City of St. Louis v. Dorr

• Decision Date: 08 June 1897
• Citation: 41 S.W. 1094
• Parties: CITY OF ST. LOUIS v. DORR et al.
• Court: Missouri Supreme Court

41 S.W. 1094

CITY OF ST. LOUIS v. DORR et al.

Supreme Court of Missouri, Second Division

June 8, 1897

Error to St. Louis criminal court; James R. Claiborne, Judge.

Lorenz Dorr and one Zeller were prosecuted for violating a city ordinance, and discharged, and the city brings error. Affirmed.

W. C Marshall, for plaintiff in error.

Louis A. Steber, for defendant in error Lorenz Dorr.

OPINION

SHERWOOD, J.

The defendants, Dorr & Zeller, were prosecuted in the Second district police court of the city of St Louis for the violation of city ordinance No. 16,669, approved April 22 1892. The alleged violation consisted in carrying on a business avocation, to wit, that of confectioners, in a certain brick building occupied by defendants, situate on the south side of Washington boulevard, contrary to the ordinance aforesaid. In 1891 the general assembly of Missouri passed the act (Acts 1891, p. 47) entitled "An act relating to boulevards in cities having a population of three hundred thousand inhabitants or more." The first section of the act prescribes 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 said boulevard, *** and may convert existing streets into boulevards," etc. Pursuant to this power and authority the municipal assembly of St. Louis enacted Ordinance 16,669, entitled "An ordinance relating to Washington boulevard," approved April 22, 1892. By this ordinance that portion of Washington avenue between Grand avenue and King’s highway was established as a boulevard, to be known as "Washington Boulevard." The third section of the ordinance is as follows: "Sec. 3. The houses fronting or bordering on Washington boulevard, between Grand avenue and King’s highway, shall be used as residences only, and no business avocations whatever shall be allowed to be followed in same." The ordinance makes it a misdemeanor to violate this section. The case being tried in the Second district police court, on March 23, 1894, defendants were found not guilty. The city appealed to the court of criminal correction, where, upon a trial being had, it was admitted that the defendants were doing business in said building, No. 3924 Washington boulevard, as charged in the pleadings, by carrying on the business of manufacturing and selling confections. The first floor of the building was used as a business house, and consisted of one main storeroom about 30 feet wide, with a driveway running through the building inside of the outside walls of the building, for the purpose of loading and unloading wagons. Defendants had formerly carried on the same kind of a business at the northeast corner of Vandeventer avenue and Washington boulevard, and about March, 1894, completed this building, moved into it, and opened up their business at that point. At the close of the evidence, defendants made an oral motion to be discharged, claiming that the ordinance is unconstitutional and void, "in this: that it attempts to deprive the defendants of the use of their property, and it attempts to appropriate and damage the use of their property, for either public or private use; also, that it does not appear that there had been any steps taken to condemn this property, or the use of this property, for special use, or for special restriction, and it is to deprive the defendants of the gains of their own industry; that it is in violation of the first section of the fourteenth amendment of the federal constitution, in attempting to deny these defendants the equal protection of the laws." The court granted said oral motion and discharged defendants, and the city brought error. The questions thus presented by the record are altogether constitutional ones.

1. It has been suggested that the act approved March 26, 1891, a portion of which has heretofore been quoted, is constitutionally invalid, because the legislature has no power to amend the charter of St. Louis. While it is true that the legislature is, by section 53 of article 4 of the constitution, in express terms forbidden to pass any local or special law "regulating the affairs of counties, cities," etc., "*** or incorporating cities," etc., "or changing their charters," yet this prohibition only applies to "local or special laws," and has no application or reference whatever to general laws, because in regard to these the constitution is very emphatic. In section 20, art. 9, when providing for a new charter for the city of St. Louis, it is distinctly stated that such charter shall be "in harmony with, and subject to the constitution and laws of Missouri." This emphasis touching the subjection in manner as aforesaid of the charter of the city of St. Louis is repeated in a subsequent section of the same article of the organic law. Thus, in section 22 provision is made for amendments to the charter of the city of St. Louis, and section 23 thereupon says, "Such charter and amendments shall always be in harmony with and subject to the laws of Missouri." Nay, more, at the close of the article, as if to make "assurance doubly sure," section 25 declares, "Notwithstanding the provisions of this article, the general assembly shall have the same power over the city and county of St. Louis that it has over other cities and counties of this state." These plain provisions of the constitution have been enforced by this court on several occasions. Thus, in Ewing v. Hoblitzelle, 85 Mo. 64, a law in relation to registration in cities having a population of 100,000 inhabitants or more was held to be not a local or special law, but a general law, and as such it was competent for the legislature to pass such a law, and that under the sections in article 9 of the constitution, already cited and quoted, such law providing for the appointment by the governor of a "recorder of voters" would prevail over and abrogate section 15 of article 2 of the charter of St. Louis, by which section the mayor was given power to appoint four judges of election. In State v. Dolan, 93 Mo. 467, 6 S.W. 366, the charter of the city of Kansas provided for the election of a supervisor of registration, but afterwards the act of 1883 created the office of recorder of voters, and this court held that the act of the legislature on that point repealed the charter. Ewing v. Hoblitzelle, supra, was cited as confirmatory of that position. In State v. Miller, 100 Mo. 439, 13 S.W. 677, it was ruled that an act which fixed the number of directors in public school boards by providing that "in all cities of this state now having or hereafter attaining, a population of over three hundred thousand inhabitants," etc., was a general law, although judicial notice would be taken of the fact that only one city in this state at the time had such a population. So, also, in State v. St. Louis & S. F. Ry. Co., 117 Mo. 1, 22 S.W. 910, it was ruled that the general law for the extension of taxes levied on railroad property was in direct conflict with the charter of the city of St. Louis, but that notwithstanding this the general law should prevail, and this on the ground that the legislature had the power to alter or amend the charter of the city of St. Louis; citing Ewing v. Hoblitzelle, supra. So, also, in State v. Bell, 119 Mo. 70, 24 S.W. 765, the act of 1893 was discussed, which created the office of excise commissioner. Its first section made it applicable to all cities "which now have or may hereafter have a population of two hundred thousand inhabitants." And it was ruled that it was a general law, and not a local or special one, and that although by the terms of its charter the city had the power to "license, tax and regulate dramshops" (article 3, § 26, par. 5), and although the ordinances of the city passed pursuant to the charter had theretofore required the collector to issue licenses for dramshops both for state and city purposes (article 4, § 1461, Rev. Ord. 1892), and to collect all revenues (section 40, c. 3, p. 439, Rev. Ord. 1892), yet that the law thus passed by the legislature repealed the ordinances in conflict therewith, and turned over the issuance of all licenses, both for state and city, to such excise commissioner."

Another and different class of cases will now be mentioned, and which are easily distinguishable from those heretofore examined where the acts in question were held to be general laws. Thus, in State v. Herrmann, 75 Mo. 340, the act of 1881 provided in its caption, as well as in its first section, that it applied only to "all cities having a population of 100,000 inhabitants or more"; and section 4 of that act repealed all inconsistent acts, and abolished "the office of any notary public in such city holding a commission bearing date prior to the passage of this act, and whose term of office has as such notary public not expired at the time this act becomes a law." And it was there held that inasmuch as we took judicial notice of the population of cities, and of the fact that St. Louis was the only city in the state that at the time of the passage of the act had that number, or which by the usual increase of population could be expected to have that number when the act took effect, therefore it was to be regarded as intended to apply alone to the city of St. Louis,-as much so as if named therein. And further it was held that inasmuch as section 4 of the act could only apply to an "existing state of facts," and could not...