City of St. Louis v. St. Louis Theatre Company

• Decision Date: 28 March 1907
• Citation: 100 S.W. 627,202 Mo. 690
• Parties: CITY OF ST. LOUIS, Plaintiff in Error, v. ST. LOUIS THEATRE COMPANY
• Court: Missouri Supreme Court

100 S.W. 627

202 Mo. 690

CITY OF ST. LOUIS, Plaintiff in Error, v. ST. LOUIS THEATRE COMPANY

Supreme Court of Missouri, First Division

March 28, 1907

Error to St. Louis Court of Criminal Correction. -- Hon. E. M Hughes, Special Judge.

Reversed and remanded.

Charles W. Bates and Benjamin H. Charles for plaintiff in error.

(1) Whatever right the defendant had, if any, to the use of the street on which its property abutted was subject to the police power of the State as delegated to the city. 2 Dillon on Municipal Corporations (4 Ed.), sec. 656 a; Allen v Boston, 159 Mass. 335; Loth v. Columbia Theatre Co., 94 S.W. 847; Westport v. Mulholland, 84 Mo.App. 319, 159 Mo. 86; State ex rel. v. Murphy, 130 Mo. 10; Fertilizing Co. v. Hyde Park, 97 U.S 659; Stuyvesant v. Mayor, N. Y., 7 Cowen 603; Salem v. Maynes, 123 Mass. 372. (a) The power to regulate streets is primarily a function of government vested in the State as the sovereign authority. 2 Dillon on Munic. Corp. (4 Ed.), sec. 656; Ferrenbach v. Turner, 86 Mo. 419. (b) The State has delegated this authority to the city. Charter, art. 3, sec. 26, clause 2 (2 R. S. 1899, p. 2484); Schopp v. St. Louis, 117 Mo. 135; Loth v. Columbia Theatre Co., 94 S.W. 847; Springfield v. Railroad, 69 Mo.App. 514. (c) The word "regulate" is one of broad import. St. Louis v. Western Union Telegraph Co., 149 U.S. 469; State ex rel. v. Murphy, 134 Mo. 561; Elliott on Roads and Streets (2 Ed.), sec. 450. (d) The power thus conferred upon the city, to regulate streets, is not temporary, but permanent, and cannot be abdicated nor surrendered. State ex rel. v. St. Louis, 161 Mo. 383; Elster v. Springfield, 49 Oh. St. 82. (2) By the passage of a former ordinance the city did not exhaust its power to regulate; and prohibiting, by that ordinance, one sort of sign, did not authorize another sort. Loth v. Columbia Theatre Co., 94 S.W. 853; People v. Harris, 203 Ill. 272. (3) The defendant acquired no vested right in the highway under any city ordinance, nor any permanent property right in the space occupied by its sign. Corby v. Railroad, 150 Mo. 469. (a) But assuming, for the sake of argument, that when the sign was erected defendant had some license, express or implied, to use the street for that purpose, such license was revoked by the passage of the subsequent ordinance. Ferrenbach v. Turner, 86 Mo. 416; Eddy v. Granger, 19 R. I. 105, 23 L. R. A. 518; Winter v. Montgomery, 83 Ala. 589; Denver v. Girard, 21 Col. 447. (b) No contractual relationship, as between the city and the defendant, was created by the passage of section 1157 of the Revised Ordinances of 1901. (c) By the passage of one ordinance in the exercise of the police power the city, as an arm of the government, is not estopped to pass a subsequent ordinance modifying or repealing the provisions of the former. Norfolk v. Chamberlaine, 29 Grat. (Va.) 534. (4) The city has no power to enter into a contract not to exercise its legislative authority over the public streets, nor to surrender its control over them. Elliott on Roads, sec. 657; 2 Smith on Munic. Corp., sec. 1288; Belcher, etc. v. St. Louis, etc., 82 Mo. 121; Railroad v. Illinois, 146 U.S. 453. (5) The city, as trustee for the public, could not license the defendants to subject the street to a purely private purpose, and therefore the defendants could acquire no property right therein. State ex rel. v. St. Louis, 161 Mo. 371; Ferrenbach v. Turner, 86 Mo. 416; Corby v. Railroad, 150 Mo. 470; Glaesner v. Anheuser, etc., 100 Mo. 515; Schopp v. St. Louis, 117 Mo. 135; State ex rel. v. Railroad, 140 Mo. 556; 2 Smith on Munic. Corp., sec. 1287; see, also, cases cited supra. (6) The maintenance of the sign was a public nuisance and therefore punishable as a misdemeanor. Farrell v. Mayor of N. Y., 5 N.Y.S. 672; Bybee v. State, 94 Ind. 443; Knox v. Mayor, 55 Barb. 404.

Louis A. Steber for defendant in error.

(1) This prosecution under Ordinance 20529 cannot be sustained, because: (a) The complaint, on its face, is multifarious and does not individuate the offense in charging that defendant "set up," "caused to be set up" and "maintain" a certain sign, etc. The offenses are separate and distinct, repugnant and inconsistent, absurd and contradictory. State v. Flint, 62 Mo. 399; State v. Gibson, 111 Mo. 100. Under such a conviction, defendant could not successfully plead autrefois convict or autrefois acquit. State v. Burke, 151 Mo. 146. (b) The allegation is that the sign is over and upon the sidewalk (meaning on the surface) whereas the proof shows it is over and above it, some 25 or 30 feet. The terms "over and upon" and "over and above" have separate and distinct meanings. Goldstraw v. Duckworth, L. R. 5 Q. B. D. 275. (c) The proof shows that the sign had been "set up" or caused to be "set up" before the passage of Ordinance 20529, and can have no application to this case. Singer Mfg. Co. v. Shull, 74 Mo.App. 489; Wood on Nuis. (3 Ed.), sec. 745, pp. 983-994. (d) That the defendant did "maintain" that which was prior lawfully maintained (as admitted by the city attorney at the trial) could not make it a violator of the law, without any form of notice, any species of judicial inquiry, or any tender of compensation. This prosecution is in the nature of an arbitrary edict. St. Louis v. Hill, 116 Mo. 534; River Rendering Co. v. Behr, 77 Mo. 99; Yates v. Milwaukee, 10 Wall. (U.S.) 497; St. Louis v. Dorr, 145 Mo. 485; Singer Mfg. Co. v. Shull, 74 Mo.App. 489; Everett v. Marquette, 53 Mich. 450. (e) The word "maintain" in pleading means "to support what has already been brought into existence." Carson-Rand Co. v. Stern, 129 Mo. 387; Anderson's Law Dictionary, Title, Maintain. The sign being already in existence the ordinance provision to "hereafter maintain" cannot be made retroactive in its action. Whitmier, etc., Co. v. City of Buffalo, 118 F. 776; State v. Burke, 151 Mo. 140; State v. Schuchmam, 133 Mo. 117. (2) If the ordinance be not adjudged unreasonable on its face, it may be so adjudged as a question of fact. It cannot apply to the case at bar. "An ordinance, general in its scope, may be adjudged reasonable as applied to one state of facts and unreasonable when applied to circumstances of a different character." Nicoulin v. Lowery, 49 N. J. L. 391; Railroad v. Jersey City, 47 N. J. L., 286. "If an ordinance, however, is altogether unreasonable and oppressive, it may be vacated by the courts for that reason alone." Corrigan v. Gage, 68 Mo. 544; Railroad v. City of Springfield, 85 Mo. 674; Hannibal v. Tel. Co., 31 Mo.App. 31. (3) Defendant has a vested property right in its illuminated sign of which it cannot be deprived in this proceeding. It was admitted at the trial below that the sign was erected when it was legal and proper to erect it. It cost a large sum of money. The attempt to remove it now, without assigning any reason for it, is an attempt at the confiscation of property and destruction of vested rights which cannot be done by the mere passage of an ordinance. Allison v. Richmond, 51 Mo.App. 137; Savage v. City of Salem, 23 Ore. 385; Town of Spencer v. Andrews, 82 Iowa 14, 12 L. R. A. 115. Unless there is a necessity for the act. Betz v. Tel. Co., 97 S.W. 207; Hannibal v. Tel. Co., 31 Mo.App. 31; Thurston v. St. Joseph, 51 Mo. 514; State ex rel. v. Town of Phillipsburg, 49 A. 445; State, etc. v. Mayor, etc., of Jersey City, 49 N. J. L. 303; Suburban, etc., Co. v. Inhabitants of East Orange, 41 A. 865. "The public convenience which will justify such a proceeding must amount to a public necessity." City of Atlanta v. Holliday, 96 Ga. 546; City of St. Paul v. Railroad, 63 Minn. 356; Wellman v. Dickey, 78 Me. 31; Stretch v. Village of Cassopolis, 125 Mich. 167. The attempt so to do is not protection, but destruction. Sproul v. Borough of Stockton, 62 A. 275. (4) The sign complained of is not a nuisance, and the mere declaration of the city authorities, without any facts to support it, cannot make it one. Loth v. Columbia Theater Co., 94 S.W. 853; State v. Higgs, 126 N.C. 1014. Under the guise and pretense of a police regulation, the city cannot encroach or trample upon any of the just rights of the citizen, which the Constitution intended to secure against diminution or abridgment. State v. Julow, 129 Mo. 177; In re Jacobs, 98 N.Y. 98; Westport v. Mulholland, 159 Mo. 97; State v. Higgs, 126 N.C. 1025.

OPINION

GRAVES, J.

This cause originated in the First District Police Court of the city of St. Louis by statement in language, as follows:

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

"City of St. Louis, Missouri, May 28, A. D. 1902.

"St. Louis Theatre 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 General Ordinances of the City of St. Louis,' being Ordinance Number 19991, section 1157, as amended by Ordinance No. 20529, approved December 1, 1901, and section 1184, approved April 3, 1900.

"In this, to-wit: In the city of St. Louis and State of Missouri, on the 5th day of May, 1902, and on divers other days and times prior thereto, the said St. Louis Theatre Company did then and there, at and in front of premises at 514 Market street, maintain, set up and cause to be set up a certain sign, sign-box and other fixture, to-wit, an illuminated sign extending over and upon a sidewalk more than eighteen inches from the building line and inside of said sidewalk.

"Contrary to the ordinance in such case made and provided.

"On information of Chief of Police.

"P. P. Taylor.

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

Change of venue was granted to the defendant to the police court for the district south of the Arsenal street. Later, and after the change of...