Davison v. Lill

• Decision Date: 03 March 1931
• Docket Number: No. 21569.,21569.
• Citation: 35 S.W.2d 942
• Parties: DAVISON v. LILL, Sheriff.
• Court: Missouri Court of Appeals

35 S.W.2d 942

DAVISON v. LILL, Sheriff.

No. 21569.

St. Louis Court of Appeals. Missouri.

March 3, 1931.

"Not to be officially published."

Petition by Roger Davison for a writ of habeas corpus against Alfred G. Lill, Sheriff of St. Louis County.

Petitioner discharged.

Wilder Lucas, of St. Louis, for petitioner.

Walter F. Stahlhuth, of St. Louis, for respondent.

BECKER, J.

Petitioner, in his application for a writ of habeas corpus, alleges that he is unlawfully deprived of his liberty by Alfred G. Lill, sheriff of St. Louis county.

It appears that the petitioner was arrested on August 4, 1928, by the police department of the city of Maplewood, Mo., upon information filed against him by the city attorney in the police court. He is charged with having violated section 1 of Ordinance 17 of the city of Maplewood, Mo., which ordinance reads as follows:

"Hereafter, no stone quarry shall be opened or brick kiln built, or soap factory, or slaughter house, or garbage works, or bone factory, or glue factory, or rendering works, or livery stable, or boarding stable, or live stock yard, or dairy, or vitriol factory, or tannery, or candle factory, shall be erected, built or established on any lot of ground in the city of Maplewood without permission so to do having first been obtained from the City Council by proper ordinance; nor shall any house, shed or structure be used, altered, changed, removed or repaired, so as to establish, conduct, operate, carry on or maintain any such business or occupation therein without similar authority.

"Any person, firm or corporation, violating any of the provisions of this Section shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be fined not less than $25.00 nor more than $100.00 for said offense."

The specific charge against him is as follows: "That said Roger Davison did on or about the 4th day of August, 1928, at the city of Maplewood, Missouri, then and there operate a quarry in the city of Maplewood, without first having obtained permission from the city council to do so by proper ordinance, contrary and in violation of sec. 1, of ordinance 17, of said city, entitled an ordinance providing that permission be first obtained from the city council by proper ordinance to open a stone quarry or to build, open or establish any kiln, soap factory, glue factory, slaughter house, livery stable, stock yards, dairy, garbage reduction works, bone factory, vitriol factory, tannery, candle works or rendering factory in the city of Maplewood, contrary to the dignity and peace of said city."

Upon hearing in the police court, petitioner was found guilty, and a fine of $75 and costs was assessed against him. An appeal was taken to the circuit court of St. Louis county, where the appeal was dismissed and judgment of the police court affirmed. Petitioner refused to pay the fine, and was apprehended and upon proper order was committed to the custody of the sheriff of St. Louis county.

Counsel for petitioner contends that the judgment of the police court, as well as the affirmance of the judgment by the circuit court, and the commitment issued thereon, are null and void, for the reasons that section 1 of Ordinance 17 of the city of Maplewood is void because (1) the power to pass an ordinance regulating or prohibiting quarries is not granted to the city of Maplewood under articles 4 or 5 of chapter 38 of the Rev. Stat. of Mo. 1929, or any of its amendments dealing with powers of cities of the third class; (2) because the ordinance is not a mere regulation, but a prohibition, upon a lawful business, not a nuisance per se, in that the ordinance fails to furnish a uniform rule of action for applicants for permits, and leaves the right of property subject to the despotic will of the city council of Maplewood, who may exercise it so as to give exclusive profits and privileges to particular persons, thereby directly conflicting with sections 4 and 30 of article 2 of the Constitution of the state of Missouri, and also with the 14th Amendment of the Constitution of the United States; (3) that said section of said ordinance grants to the city council of Maplewood the right to pass local and special laws and to grant to corporations, associations, and individuals special rights, privileges, and immunities, thereby directly conflicting with clause 26 of section 53 of the fourth article of the Constitution of Missouri.

On the other hand, counsel for the sheriff, who also represents the city of Maplewood, takes the position that the section of the ordinance is not in violation of any constitutional provision, but is a reasonable exercise of the police power of the city.

The city of Maplewood is operating as a city of the third class under the alternative form of government under articles 4 and 5, c. 38, of the Rev. Stat. of Mo. 1929. It must be conceded...