Gerhart v. City of St. Louis

• Decision Date: 16 March 1925
• Docket Number: 24609
• Parties: GEORGE J. GERHART, Appellant, v. CITY OF ST. LOUIS; HENRY KIEL, Mayor; MAX C. STARKLOFF, Health Commissioner, and ANTON SCHULER, City Marshal, of City of St. Louis
• Court: Missouri Supreme Court

270 S.W. 680

307 Mo. 206

GEORGE J. GERHART, Appellant, v. CITY OF ST. LOUIS; HENRY KIEL, Mayor; MAX C. STARKLOFF, Health Commissioner, and ANTON SCHULER, City Marshal, of City of St. Louis

No. 24609

Supreme Court of Missouri

March 16, 1925

Appeal from St. Louis City Circuit Court; Hon. Robert W Hall, Judge.

Affirmed.

Raymond S. Davis for appellant.

(1) Ordinance 31698 is unconstitutional and void because it deprives plaintiff of his property without due process of law and does not permit plaintiff to redeem his dog. Dillon on Municipal Corp. sec. 620. (2) Ordinance 31698 is unconstitutional and void because it permits one class of persons only to purchase dogs from the city at a certain price, and because it further permits only a certain class of medical schools to purchase dogs. State v. Loomis, 115 Mo. 307; State v. Miksicek, 225 Mo. 561. (3) Ordinance 31698 creates a contract by the city through its Board of Aldermen to sell dogs to medical schools for seventy-five cents each, and authorizes the Health Commissioner to contract for the sale of dogs and is therefore illegal and void. State v. Butler, 178 Mo 272. (4) Ordinance 31698 provides for the doing of a public work at a fixed sum without advertising for bids, and is therefore illegal and void. State v. Butler, 178 Mo 272. (5) Ordinance 31698 requires a public officer to perform a service for particular persons, which he is not required to perform for all citizens alike, and is therefore illegal and void. (6) Ordinance 31698 conflicts with Section 585 of the Municipal Code, and does not repeal or amend or purport to repeal or amend said Section 585, and is, therefore, illegal and void. 25 R. C. L. pp. 872, 874, secs. 117, 119; Best v. Broadhead, 108 P. 333; Rocho v. Boone Electric Co., 140 N.W. 193; St. Louis v. Sanguinet, 49 Mo. 581; LeMeine v. St. Louis, 72 Mo. 404. (7) Plaintiff as a taxpayer is entitled to maintain this suit to prevent the city from diverting public funds or public property. High on Injunctions (4 Ed.) 1313, sec. 1298; Hitchcock v. St. Louis, 49 Mo. 484; Stocke v. Edwards, 244 S.W. 802. (8) Plaintiff is entitled to maintain this action for himself and all others similarly situated to prevent a multiplicity of suits. Coal Co. v. St. Louis, 130 Mo. 323; Hays v. Poplar Bluff, 263 Mo. 516; Jewel Tea Co. v. Carthage, 257 Mo. 383. (9) Plaintiff has no adequate remedy at law and is therefore entitled to maintain this action. Jacobs v. Cauthorn, 238 S.W. 443.

Oliver Senti, Arthur H. Bader and Michael J. Hart for respondents; Frederick W. Lehmann and Irvin V. Barth of counsel.

(1) The petition is without equity as the plaintiff has an appropriate and adequate remedy at law. (2) The plaintiff's bill was properly dismissed by the trial court: (a) Because the case is moot. The dog being dead, there was nothing upon which the injunctive process of the court could act. State ex rel. Ashton v. Imel, 243 Mo. 178; Atherton Mills v. Johnston, 259 U.S. 13; Mills v. Green, 159 U.S. 651; Codlin v. Kohlhausen, 181 U.S. 151; Tenn. v. Condon, 189 U.S. 64; Jones v. Montague, 194 U.S. 147; Hicks v. St. Louis, 234 Mo. 647. (b) Because there is no equity in the bill: first, since plaintiff has an adequate remedy at law. He had an action in tort against Dieckman, replevin prior to the killing of the dog, conversion thereafter. 7 McQuillin on Municipal Corporations, p. 6763, sec. 536, note 48; Burton Machinery Co. v. Ruth, 194 Mo.App. 194; Steadly v. Stuckey, 113 Mo.App. 582; State ex rel. v. Adams, 110 Mo.App. 468; Kansas City ex rel. v. Minor, 89 Mo.App. 617. Second, since a multiplicity of suits as the asserted basis of equitable intervention is wholly groundless. In appearing for others "similarly" situated, it is, of course, a prerequisite that plaintiff himself have property interests affected by the ordinance which is the subject of the injunction. Here plaintiff has no property interests in a live dog subject to be disposed of under the terms of the ordinance, nor, indeed, does the ordinance itself in any wise apply. Cases supra. Third, since the evidence discloses a collusive attempt on the part of plaintiff and Dieckman to violate Section 585 of the Municipal Code in the hope of testing Ordinance No. 31698. "He who comes into equity must come with clean hands." Creamer v. Bivert, 214 Mo. 473, 485; Peltzer v. Gilbert, 260 Mo. 500, 524. (3) In any event Ordinance No. 31698 is constitutional. It constitutes a valid exercise of the police power. Blair v. Forehand, 100 Mass. 136, 97 Am. Dec. 82; Sentell v. New Orleans, 166 U.S. 701; City of Carthage v. Rhodes, 101 Mo. 175. Statutes and ordinances in pari materia must be construed together and their consistency respected. Ruschenberg v. Southern Electric Ry. Co., 161 Mo. 70; Sedalia v. Smith, 206 Mo. 363; State v. Clark, 54 Mo. 216; 2 Lewis's Sutherland on Statutory Construction, pp. 844-853, par. 448 (Vol. 1, 8 Ed. par. 82).

Graves, J. All concur, except Atwood, J., not sitting.

OPINION

GRAVES

This is a dog case. The city of St. Louis has three ordinances which deal with the general welfare of the dogs of the city. Perhaps it would be better to say which deal with the general welfare of the public. The record bears some evidence of the fact that it is a made case, and the real question is whether or not it has sufficient evidence of good faith, and if so, has it sufficient of facts to pass muster. The appellant sought to enjoin the city and its officials from enforcing Ordinance No. 31698 of the city of St. Louis. This ordinance is short, and the only two sections thereof read:

"Section One. Whenever any school of medicine, in the city of St. Louis, which is recognized and approved by the Board of Health of the State of Missouri, shall apply to the Health Commissioner for an order to the City Marshal directing him to deliver to such school of medicine a certain number of dogs held and impounded by him and which are reasonably needed by it to teach and maintain the different courses of and for the study of medicine, the Health Commissioner, upon being satisfied as to the standing of said school of medicine, and that the number of dogs requested are reasonably needed by it to teach and maintain its courses of and for the study of medicine, shall make an order to the City Marshal directing him to deliver the said dogs to the said school of medicine.

"Section Two. It shall be the duty of the City Marshal to deliver the said dogs to the said school of medicine as directed by the Health Commissioner, and he shall collect a fee of seventy-five cents per head for the dogs delivered, to cover the expense of taking up and caring for said dogs."

The ordinance became effective on May 19, 1922. It was violently opposed by the Humane Society of the city. The Revised Code of the city of St. Louis contains two sections (583 and 585) which deal with the subject of dogs. Section 583 reads:

"It shall be the duty of the city marshal and his deputies and assistants to take up and impound in a suitable place -- of the location of which he shall give notice by posting a card or notice in some conspicuous place in his office, and by posting a similar card or notice in the office of the license collector -- any dog found in the city of St. Louis without a collar around its neck, marked as herein provided, or which may be found running or being at large unmuzzled, contrary to the provisions of any order issued by the health commissioner as provided by ordinance, shall be impounded."

Section 585 provides the method of the redemption of impounded dogs. It gives the owner three days time to redeem his impounded dog, and if not redeemed in such time authority is given the officers to kill the same. This section provides the details for the redemption. These sections are found in the Revision of 1914 of the general ordinance of the city of St. Louis.

Geo. F Dieckman was made pound-master by the appointment of Anton Schuler, the city marshal of St. Louis. Dieckman was also an officer of the Humane Society, as is the Hon. Douglas W. Robert, the latter being the President thereof. On the morning of June 14, 1922, a dog of the appellant was taken up by men working under Dieckman. Appellant immediately telephoned Robert the predicament of his dog, and requested him to take such action as would release the prisoner. Mr. Robert sent a man post-haste for the necessary documents and tags to procure the release, and before noon of that day he tendered the same, with the necessary cash, to Dieckman for the release of the canine -- a black-and-tan of no proven value, but one close to the heart (as is alleged) of appellant. Dieckman refused, as is said, because he had an order for ten dogs under the ordinance first set out, from the Washington University. Thereupon Mr. Robert, with the necessary papers in his pocket, had Gerhart, the plaintiff (now appellant) sign up, and he immediately filed this suit in equity, by which it is sought to enjoin the respondents from enforcing said Ordinance No. 31698, supra. On the same day the circuit court granted an order upon defendants to show cause on June 22, 1922, why a temporary injunction should not be granted. Dieckman was not a party to the action, but the City Marshal, Schuler, was, as will be seen by the title of this cause. The University did not get the dog, and as the pound-master had a killing of dogs each Tuesday and Saturday, the record would indicate that plaintiff's dog took his departure to the great beyond on Saturday, the 17th of June. After the injunction suit was filed, the plaintiff seems to have lost all interest in his dog, but retained his interest in the lawsuit. Dieckman says he gave directions to his men on the 14th not to kill the dog, but very singularly he cannot account for...