City of St. Louis v. St. Louis World Pub. Co.

• Citation: 227 Mo. 146,126 S.W. 1019
• Parties: CITY OF ST. LOUIS v. ST. LOUIS WORLD PUB. CO.
• Decision Date: 31 March 1910
• Court: United States State Supreme Court of Missouri

126 S.W. 1019

227 Mo. 146

CITY OF ST. LOUIS v. ST. LOUIS WORLD PUB. CO.

Supreme Court of Missouri. Division No. 1.

March 31, 1910.

Appeal from St. Louis Court of Criminal Correction; Hiram N. Moore, Judge.

Action by the City of St. Louis against the St. Louis World Publishing Company for the violation of an ordinance. From a judgment for plaintiff, defendant appeals. Reversed, and defendant discharged.

E. M. Grossman and Lehmann & Lehmann, for appellant. L. E. Walther and B. H. Charles, for respondent.

LAMM, P. J.

Defendant was informed against in the police court in the city of St. Louis for that it violated section 1447 of ordinance 19,991, reading: "Any person who shall, in the City of St. Louis, advertise or cause to be advertised in any newspaper printed or circulated in said city, or who shall print or publish any advertisement or notice in any newspaper printed or circulated as aforesaid, purporting to give information as to the treatment of venereal or private or womb diseases, or impotency, self-abuse, sterility or any disease pertaining to the genital organs, or purporting to give information from whom or where medical treatment or medicine may be procured in the above-mentioned cases, or any of them, shall be guilty of a misdemeanor, and upon conviction, shall be fined not less than fifty nor more than five hundred dollars for each and every offense." Found guilty and fined $50; defendant appealed to the court of criminal correction. Meeting a like fate in that court, it comes here.

The trial was on an agreed statement of facts to the effect following: Defendant is a domestic corporation domiciled in St. Louis, is publishing a daily newspaper, the St. Louis World, circulated in that city, in this state, and in other states; that on February 15, 1906 (and on days and issues prior thereto), it published in its said newspaper the advertisement of Drs. S. and D. Davieson set forth in the information. That advertisement reads:

"First American Nervo-Vital Specialists. Thirty Years in St. Louis — Professionally Reputable. Drs. S. & D. Davieson, T 11 South Broadway, St. Louis, Mo. We Cure Stricture, Varicocele, Loss of Manly Vigor, Nervous Debility, Private Diseases and Contagious Blood Poison. Museum of Anatomy. Located in the three-story Davieson Building; is one of the most unique and interesting exhibits in St. Louis. This exhibit consists of a collection of anatomical and physiological models, supplemented by collections illustrating art, science, nature and mineralogy. This collection was designed to afford the public the opportunity of learning `how to live, move and have our being.' You can here find, correctly illustrated, typical cases of every disease man is afflicted with. The admission is Twenty-five Cents. Home Treatment. A large percentage of afflicted men may be cured in their own homes by taking advantage of our mail treatment. We furnish Charts and Blanks, which, when properly filled out, will enable us to make a Correct Diagnosis and formulate the proper Curative Remedies. If it is impossible for you to call, write for blanks. Free Consultation at the office from 10 a. m. to 4:30 p. m. and 6:30 to 8 p. m. Daily; Sundays, 10 a. m. to 1 p. m. only. We want every man suffering from any form of private disease to have our 72-page book mailed to them free on application. Drs. S. & D. Davieson, 11 South Broadway, St. Louis, Mo."

In one way or another, first by demurrer, then by declarations of law refused, and finally by motions for a new trial and in arrest, defendant asked the court to rule, in effect, that said ordinance violated section 6258, Rev. St. 1899 (Ann. St. 1906, p. 3129), reading: "Any municipal corporation in this state, whether under general or special charter, and having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the state, unless otherwise prescribed or authorized by some special provision of its charter, shall confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the state law upon the same subject." Violated enumerated sections of the state Constitution. Also, that the ordinance was beyond plaintiff's charter powers, was inconsistent with the general laws of the state on the same subject, that the complaint does not state facts sufficient to constitute a cause of action, and does not allege any violation of the laws of the state or ordinances of the city. The statute declarative of state policy (said to be out of harmony with the ordinance) is section 2177, Rev. St. 1899 (Ann. St. 1906, p. 1396), reading: "Every person who shall manufacture, print, publish, buy or have in his possession with intent to sell or circulate, or shall sell, give away,...