City of St. Louis v. Kellman
| Decision Date | 18 July 1922 |
| Parties | CITY OF ST. LOUIS v. HARRY KELLMAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction. -- Hon. A. A Hochdoerfer, Judge.
Affirmed.
Wm. L Bohnenkamp for appellant.
(1) Clauses 26 and 32 of Section 53, Article IV, Constitution of Missouri, forbidding the passage by the Legislature of special laws and those granting special privileges apply to municipal corporations as well as to the Legislature. St Louis v. Construction Co., 244 Mo. 479. The charter of St. Louis is founded upon express provisions of the Constitution which provided that such charter shall be subject to the Constitution and in harmony with its provisions. The new charter is subject to the same provisions. Mo. Constitution, secs. 20, 22 and 23, art. 9. The Constitution forbids the passage of any local or special law granting to any person any special right, privilege or immunity. Mo. Constitution, cl. 26, sec. 53, art. 9. And this provision applies as well to the city of St. Louis as to the State. Hays v. Poplar Bluff, 263 Mo. 533. (2) Said ordinance violates Section 30, Article II, Constitution of Missouri, which provides "that no person shall be deprived of life, liberty or property without due process of law." And also violates the provisions of Amendments V and XIV of the Constitution of the United States. State v. Julow, 129 Mo. 172. Sections 17, 18, 19, 20 and 21 of said Ordinance No. 28646 are also invalid as being in violation of the Constitution of Missouri and of the United States in that the Board of Aldermen undertook by way of a revision of certain ordinance provisions to declare it unlawful to engage in the production, sale and distribution of dairy products in said city of St. Louis, keep a dairy, sell, prepare for sale or offer for sale, such products within said city, or bringing into the city for sale such products without a special permission so to do from the Board of Public Service, said board being therein expressly authorized to exercise its discretion and will in granting, refusing or revoking such permits. This amounts to a delegation of the legislative power of the city to a mere board or boards, and therefore said sections of said ordinance are invalid and unconstitutional. Hays v. Popular Bluff, 263 Mo. 516-534; St. Louis v. Atlantic Quarry Co., 244 Mo. 479; St. Louis v. Dreisverner, 243 Mo. 217; St. Louis v. Hill, 116 Mo. 527-533; Elkhart v. Murray, 165 Ind. 304; Barthet v. New Orleans, 24 F. 63; State v. Mahner, 43 La. Ann. 496; State v. Dubarry, 44 La. Ann., 1117; Newton v. Balger, 143 Mass. 598; State v. Tenant, 110 N.C. 609-612. This ordinance not only prevents and prohibits the citizen from selling, offering for sale or producing dairy products within the city, but it also prevents and prohibits him from bringing such products into the city for sale without first making application for a permit so to do in the office of the Board of Public Service and be granted such a permit by said board. This provision deprives a citizen of his liberty and property without due process of law and is unconstitutional. State v. Miksicek, 225 Mo. 561; State v. Bottling Co., 261 Mo. 300; State v. Tie & Timber Co., 181 Mo. 536; State v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 407; Wooley v. Mears, 226 Mo. 49; Lochner v. New York, 198 U.S. 45; Allyeyer v. Louisiana, 165 U.S. 588. (3) An ordinance which establishes no provisions by which its impartial enforcement can be secured, but invests the board or an officer with an arbitrary power to decide in what cases it shall be enforced and who shall be exempt from its operation and which may be exercised only in the interest of a favored few, is void as being unreasonable and discriminating. Section 36 of this Ordinance is null and void as coming within the above rule: St. Louis v. Heitzeberg Packing Co., 141 Mo. 375; Yick Wo. v. Hopkins, 118 U.S. 366. (4) Sections 28 and 36 of said ordinance are invalid, null and void for the reason that they operate to prevent and prohibit the bringing into the city and the sale and distribution therein of unpasteurized milk except as per the arbitrary will and the combined tyrannical and despotic discretion of certain officers or boards of said city. State v. Goodwill, 33 W.Va. 179; Yick Wo v. Hopkins, 118 U.S. 366; In re Wo Lee, 26 F. 471; 6 Am. & Eng. Ency. Law, p. 966. (5) Should either Section 28 or 36 be declared void (we contend both should be declared void), the entire ordinance is void and must be so found. This ordinance is an entirety. It is intended to be a complete system of regulations in the form of a by-law providing for the production, sale, handling and distribution of milk and milk products. Hays v. Poplar Bluff, 263 Mo. 534; State v. Gordon, 236 Mo. 170; Austin v. Murray, 16 Pickering, 121-126; Nalley v. Insurance Co., 250 Mo. 452; Hannibal v. Telephone Co., 31 Mo.App. 31; 21 Am. & Eng. Ency. Law, p. 994. (6) Section 36 is also void as being a delegation of legislative power to the health commissioner. Said commissioner is only a ministerial officer and possesses no legislative power of any kind. State v. Carlisle, 235 Mo. 251; Merchants Exchange v. Knott, 212 Mo. 636-642; Neill v. Gates, 152 Mo. 594; McQuillin on Municipal Ord. sec. 88. (7) Said ordinance is wholly void and invalid for the reason that its inevitable tendency and effect is to create, establish and encourage monopoly and be injurious to the public. From its very provisions its natural and necessary consequences are to control prices, limit production or suppress competition in such manner as to restrain trade and create and sustain monopoly. Town of Kirkwood v. Highlands Packing Co., 94 Mo.App. 637; State v. Armon, 173 Mo. 387; City of Lamar v. Wideman, 57 Mo.App. 507; City of Chicago v. Rumpff, 45 Ill. 90-96; Ex parte McKenna, 126 Cal. 429; Trigman v. City of Chicago, 78 Ill. 405; Ennison v. Chicago & C. R. Co., 45 Minn. 370; McQuillin, Munc. Corp. secs. 729, 736, 738, 189; 20 Am. & Eng. Ency of Law, p. 850. (8) Ordinance No. 28648 is invalid as being in violation of Section 13, Article IV, of the Charter, providing that "no bill shall contain more than one subject," which shall be clearly expressed in the title. State v. Revelle, 257 Mo. 538; City of Kansas v. Payne, 71 Mo. 159; City v. Wortman, 213 Mo. 140; State v. Pursinger, 76 Mo. 346; State v. Great Western Tea Co., 171 Mo. 634. (a) Section 38 of said ordinance constitutes a separate and independent subject from the subject stated in the title. Then clearly the ordinance is double and unconstitutional, both on that account and also for the reason that it is not stated in the title to the ordinance. (b) Said oridnance is also void as containing a subject or subjects entirely foreign to the one expressed in the title, to-wit, repeal and amendment. Vincent v. Knox, 27 Ark. 282; Falconer v. Robinson, 46 Ala. 348; 26 Am. & Eng. Ency. Law, p. 572.
Henry S. Caulfield and George F. Haid for respondent.
(1) Appellant not having endeavored to secure a permit is in no position to attack the validity of the ordinance in question. State v. Baskowitz, 250 Mo. 89; Alaska Mexican Gold Mining Co. v. Territory of Alaska, 236 F. 70; Gundling v. Chicago, 177 U.S. 186. (2) The subordination of property rights to the just exercise of the police power is as complete as is the subjection of these rights to the proper exercise of the taxing power. Kidd v. Pearson, 128 U.S. 1. (3) A lawful business is subject to the police power of the city vested in it by the State. City of St. Louis v. Grafeman Dairy Co., 190 Mo. 504; State ex rel. Lieberman v. Van DeCarr, 199 U.S. 562; Hadacheck v. Los Angeles, 239 U.S. 410. (4) An ordinance should be upheld if it can be construed as valid. Bledsoe v. Stallard, 250 Mo. 165; State ex rel. v. Mason, 153 Mo. 49. And every possible presumption is in favor of validity. Sinking Fund Cases, 99 U.S. 718. (5) An ordinance or statute should be so construed, if possible, as to bring it in harmony with the Constitutional provisions. State ex rel. v. Atkinson, 271 Mo. 42; Hooper v. California, 155 U.S. 648. (6) The ordinance does not violate the provisions of the Constitution of the United States and is a valid exercise of the police power of the city. State ex rel. Lieberman v. Van DeCarr, 199 U.S. 562; Gundling v. Chicago, 177 U.S. 187; Powell v. Pennsylvania, 127 U.S. 678; State v. Addington, 77 Mo. 110; State v. Bockstruck, 136 Mo. 335; St. Louis v. Fisher, 167 Mo. 654; Hadacheck v. Los Angeles, 239 U.S. 410. (7) Discretionary power conferred upon administrative boards to grant or withhold permission to carry on a trade or business under a regulative ordinance does not render the ordinance unconstitutional. State ex rel. Lieberman v. Van De Carr, 199 U.S. 562; Hall v. Geiger-Jones Co., 242 U.S. 553; St. Louis v. Weitzel, 130 Mo. 620. (8) Authority to make administrative rules is not a delegation of legislative power. State v. Hathaway, 115 Mo. 47; Gregory v. Kansas City, 244 Mo. 523; Field v. Clark, 143 U.S. 649, 694; United States v. Grimaud, 220 U.S. 521; Caha v. United States, 152 U.S. 211; Oceanic Navigation Co. v. Stranahan, 214 U.S. 333; McKinley v. United States, 249 U.S. 397; Plymouth Coal Company v. Pennsylvania, 232 U.S. 542. (9) An ordinance regulating the handling and sale of milk is not objectionable as an arbitrary discrimination because it does not apply to dealers in other articles of food. State ex rel. Lieberman v. Van DeCarr, 199 U.S. 552, 563.
OPINION
In Banc.
Appellant was prosecuted in one of the city courts of St. Louis, upon the following complaint or information:
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