City of St. Louis v. Liessing

• Citation: 89 S.W. 611,190 Mo. 464
• Parties: CITY OF ST. LOUIS v. LIESSING, Appellant
• Decision Date: 20 October 1905
• Court: Missouri Supreme Court

89 S.W. 611

190 Mo. 464

CITY OF ST. LOUIS v. LIESSING, Appellant

Supreme Court of Missouri

October 20, 1905

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

Affirmed.

E. F Stone for appellant.

(1) The production, sale and distribution of dairy products is a legitimate and lawful occupation or business, conducted as a matter of right and not as a privilege. Unusual and arbitrary restrictions cannot be lawfully imposed upon it by ordinance nor can harsh, expensive and burdensome provisions be enacted against persons engaged in an innocent and useful business so as to deprive them of the right to devote their property thereto and obstruct their freedom and liberty. Ex parte Withness, 98 Cal. 78; Matter of Jacobs, 98 N.Y. 110; State ex rel. v. Ashbrook, 154 Mo. 395. An ordinance cannot, without reason, arbitrarily infringe upon the liberty or the property rights of any person or class of persons within the protection of the Constitution, under the plea that it is a police regulation for the protection of the public health. It must not go further than is necessary and appropriate, and must not require things to be done, burdens to be carried, property consumed or rights sacrificed when unnecessary for the protection of health. People v. Gillson, 109 N.Y. 389; Slaughter-House cases, 16 Wall. 106; State v. Julow, 129 Mo. 163; State v. Fisher, 59 Mo. 174. (2) An ordinance may be adjudged unreasonable, oppressive, partial and vexatious by the courts and declared null and void, and it must be reasonable, impartial, and not oppressive or it will be declared invalid and unconstitutional. Cooley, Const. Lim., 280; Beach on Pub Corp., sec. 512; Freund on Police Power, sec. 142; Corrigan v. Gage, 68 Mo. 545; Fire Dept. v. Gilmore, 149 N.Y. 453; Ritchie v. People, 155 Ill. 98; Frost v. Chicago, 178 Ill. 250; Fryman v. Chicago, 78 Ill. 405; City of Clinton v. Phillips, 58 Ill. 102; State v. Railroad, 68 Minn. 385; State v. Mayor, 37 N.J.L. 351; Nicoulin v. Lowry, 49 N.Y.L. 394; Matter of Frazee, 63 Mich. 397; Kirkham v. Russell, 76 Va. 962; Yates v. Milwaukee, 10 Wall. 497; Kneedler v. Bonough, 100 Pa. 373; White v. Railroad, 44 Mo.App. 542; City v. Starke, 93 Mo.App. 70. (a) The mode or manner of the exercise of a power expressly granted may be so unreasonable or oppressive as to call for judicial intervention. Halpin v. Campbell, 71 Mo. 493; 1 Dillon on Mun Corp. (3 Ed.), sec. 328; McQuillin, Mun. Ord., secs. 78 and 185; Kirkham v. Russell, 76 Va. 961; Zumalt v. Railroad, 71 Mo.App. 670. (b) And an ordinance must be fair, impartial and uniform in its operation. McQuillin, Mun. Ord., sec. 193; Nichols v. Walter, 37 Minn. 273; State v. Sheriff, 48 Minn. 241; State ex rel. v. Currens, 111 Wis. 431; Caldwell v. Texas, 137 U.S. 698; Railroad v. Matthews, 174 U.S. 104; Plessy v. Ferguson, 163 U.S. 550; Lawton v. Steele, 152 U.S. 143. (3) An ordinance which commits to the will of a single official the practically absolute power of controlling the use of some well-known means of commercial or social activity, not a nuisance, is prima facie unreasonable and oppressive, beyond the domain of law, and will be pronounced unconstitutional and void. Tiedman on Mun. Corp., sec. 151; Mayor v. Radecke, 49 Md. 218; Matter of Frazee, 63 Mich. 396; St. Louis v. Karr, 85 Mo.App. 617. And will be declared unreasonable and oppressive in its operation when taken as an entirety. Ex parte Withness, 98 Cal. 85; Willow Spgs. v. Withaupt, 61 Mo.App. 275. Section 1 of Ordinance 20808 provides that "the inspection and control of the quality of milk and cream produced, sold or offered for sale in the city of St. Louis is hereby placed in charge of the city chemist." The word "control" means "to check, restrain, govern, dominate, direct, regulate and have under command." 7 Am. and Eng. Ency. Law, 457. The ordinance must contain permanent legal provisions, operating generally and impartially, for its enforcement cannot be left to the will of any officers of the corporation. Bennet v. Birmingham, 31 Pa. 15; Baltimore v. Radecke, 49 Md. 217. (4) Duties and powers imposed by charter upon designated departments or officers cannot be by ordinance delegated or surrendered to other officers or departments. Oakland v. Carpenter, 13 Cal. 545; State v. Fiske, 9 R. I. 94; Dillard v. Webb, 55 Ala. 468; McQuillin, Mun. Ord., sec. 85; Benjamin v. Webster, 100 Ind. 15; Bryan v. Page, 51 Tex. 535; Warner v. People, 43 Am. Dec. 740. (5) Ordinance No. 20808 is invalid and ineffectual as an entirety, as being in conflict with prior general ordinance No. 19991, sections 478, 481, 483 and 484, said prior general ordinance not having been expressly repealed, as required by the charter. Municipal Code of St. Louis, pp. 223, 536, 537; St. Louis v. Sanguinet, 49 Mo. 581; Lemovine v. St. Louis, 72 Mo. 406. (6) Said ordinance is unconstitutional and void, because it violates the 14th amendment of the Constitution of the United States which provides: "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," and also, section 30, of art. 2 of the Constitution of Missouri, "That no person shall be deprived of life, liberty, or property without due process of law." State v. Julow, 129 Mo. 172; 2 Story on Const. (5 Ed.), sec. 1950; People ex rel. v. Otis, 90 N.Y. 48; State v. Loomis, 115 Mo. 307; State v. Walsh, 136 Mo. 406; Cooley, Const. Lim. (6 Ed.), 484; Bank v. Oakley, 4 Wheat. 236; Wallys Heirs v. Kennedy, 2 Yerg. 554. And "no State shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States." In re Jacobs, 98 N.Y. 98; State v. Loomis, 115 Mo. 307. (7) When an ordinance upon which all legislation pertaining to the same subject-matter rests, and which prescribes the duties and powers of the officer or officers who are to enforce the law should be invalid, then all subsequent ordinances resting thereon for their enforcement, application and operation are invalid, for the reason that they must be construed together. Ordinance 17157 is void upon its face as being in violation of charter provision relating to the exercise of the appointing power, and the removal of officers and their assistants. Sec. 5, 7, 8, 9, 11 and 14, art. 4, charter; State v. Rackliffe, 164 Mo. 460; Carleton v. People, 10 Mich. 258. An ordinance which adds to, takes away or limits in any manner the mode or method of the exercise of the power of appointment and removal conferred by charter is void and ineffectual. State ex rel v. Johnson, 123 Mo. 43; State v. Hamey, 168 Mo. 167; Horan v. Lane, 53 N.J.L. 275; Commonwealth v. Crogan, 155 Pa. 448; Saunders v. Lawrence, 141 Mass. 380; McQuillin, Mun. Ord., secs. 4 and 15; People ex rel. v. Mount, 186 Ill. 568; Volk v. Newark, 47 N.J.L. 117; Uffert v. Vogt, 65 N.J.L. 621; Lowe v. Commonwealth, 3 Met. (Ky.) 237; State v. Wiltz, 11 La. Ann. 439; People v. Draper, 15 N.Y. 552; People v. Raymond, 37 N.Y. 433. Corporate acts must be done by such officers or agents, and in such manner as the charter directs, and the expression of one mode of appointment or removal in the charter, excludes all others, and an ordinance altering or modifying the mode is void. City v. Eddy, 123 Mo. 558; McQuiddy v. Brannock, 70 Mo.App. 546; State v. Lund, 167 Mo. 228; People v. Albertson, 55 N.Y. 55. And defendant can in this action set up as a defense the invalidity and unconstitutionality of either or both of said ordinances. The constitutionality of any law under which any right is claimed or prosecution is had may be inquired into. Meagher v. Count of Story, 5 Nev. 250; State v. Morris, 47 La. Ann. 1660; Cincinnati v. Craft, 8 Ohio Dec. 672; Austin v. Austin, 87 Tex. 330; State v. Butler, 178 Mo. 336; Ex parte Snyder, 64 Mo. 58. (8) The city has power under its charter, "By ordinance not inconsistent with the Constitution or any law of this State, or of this charter," "to make provision for the inspection of milk," nowhere is it authorized to prohibit directly or indirectly the sale of milk. Nor is it expressly empowered to regulate the sale of milk, and if such power exists at all, it is but an implied or incidental one. Under the power to inspect, the city chemist can not directly or indirectly prohibit or prevent the sale of milk that is not unwholesome or unhealthy. An ordinance that operates to prohibit the sale of good and healthy milk would be void. Even the power to regulate will not be construed to include the power to prohibit. Surely, then, the power to provide for inspection cannot include the power to prohibit. Even the power to inspect and regulate will not include the power to prohibit. (9) Ordinances which tend to restrain competition and create monopolies, or tend to confer exclusive privilege are generally condemned. "They are void because they interfere with the liberty of the individual to pursue a lawful trade or employment." Chicago v. Rumpf, 45 Ill. 90; City of Cairo v. Fuechter, 159 Ill. 155; People v. Gas Trust Co., 130 Ill. 268; McQuillin, Mun. Ord., sec. 189; Yick Wo v. Hopkins, 118 U.S. 371; Butchers' Union v. Crescent City Co., 111 U.S. 762; Marshall & Bruce Co. v. City, 71 S.W. 618.

Chas. W. Bates and Wm. F. Woerner for respondent.

(1) None of the objects sought to be secured by municipal government is of more importance than the health of the inhabitants, and ordinances or statutes having such in view must be upheld as an exercise of the police power of the State delegated to the city. St. Louis v. Galt, 179 Mo. 18; Ferrenbach v. Turner, 86 Mo. 420; Smith's Mod. L. Mun. Corp., sec. 1322; Crossman v Lurman, 192 U.S. 197; People v. Girard, 145 N.Y. 109. Nor do the provisions of the ...