Ex Parte Lockhart

• Decision Date: 05 April 1943
• Docket Number: No. 38228.,38228.
• Citation: 171 S.W.2d 660
• Parties: Ex parte WILLIAM LOCKHART, Petitioner.
• Court: Missouri Supreme Court

171 S.W.2d 660

Ex parte WILLIAM LOCKHART, Petitioner.

No. 38228.

Supreme Court of Missouri.

Court en Banc, April 5, 1943.

Rehearing Denied, May 4, 1943.

Habeas Corpus.

PETITIONER REMANDED TO CUSTODY.

Al F. Gerritzen and Henry J. Mueller for petitioner.

(1) The authority of the City of St. Louis to impose license taxes upon businesses and avocations is limited to those specifically enumerated in Article XX of the City's Charter. (a) Article XX of the Charter of the City of St. Louis does not specifically enumerate the business of moving uncrated household goods, etc., as one of the businesses upon which the City may impose a license tax. (b) Nor does the supplemental clause, "Enumeration not Exclusive" of Article XX enlarge the City's power to enable it to impose a license tax upon businesses not specifically enumerated therein. (c) Said Ordinance No. 42217 purporting to impose a license tax upon the business of moving uncrated household goods, etc., in the City of St. Louis is unconstitutional and void. Art. XX, Charter of City of St. Louis; Art. IV, Sec. 1, Const. of Mo.; 14th Amend., Const. of the U.S.; St. Louis v. Boatmen's Ins. Tr. Co., 47 Mo. 150; St. Louis v. Laughlin, 49 Mo. 559; Pierce City v. Hentchel, 210 S.W. 31, reversed 180 S.W. 1027; Siemens v. Shreeve, 296 S.W. 415, 317 Mo. 736; Keane v. Strodtman, 18 S.W. (2d) 896, 323 Mo. 161; Nafziger Baking Co. v. Salisbury, 48 S.W. (2d) 563, 329 Mo. 1014; City of Ozark v. Hammond, 48 S.W. (2d) 129, reversed 44 S.W. (2d) 254, 329 Mo. 1118; City of Lebanon v. Joslyn, 58 S.W. (2d) 288, reversed 44 S.W. (2d) 258; Cripe Baking Co. v. Bethany, 64 Fed. (2d) 755. (2) Ordinance No. 42217 shows on its face that it is designed as a revenue measure and not as a regulatory license act. It seeks to impose an occupation tax upon persons, firms and corporations falling within its provisions, contrary to the statutes and Constitution of the State of Missouri. Sec. 7440, R.S. 1939; Art. IV, Sec. 1, Const. of Mo; Same authorities as (1). (3) Ordinance No. 42217 shows on its face that by its provisions it confers on the Board of Public Service of the City of St. Louis the power to limit the number of those who may engage in the moving business so as to create a monopoly for the benefit of a few, and is therefore invalid. Art. II, Sec. 30; Art. X, Sec. 3, Const. of Mo.; 14th Amend. Const. of U.S.; Fetter v. City of Richmond, 142 S.W. (2d) 6; Transf. from 132 S.W. (2d) 671, 346 Mo. 431. (4) Ordinance No. 42217 contains twenty sections. Ordinances relating to the same subject matter must be construed together. State ex inf. Bloebaum v. Broeker, 11 S.W. (2d) 81; Palmer v. Omer, 295 S.W. 123, 316 Mo. 1188; State ex rel. Sears-Roebuck v. Haid, 69 S.W. (2d) 41, 332 Mo. 701. (5) A careful reading of all of the sections and provisions of Ordinance No. 42217 shows, on its face, that it is unreasonable and contains unconstitutional, illegal, class legislation, discriminatory, unreasonable, prohibitive, oppressive, vague, uncertain and ambiguous provisions, that it was designed to create a monopoly and contains unlawful delegations of legislative power, that it is in conflict with the State statutes and transcends the powers of the City of St. Louis under its Charter (Art. XX, Charter of the City of St. Louis; Sec. 7440, R.S. 1939). That it exempts movers who use horse-drawn vehicles. "The court can declare municipal ordinance unreasonable on its face by mere inspection of ordinance, if on its face it is unreasonable." Kennedy v. Remmers, 101 S.W. (2d) 70, 340 Mo. 126. Unreasonable ordinance: Union Cemetery Assn. v. Kansas City, 252 Mo. 466, 161 S.W. 261; American Tob. Co. v. Mo. Pac. R. Co., 247 Mo. 374, 157 S.W. 502. (6) Section 1 of Ordinance 42217 is class legislation and discriminatory, because it impliedly exempts those who move crated household goods, etc., and impliedly prohibits an individual from moving his own household goods, etc., unless he have a mover's license. It discriminates in favor of those who move for one person, firm, etc., for a period of thirty days, by exempting them from its provisions, in violation of the Constitution of Missouri. Art. IV, Sec. 53, subsections 26, 32, Const. of Mo. (7) Section 3 of said Ordinance No. 42217 by its provisions requires an applicant for a mover's license to first obtain a "certificate of convenience and necessity" (a franchise) from the Board of Public Service of the City of St. Louis, which has no power to grant franchises. Art. XIII, Sec. 5, subsection (b), Charter, St. Louis. (a) It also attempts to change the procedure prescribed by statute to be followed by an applicant for a license, in violation of law. Sec. 7729, R.S. 1939. (8) The Board of Public Service of the City of St. Louis is without authority to grant franchises by issuing so-called "certificates of convenience and necessity" as provided by section 4 of said Ordinance No. 42217. Art. XIII, Sec. 5, subsection (b) Charter, City of St. Louis. (a) Certificates of "convenience and necessity" are special franchises. Teche Lines v. Board of Supervisors, 143 So. 486, 165 Miss. 594; P.S. Interstate Transp. Co. v. Pub. Serv. Co., 262 N.Y.S. 5, 237 N.Y. App. Div. 338. (b) The purpose of a "certificate of convenience and necessity" is to limit the number of those engaged in a particular business. Shepperd v. Owl Refining Co., 68 S.W. (2d) 1101. (c) The Board of Public Service of the City of St. Louis has no legal authority to determine and limit the number of persons, etc., who may engage in the moving business in the City of St. Louis, by granting certificates of convenience and necessity (franchises) at its discretion and thereby create a monopoly. Art. II, Sec. 30, Art. IV, Sec. 1, Const. of Mo.; 14th Amend., Const. of U.S.; McQuillin, Mun. Corp., p. 304, sec. 190; 37 C.J., p. 192, sec. 42. (d) The Board of Public Service of the City of St. Louis has no authority to change the procedure to be followed by an applicant for a license, as prescribed by statute. Sec. 7729, R.S. 1939. (9) Section 5 of said Ordinance No. 42217 confers unlawful delegations of legislative power on the Board of Public Service of the City of St. Louis, by purporting to give said Board the right to grant franchises and to determine and control the number of persons, etc., who may engage in the moving business in the City of St. Louis. Art. II, Sec. 30; Art. IV, Sec. 1, Const. of Mo.; 14th Amend., Const. of U.S.; Art. XIII, Sec. 5, subsection (b), Charter of St. Louis. (10) The provisions of Section 7 of said Ordinance No. 42217 are in conflict with Sections 1528 and 1529 of the Municipal Code of the City of St. Louis for 1936, which provides a schedule of license fees that the City of St. Louis may impose on motor vehicles pursuant to statutes of Missouri. R.S. 1929, sec. 7761, reenacted Ex. Sess. Laws 1933-34, p. 98; R.S. 1939, sec. 8369, subsec. (c); City v. Temples, 149 S.W. (2d) 888; Sec. 5273, p. 6691, Ann. Stat. 1929; Sec. 7780, p. 5228, Ann. Stat. 1929; Secs. 8369 and 8395, R.S. 1939; City of Sikeston v. Marsh, 110 S.W. (2d) 1135; Ex parte Tarling, 241 S.W. 929. (11) The authority conferred by Section 8 of said Ordinance No. 42217 on the Board of Public Service of the City of St. Louis is unconstitutional and void; there is no statutory or constitutional authority giving the City of St. Louis the right to compel owners of motor vehicles to carry liability insurance. Ordinances must conform to state laws. Secs. 5729, 7442, R.S. 1939; Art. VI, Sec. 1, Const. of Mo. (12) The authority conferred by Section 9 of said Ordinance No. 42217 on the Board of Public Service of the City of St. Louis is unconstitutional and void; there is no statutory or constitutional authority giving the City of St. Louis the right to compel owners of motor vehicles transporting furniture in the City of St. Louis to carry "cargo" insurance. R.S. 1939, secs. 5729, 7442; Art. VI, Sec. 1, Const. of Mo. (13) Section 12 of said Ordinance No. 42217 is drawn in the disjunctive and by the use of the word "OR" provides alternative methods by which a license may be obtained, and is in conflict with section 3 of said ordinance and therefore ambiguous and void and contrary to statute. Sec. 7729, R.S. 1939; Dodd v. Ind. Stove & Furn. Co., 51 S.W. (2d) 114, 330 Mo. 662. (14) The authority granted by section 14 of said Ordinance No. 42217 to the Department of Streets and Sewers of the Board of Public Service, to determine what vehicles shall be used in the moving business in the City of St. Louis is an unlawful delegation of legislative power. Art. IV, Sec. 1, Const. of Mo.; Sec. 7229, R.S. 1939. (15) The authority granted by Section 15 of said Ordinance No. 42217 to the Board of Public Service to determine who shall engage in the moving business is unconstitutional and void, because it is an unlawful and unreasonable delegation of legislative power. Art. IV, Sec. 53, subsec. 32, Art. IV, Sec. 1, Const. of Mo.; 14th Amend., Const. of U.S. (16) Section 19 of said Ordinance No. 42217 is unconstitutional and void because it attempts to legislate against persons outside of the scope of the ordinance, contrary to statutes of Missouri. Art. IV, Sec. 1, Const. of Mo.; Sec. 7729, R.S. 1939.

Joseph F. Holland, City Counselor, and Oliver Senti, Associate City Counselor, for respondent.

(1) The City of St. Louis is empowered to regulate public motor vehicles. Wagner v. St. Louis, 284 Mo. 410, 224 S.W. 413; Pope v. Greenspon, 272 Mo. 288, 198 S.W. 1107; McGill v. St. Joseph, 225 Mo. App. 1033, 38 S.W. (2d) 725; Charter of St. Louis, Art. XIII, Sec. 5, Par. (c); Charter of St. Louis, Art. I, Sec. 1, paragraphs 14, 23, 25, 26, 33, 34 and 35; Charter of St. Louis, Art. I, Sec. 2; State ex rel. v. Public Serv. Comm., 341 Mo. 190, 108 S.W. (2d) 116. (a) The charters of towns and cities indicate that it is the policy of the state to delegate to them the control of their streets. McGill v. St. Joseph, 225 Mo. App. 1033, 38 S.W. (2d) 725; ...