a residence district, a business district, and an unrestricted district was held to be within the police power of the city. In Reinman v. Little Rock, 237 U. S. 171, 35 Sup. Ct. 511, 59 L. Ed. 900, the city of Little Rock, by ordinance, prohibited the maintenance of livery stables within a limited district described in the ordinance. Plaintiffs sued to restrain the enforcement of the ordinance. The opinion recites:

"It was averred [in the answer] that that district is in a densely populated and busy part of the city of Little Rock, and that the stables are conducted in a careless manner, with offensive odors, and so as to be productive of disease. Plaintiffs did not contradict this, but demurred to the answer as insufficient in law, and the cause was heard in the trial court upon the complaint and exhibits, the answer, and the demurrer. The demurrer being sustained, and defendants declining to plead further, a perpetual restraining order followed in due course."

Justice Pitney, 237 U. S. loc. cit. 180, 35 Sup. Ct. 514, 59 L. Ed. 900, in affirming the judgment of the state court which reversed the judgment of the trial court, said:

"If the record, including the opinion, leaves it a matter of doubtful inference upon what basis of fact the state court rested its decision of the federal question, it seems to us very plain, upon general principles, that we ought to assume, so far as the state of the record permits, that it adopted such a basis of fact as would most clearly sustain its judgment. Hence, in the present case, we ought to and do assume that the Arkansas Supreme Court acted upon the basis of the facts set up in the answer of the city, treating them as sufficiently substantiated by the effect of the demurrer in admitting them to be true so far as properly pleaded. This being so, there is, as we have already remarked, no reasonable question of the validity of the ordinance, and the judgment of the Supreme Court is affirmed." The charter of the city of St. Louis authorizes the city—

"to prohibit the erection of soap factories, stock yards, and slaughter houses, pigpens, cow stables, and dairies, coal oil and vitriol factories within prescribed limits, and to remove and regulate the same; and to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health."

In City of St. Louis v. Fischer, 167 Mo. 654, 664, 67 S. W. 872, 875 (64 L. R. A. 679, 99 Am. St. Rep. 614), we said:

"The Assembly may well determine that the keeping of a dairy in the outskirts of a city, where the population is sparse and the areas large, would not be a nuisance, whereas to permit a dairy in the thickly populated portion of the city, or near a schoolhouse, church, or hospital, would seriously endanger the public health, and in the exercise of its plenary powers permit it in the one case and prohibit it in the other without being obnoxious to the criticism of partiality. Under the charter it is given legislative discretion in this matter. In our opinion the ordinance prescribed the limits, and it was entirely proper and lawful to require every person desiring to erect or maintain a dairy to obtain permission by a proper ordinance, and such an ordinance is the only defense to an action like this. St. Louis v. Howard, 119 Mo. 47."

In the Slaughter House Cases, 83 U. S. (16 Wall.) 36 loc. cit. 62 (21 L. Ed. 394), Justice Miller said:

"`Unwholesome trades, slaughter Muses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all' says Chancellor Kent (2 Com. 340), `be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community.' This is called the police power; and it is declared by Chief Justice Shaw that it is much easier to perceive and realize the existence and sources of it than to mark its boundaries, or prescribe limits to its exercise. This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. `It extends,' says another eminent judge, `to the protection of the lives, limbs, health,...