City of St. Louis v. King
| Citation | 126 S.W. 495,226 Mo. 334 |
| Parties | CITY OF ST. LOUIS v. NATHANIEL K. KING, Appellant |
| Decision Date | 15 March 1910 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Court of Criminal Correction. -- Hon. Hiram N Moore, Judge.
Reversed.
R. P. & C. B. Williams for appellant; Lehmann & Lehmann and E. M Grossman of counsel.
(1) A municipal corporation possesses and can exercise the following powers and no others. First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation -- not simply convenient, but indispensable. Dillon, Munic. Corp., sec. 89; Tiedemann, Mun. Corp., sec 110; Knapp v. Kansas City, 48 Mo.App. 485; Carpenter v. Realty Co., 103 Mo.App. 480; State v. Butler, 178 Mo. 272. (2) Without express authority, either by statute or by its charter, the city of St. Louis has no authority to prohibit an act unless such act tends to disturb the public peace or is injurious to the public health. State v. Taft, 118 N.C. 1193; Bregguglia v. Vineland, 53 N. J. L. 168; Cornwallis v. Carlile, 10 Ore. 139; Minnesota v. Hammond, 40 Minn. 43; Walsh v. Union, 13 Ore. 589. (3) If an act tends to disturb the public peace or is injurious to the public health it constitutes a nuisance and can be prohibited by the municipality under the authority conferred upon it to abate nuisances; but the municipality has authority even under this broad power to prohibit only such acts as have been declared to constitute a nuisance either by the common law or by statute. The municipality has no power to declare that to be a nuisance which is not such at common law or by statute. St. Louis v. Packing Co., 141 Mo. 375; State v. Taft, 118 N.C. 1193; Carey v. Washington, Fed. Cas. 2404; Cooley, Const. Lim. (7 Ed.), p. 883; Carpenter v. Realty Co., 10 Mo.App. 480; Allison v. Richmond, 51 Mo.App. 133; State v. Mott, 61 Md. 297; In re Hong Wah, 82 F. 623. (4) Any exercise of the police power deduced from the "general welfare" clause in the city charter, must be essential to the declared objects and purposes of the corporation -- not simply convenient but indispensable. Cooley, Const. Lim. (7 Ed.), p. 280; Carpenter v. Realty Co., 103 Mo.App. 480; Knapp v. Kansas City, 48 Mo.App. 485; Tiedemann's Police Powers, sec. 212; Dillon, Munic. Corp., sec. 472; 15 Am. and Eng. Ency. Law, 1187; Williams v. Augusta, 4 Ga. 509; Mt. Pleasant v. Blaze, 11 Iowa 399. (5) The validity of an ordinance enacted pursuant to the police power deduced from the general welfare clause depends upon the necessity for it in aid of the corporate purpose of promoting the peace, health and welfare of the people, the needs of the people in the city requiring peculiar legislation on account of their close interdependence due to urban life. Ordinances that undertake to regulate conduct whose effect for evil is not peculiar to the social conditions due to congestion of population have been held to be invalid. Minnesota v. Hammond, 40 Minn. 43; Walsh v. Union, 13 Ore. 589; State v. Herne, 115 N.C. 739; Bregguglia v. Vineland, 53 N. J. L. 168; Buell v. State, 45 Ark. 336; Paralee v. Camden, 49 Ark. 165; St. Louis v. Roche, 128 Mo. 541; St. Louis v. Meyer, 185 Mo. 583. (6) A municipality, without express legislative authority, has no power to go beyond the common and statutory law of the State in its legislative functions on behalf of the peace, health and good order of the town. State v. Belvidere, 44 N. J. L. 350. (7) Municipal corporations have no power to pass ordinances which shall regulate or attempt to regulate the conduct of those outside the municipal limits. Abbott, Munic. Corp., sec. 129. Nor to pass ordinances which affect the affairs of those outside the city limits. Such ordinances are held to be unreasonable, oppressive and unequal. Lamar v. Weidman, 57 Mo.App. 507. (8) Without an express declaration of the Legislature on the subject, it is for a jury under proper instructions from the court, and not for the municipal assembly, to say what constitutes obscenity. People v. Muller, 32 Hun (N. Y.) 209. (9) "No implied power to pass by-laws, and no express general grant of the power, can authorize a by-law which conflicts with the statutes of the State, or with the general principles of the common law adopted or in force in the State." Dillon, Munc. Corp., sec. 366; St. Louis v. Meyer, 185 Mo. 583; Constitution, art. 9, sec. 23; R. S. 1899, sec. 6258; Moberly v. Hoover. 93 Mo.App. 663; Kansas City v. Neal, 49 Mo.App. 72; St. Louis v. Bentz, 11 Mo. 61; St. Louis v. Schoenbusch, 95 Mo. 618; Kansas City v. Hallett, 59 Mo.App. 160; Trenton v. Clayton, 50 Mo.App. 535.
L. E. Walther and B. H. Charles for respondent.
(1) The power to regulate doctors is expressly conferred by the charter. Charter of St. Louis, art. 3, sec. 26, clause 5. The power to prevent doctors from advertising the treatment of disgusting private and venereal diseases is included in the power to regulate doctors. The Act of 1879, Laws 1879, p. 45, which appears in the Statutes of 1899, with a slight change in the order of words, as section 5260, took away from all cities in the State any then existing power to license and tax doctors, but left unimpaired all power which had been conferred upon them to regulate doctors (otherwise than by taxing and licensing). Expressio unius, exclusio alterius. (2) But even if there were no express grant of authority, the city possesses such authority under the general welfare clause of its charter. Charter, art. 3, sec. 26, par. 14; St. Louis v. Schoenbusch, 95 Mo. 608; St. Louis v. Bentz, 11 Mo. 43; St. Louis v. Liessing, 190 Mo. 480; St. Louis v. Cafferata, 24 Mo. 94; State ex rel. v. Walbridge, 119 Mo. 393; St. Louis v. Vert, 84 Mo. 209; Woerner's Rev. Code of St. Louis, pp. 338, 339, 870. (3) The construction of a power must not be so strict as to defeat the evident objects and purposes of its creation. State ex rel. v. Allen, 183 Mo. 283, 291. The construction should be in accordance with the intent of the charter-framers, to be gathered from the language and object of the charter provisions, and giving that language an interpretation neither strict nor strained. St. Louis v. Herthel, 88 Mo. 130; Railroad v. Railroad, 105 Mo. 562, 575, 576. (4) The constitutional question is not properly raised, there being no citation of any section of the Constitution which has been violated. And the court will not make a search for a constitutional defect when the defendant has not pointed it out. Hulett v. Railroad, 145 Mo. 35; State ex rel. v. Smith, 176 Mo. 44; Excelsior Springs v. Ettenson, 188 Mo. 132; Independence v. Knoepker, 205 Mo. 342; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685; State v. Cobb, 113 Mo.App. 156. (5) The constitutional right to engage in business or to practice a profession does not imply any right to carry it on in a manner that may be dangerous to the health or good morals of the public. Thompson v. Van Lear, 92 S.W. 773. (a) There is no constitutional right to publish every fact or statement that may be true. State v. McKee, 73 Conn. 22. (b) And the question whether the defendant is a licensed physician under the laws of the State is immaterial. U. S. v. Clarke, 38 F. 735. (c) The advertisement in question was not a standard medical work, although it may have made statements of fact well known to the medical profession, and although the ailments advertised are recognized by the medical profession and scientific men. U. S. v. Clarke, 38 F. 735. (d) The contents of a scientific treatise on venereal diseases may become indecent and obscene when sent out broadcast to the general public. See authorities under next point. (6) The advertisement inserted by the defendant was obscene. U. S. v. Smith, 45 F. 476; U. S. v. Martin, 50 F. 918; U. S. v. Chesman, 19 F. 497; U. S. v. Clarke, 38 F. 732; Thomas on Lotteries, Frauds and Obscenity in the Mails, secs. 241-246; Commonwealth v. Landis, 8 Phil. 453; State v. McKee, 73 Conn. 22. (7) It is no objection to an ordinance that it covers the same ground as a statute. St. Louis v. Bentz, 11 Mo. 43; St. Louis v. Cafferata, 24 Mo. 94; St. Louis v. Delassus, 205 Mo. 578. (a) A defendant may even be subjected to two penalties for the same offense. St. Louis v. Cafferata, 24 Mo. 97; State v. Muir, 164 Mo. 610; State v. Gustin, 152 Mo. 108; Canton v. McDaniel, 188 Mo. 228; Lebanon v. Gordon, 99 Mo.App. 277. (b) Merely be-because two laws are different does not make them inconsistent, and the mere fact that an ordinance differs from the general laws of the State will not invalidate it, provided it is not inconsistent therewith. St. Louis v. Cafferata, 24 Mo. 97; St. Louis v. Delassus, 205 Mo. 578. (c) There is no inconsistency between section 1447 of the Municipal Code of St. Louis of 1901 and sections 2176, 2177 and 2178 of the Revised Statutes of 1899. Ex parte Hollwedell, 74 Mo. 402; St. Louis v. Cafferata, 24 Mo. 94; State ex rel. v. Walbridge, 119 Mo. 392. Municipal corporations are organized by the State for the express purpose of legislating for local needs. And if section 1447 of the St. Louis ordinances is invalid, then the great majority of the police ordinances of all the towns and cities in the State are probably invalid, and the Legislature must be looked to for the enactment of local police regulations, the very thing which is expressly prohibited by the Constitution.
This was an action for the violation of an ordinance of St. Louis known as Ordinance No. 19991, Section 1447, of the Revised Ordinances of said city, approved April 3, 1900, which provides: ...
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