Ex parte Williams

• Citation: 139 S.W.2d 485,345 Mo. 1121
• Decision Date: 04 May 1940
• Docket Number: 36727
• Parties: Ex Parte Edward Williams, Petitioner
• Court: Missouri Supreme Court

139 S.W.2d 485

345 Mo. 1121

Ex Parte Edward Williams, Petitioner

No. 36727

Supreme Court of Missouri

May 4, 1940

Petitioner remanded.

Emmet Golden and Rene J. Lusser for petitioner.

(1) Ordinance No. 40996 is a prohibitory ordinance and therefore, illegal, since the Charter of the City of St Louis does not expressly give the city the right to prohibit the operation of a charitable institution, or the solicitation of funds therefor. The ordinance therefore is in violation of, and in contravention to, Article II, Sections 4 and 30, of the Constitution of Missouri. Charter, City of St Louis, Art. I, Sec. 1, Par. 25; State ex rel. Penrose v. McKelvey, 256 S.W. 477; St. Louis v. Dreisoerner, 243 Mo. 223; St. Louis v. Heitzeberg Co., 141 Mo. 383; St. Louis v. King, 226 Mo. 350; St. Louis v. Atlantic Quarry & Const. Co., 244 Mo. 490; State v. Clarke, 54 Mo. 34. The right to prohibit the solicitation of funds by a charitable institution being denied to the city, it necessarily follows that the city may not prohibit an agent of such institution from soliciting funds for it. City of Independence v. Cleveland, 167 Mo. 389. (2) The provisions of Ordinance 40996 of the City of St. Louis constitute an undue, unauthorized and illegal delegation of the legislative powers and authority of the City of St. Louis to the Charities Solicitations Commission created by said ordinance, said ordinance being therefore illegal and void. Art. IV, Sec. 1, Charter, City of St. Louis; Merchants' Exchange of St. Louis v. Knott, 212 Mo. 640; Cooley on Constitutional Limitations (6 Ed.), p. 137; St. Louis v. Polar Wave Ice & Fuel Co., 296 S.W. 996; St. Louis v. Heitzeberg Packing Co., 141 Mo. 388; Cavanaugh v. Gerk, 280 S.W. 52; Hays v. Poplar Bluff, 263 Mo. 536; St. Louis v. Russell, 116 Mo. 255; Hoyt Bros., Inc., v. Grand Rapids, 245 N.W. 511; Ex parte Dart, 155 P. 67. (3) Ordinance No. 40996 is illegal for the reason that it fails to furnish a uniform rule of action, deprives citizens of due process of law and grants special and exclusive rights, privileges, or immunities, all in violation of and in contravention of Article II, Section 4, and Article II, Section 30, as well as Article IV, Section 53, Clause 26 of the Constitution of the State of Missouri. Hays v. Poplar Bluff, 263 Mo. 536; St. Louis v. Atlantic Quarry & Const. Co., 244 Mo. 489; Davison v. Lill, 35 S.W.2d 944. (4) Ordinance No. 40996, Section 1 thereof, attempts to prohibit, without permit, acts beyond the scope of control of the city of St. Louis, and vested solely in Federal and State agencies. (a) Section 4 of the ordinance attempts to restrict, prohibit and regulate the use of the mail, which is a matter exclusively of Federal cognizance and concern. 49 C. J., pp. 1132, 1158, secs. 8, 93; Ex parte Taft, 225 S.W. 463. (b) Section 1 of the ordinance attempts to restrict and suppress, without permit, the use of the telephone, such regulation being clearly beyond the scope of power of the city of St. Louis, and being exclusively vested in the Public Service Commission of the State of Missouri. Ex parte Packman, 296 S.W. 366.

Edgar H. Wayman and Oliver Senti for respondents.

The solicitation of funds from the public is so related to the public welfare that its regulation pursuant to the police power does not violate the State or Federal Constitutions. Ex parte White, 56 Okla. 418, 41 P.2d 488; Commonwealth v. McDermott, 296 Pa. 299, 145 N.E. 858; State v. Hundley, 195 N.C. 377, 142 S.E. 330; McQuillin on Municipal Corporations (2 Ed.), sec. 791. (a) The police power extends to all things which bear a substantial relation to the public health, safety and welfare. Cooley on Constitutional Law (8 Ed.), p. 1226; Safee v. Buffalo, 204 A.D. 561. (2) Ample power to regulate the solicitation of funds for charitable purposes is conferred upon the City of St. Louis by its Charter. Charter of St. Louis, Pars. 23, 24, 25, 26, 33, 35, Sec. 1, Art. I, and Sec. 2, Art. I. (a) The foregoing provisions of the charter authorize the regulation of occupations without designating a particular occupation by name. Mike Berniger Moving Co. v. O'Brien, 240 S.W. 481; St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870; St. Louis v. Galt, 179 Mo. 8; Komen v. St. Louis, 316 Mo. 9, 289 S.W. 838; St. Louis Gunning Co. v. St. Louis, 235 Mo. 99, 137 S.W. 929. (3) Authority to exercise discretion in the determination of a fact does not vest arbitrary power in an administrative officer or board, and is not a delegation of legislative power. State v. Thompson, 160 Mo. 333, 60 S.W. 1077; State v. Hyde, 315 Mo. 681, 286 S.W. 363; State v. Hundley, 195 N.C. 377, 142 S.E. 330; State v. Creighton, 111 Pa. Sup. 306, 170 A. 720; Gaylord v. Pasadena, 175 Cal. 433, 166 P. 348; Ex parte White, 56 Okla. 418, 41 P.2d 488. (a) Due process of law does not necessarily mean judicial process. Reetz v. Michigan, 188 U.S. 505, 47 L.Ed. 563.

OPINION

Tipton, J.

Habeas Corpus. The petitioner was arrested by the police of the City of St. Louis, Missouri, for violation of Ordinance No. 40996 of that city. This ordinance seeks to regulate solicitations for charitable, patriotic or philanthropic purposes in that city; it provides for the creation and functioning of a Charity Solicitations Commission; and it makes it unlawful to solicit funds without first securing a permit from the commission. At the time the petitioner was arrested he was soliciting funds for the St. Louis Volunteer Children's Free Feeding Station, which had made an application for a permit and was denied.

The first point made in the petitioner's brief is that "Ordinance No. 40996 is a prohibitory ordinance and therefore, illegal, since the charter of the City of St. Louis does not expressly give the city the right to prohibit the operation of a charitable institution, or the solicitation of funds therefor. The ordinance therefore is in violation of, and in contravention to, Article II, Sections 4 and 30, of the Constitution of Missouri."

This point necessarily raises two questions; the first is: Does the State have the power to regulate the solicitations of funds for charitable, patriotic or philanthropic purposes? If this question is answered in the affirmative, then the second question is: Has the State delegated to the City of St. Louis that power?

The petitioner contends that the State does not possess such power because of Sections 4 and 30 of Article II of our State Constitution. Section 4 reads as follows: "That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principle office of government, and that when government does not confer this security, it fails of its chief design." Section 30 deals with the due process clause.

On the other hand, the city contends that the police power of the State gives it the right to enact such regulations. We have never ruled the exact question presented, but it has been ruled by other jurisdictions.

In Ex parte White, 56 Okla. Cr. 418, 41 P.2d 488, l. c. 490, the Court of Criminal Appeals of Oklahoma said:

"The city has authority under the exercise of its police power to determine whether or not there shall be restrictions on soliciting by unscrupulous persons or for unworthy causes or for fraudulent purposes. That solicitations of contributions under the guise of charitable and benevolent purposes is grossly abused is a matter of common knowledge. Certainly the solicitation of contributions in good faith for worthy purposes should not be denied, but somewhere should be lodged the power to determine within reasonable limits the worthy from the unworthy. The ordinance here has put that power in the hands of a board probably as well equipped to determine that question as any that could be selected."

In the case of Commonwealth v. McDermott, 296 Pa. 299, l. c. 306, the Supreme Court of Pennsylvania said:

"'What business or occupation so far affects the public welfare and good order as to require to be licensed is a matter of legislative consideration and control, which, when exercised in good faith, is outside the jurisdiction of the courts.' However, the Legislature when enacting the law of 1925 recognized the fact that beyond the list of exemptions there might be and undoubtedly are many organizations undertaking work in the name of charity which a due regard for public welfare requires to be licensed. These obviously would be unknown both to the general public and to the department of public welfare. They might be of excellent repute and should have no objection to acquainting the authorities with their plans and intentions. But, as is evident by the instance before us, honest purposes and lawful methods do not always characterize enterprises put on foot seemingly in behalf of charity. Even with numerous regulative state and local laws in existence, it is surprising how many operations are carried on by persons and associations who, secreting their activities under the guise of benevolent purposes, succeed in cheating and defrauding a generous public. It is in fact amazing how profitable the fraudulent schemes and practices are to people who manipulate them; and we have a most signal instance of this common evil in the fruitful results of the operations of the three defendants in the case before us."

In the case of State v. Hundley et al., 195 N.C. 377, 142 S.E. 330, l. c. 332, in ruling on an ordinance of the City of Charlotte regulating the solicitation of funds for charity, the Supreme Court of North Carolina said:

"The contention that the ordinance in question deprives the defendants and the American Rescue Workers, Inc., of...