City of St. Louis v. R. J. Gunning Company

• Decision Date: 23 March 1897
• Citation: 39 S.W. 788,138 Mo. 347
• Parties: The City of St. Louis v. The R. J. Gunning Company, Appellant
• Court: Missouri Supreme Court

39 S.W. 788

138 Mo. 347

The City of St. Louis v. The R. J. Gunning Company, Appellant

Supreme Court of Missouri, Second Division

March 23, 1897

Appeal from the St. Louis Court of Criminal Correction. Hon. James R. Claiborne, Judge.

Reversed.

Jos. S Laurie for appellant.

(1) The ordinance is void as being unreasonable and repugnant to fundamental rights. State v. Clark, 54 Mo. 17; St. Louis v. Railroad, 89 Mo. 44; City of Tarkio v. Cook, 120 Mo. 1. (2) All municipal by-laws passed under the implied power to make by-laws or under a general charter power to make such by-laws as are necessary for the public welfare, must be reasonable in their character and effect and not repugnant to fundamental rights of citizens. Dillon, Mun. Corp. [4 Ed.], sec. 319; Tied. Mun. Corp., sec 150. (3) This is a question to be determined, not by a jury but by the court as a matter of law. City of St. Louis v. Weber, 44 Mo. 547; Beach, Mun. Corp., sec. 542. Such unreasonableness may be shown by evidence, but when it appears on the face of the ordinance evidence is unnecessary. Id., sec. 513. (4) In determining the reasonableness of an ordinance the court must take into consideration all the circumstances of the case, the necessity for the ordinance, the object sought by its enactment and its general operation and effect. Tied. Mun. Corp., sec. 159; Dillon, Mun. Corp. [4 Ed.], sec. 327; Corrigan v. Gage, 68 Mo. 541; Cooley, Const. Lim. [6 Ed.], p. 241. (5) An owner of property can not be prohibited by an ordinance from conducting thereon a lawful business, unless the health, safety or comfort of the surrounding community requires its exclusion. Ex parte Whitwell, 98 Cal. 73; Railroad v. City of Jacksonville, 67 Ill. 40; St. Louis v. Weber, 44 Mo. 550; City of St. Louis v. Fitz, 53 Mo. 582. (6) Said ordinance was unnecessary. It is "but a limitation without reason or necessity and can not be enforced." Crawford v. City of Topeka, 52 Kan. 756. (7) It does not tend to promote the safety of the public. (8) It arbitrarily excludes all material other than sheet metal. (9) The ordinance is repugnant to fundamental rights.

W. C. Marshall for respondent.

(1) Judgment in this case having been entered on the twenty-fourth of October, 1893, and no affidavit for an appeal having been filed on that day, and no reason appearing by the record why it was not done, the filing of the affidavit and bond on the next day -- the twenty-fifth of October, 1893 -- was too late, and conferred no jurisdiction on the Court of Criminal Correction, or on this court. State v. Epperson, 4 Mo. 90; Cox v. State, 9 Mo. 181; Thomas v. State, 10 Mo. 235; State v. Anderson, 84 Mo. 524; State v. Herman, 20 Mo.App. 548; DeSoto v. Merciel, 53 Mo.App. 57. (2) The first objection to the ordinance, to wit, that it is unnecessary, seems to me hardly deserving of serious contention. The manifest purpose of the ordinance was to prevent the doing of just such acts as this defendant was guilty of, that is, putting up signs that are combustible and easily ignitable, and which would have a tendency to cause fire to spread to other parts of the same building or to adjoining buildings, and do damage to other people's property. "It is an established principle in this country that so long as the legislature does not pass the limits fixed by the Constitution, the courts have no authority to interfere on the ground that the legislative acts in question violate the natural principles of justice and right." Tiedeman's Limitations of Police Power, sec. 2; State v. Wheeler, 25 Conn. 290; Wynehamer v. People, 13 N.Y. 378; Doe v. Douglass, 8 Blackf. (Ind.) 10; Stein v. Mobile, 24 Ala. 614; Boston v. Cummins, 16 Ga. 102; Hamilton v. St. Louis Co. Ct., 15 Mo. 23.

Jas. S. Laurie for appellant in reply.

(1) Appeals from the police court are not governed by the provisions of the city charter and ordinances, but by the statute investing the St. Louis Court of Criminal Correction with jurisdiction of appeals from the police court of the city of St. Louis and providing the manner in which such appeals shall be taken (R. S. 1889, p. 2154, sec. 14; p. 2157, sec. 36). (2) Respondent's construction of the charter (art. 4, sec. 25) is not correct. Said section provides, as we have seen, that an appeal from the police court shall be taken "in like manner as provided by law for appeals from justices of the peace in criminal cases to their appellate courts." This clause, we submit, refers to the law governing appeals from justices of the peace in criminal cases as it existed at that time, at the date of the charter, 1876. Under such law as it existed at said date, said appeals from justices of the peace might have been taken within ten days (G. S. 1865, p. 727, sec. 15). (3) The term "immediately" as construed by the courts, is not limited to its literal signification. It does not signify instantly, or even on the same day, but means within a reasonable time. Anderson v. Goff, 72 Cal. 34; Sorenson v. Swensen, 55 Minn. 58; Burchart v. Sasady, 18 Iowa 342; Kentzler v. Ins. Co., 88 Wis. 598; McFarland v. Ins. Co., 124 Mo. 204.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is a prosecution by the city of St. Louis against defendant for violation of a city ordinance regulating the erection of signs on the top or street front of any building in said city.

The ordinance is as follows: Rev. Ord. 1887, section 721: "Any sign, of whatever material it may be constructed, now erected, or that hereafter may be erected, on the top or street front of any building that may now be, or that may hereafter become rotten or unsafe, shall be taken down or removed; and any sign, that may hereafter be constructed on the top or street front of any building, which shall be over three feet in height, shall be constructed of sheet metal."

The complaint is as follows:

"State of Missouri, "City of St. Louis.] ss.

"St. Louis, Mo., September 23, 1893.

"The R. J. Gunning Company, a corporation, to the city of St. Louis, Dr. to five hundred dollars for the violation of an ordinance of said city, entitled 'An Ordinance in revision of the ordinances of the city of St. Louis, and to establish new ordinances provisions for the government of said city,' being Ordinance No. 14000, Sections 721 and 726, approved April 12, 1887, in this, to wit: In the City of St. Louis, State of Missouri, on the 15th day of September, 1893, and on divers other days and times prior thereto, the said R. J. Gunning Company, a corporation, did then and there on premises at the northeast corner of Washington avenue and Broadway, erect and construct and cause to be erected and constructed certain signs on the street front of the building over three feet high, not constructed of sheet metal, contrary to the ordinance in such case made and provided. On information of G. B. Reid, Building Commissioner.

"Jas. G. Butler,

"City Attorney of the City of St. Louis."

A motion to quash the complaint was made in the St. Louis Court of Criminal Correction as follows:

First, said complaint is vague, indefinite and describes no offense. Second, the ordinance upon which said complaint purports to be based is void because: First, it is unwarranted by the charter; second, it is unreasonable on the face of it; third, it is repugnant to fundamental rights.

The defendant was convicted before the police justice on October 24, 1893, and fined $ 100, and on the twenty-fifth day of October, 1893, filed its affidavit and appeal bond for an appeal to the St. Louis Court of Criminal Correction. In that court defendant moved to quash, but its motion was overruled, and upon a trial it was again convicted and fined $ 100. Motions for new trial and in arrest were duly filed and overruled, and it has appealed to this court, which has jurisdiction because the city of St. Louis is a party.

The evidence discloses that in September, 1893, there was a five-story business building on the northeast corner of Broadway and Washington avenue in St. Louis. The lower floor was occupied by the Parisian Cloak Company, and the remaining four upper floors were unoccupied. Some time in September the defendant company, whose business is advertising, took charge of the four upper floors, erected scaffolding and put up signs. These signs were made of muslin, which was nailed to scantling frames about four inches wide. These signs covered the windows of the upper floors. They were the length of the building, and in width twelve or fourteen feet. They were in several sections.

The manager of the Parisian Cloak Company complained, and the building commissioner inspected the signs and notified defendant it was violating the ordinance, and directed it to remove the signs. It declined to do so, and this prosecution was thereupon instituted.

I. Preliminary to an investigation of defendant's assignments of error must be determined the question raised by the city counselor that this court is without jurisdiction. The objection is based upon the fact that defendant was tried and convicted before the police justice on October 24, 1893, and took no steps for an appeal until October 25; the contention of the city counselor being that the defendant was required to appeal "immediately," and that he was required to file his affidavit for appeal on the day of his conviction, if he proposed to appeal. He relies upon section 25, of article 4 of the charter of St. Louis, which provides that: "The police justices, or any acting justices pro tem., shall have jurisdiction over all cases arising under this charter, and of the violation of any ordinance, or of any provisions of this charter, subject to appeal, either by the city or defendant, to the St. Louis Court of Criminal Correction, in like...