Howe v. City of St. Louis

• Decision Date: 22 July 1974
• Docket Number: No. 56852,56852
• Citation: 512 S.W.2d 127
• Parties: Jerome L. HOWE et al., Appellants, v. CITY OF ST. LOUIS, a Municipal Corporation, et al., Respondents.
• Court: Missouri Supreme Court

Page 127

512 S.W.2d 127

Jerome L. HOWE et al., Appellants, v. CITY OF ST. LOUIS, a Municipal Corporation, et al., Respondents.

No. 56852.

Supreme Court of Missouri, En Banc.

July 22, 1974.

Motion for Rehearing or Transfer to Court en Banc Denied

Jan. 14, 1974.

Cook, Murphy, Lance & Mayer, Samuel B. Murphy, Francis M. Barnes, III, Robert J. Koster, St. Louis, for appellants.

Robert W. Van Dillen, City Counselor, Eugene P. Freeman, Associate City Counselor, St. Louis, for respondents.

STOCKARD, Commissioner.

This is an appeal by plaintiffs from the judgment of the Circuit Court of the City of St. Louis in which the petitions in two consolidated cases were dismissed and injunctive relief denied. Appellate jurisdiction is in this court because the validity of two ordinances of the City of St. Louis are challenged on constitutional grounds.

The provisions of the two ordinances, material to the issues on this appeal, are as follows:

Ordinance No. 55381, as amended.

'Section One. It shall be unlawful for any person to go in or upon any private or multiple family residence located in (certain enumerated zoning districts) to solicit or encourage the owner or owners, or occupant or occupants thereof, to sell, offer for sale, or list such property, or to move therefrom, or to solicit or encourage such action by the use of 'flyers,' 'circulars,' letters, or similar material delivered without having been requested to do so by the owner or owners or occupant or occupants of such residence.

'Section Two (c)(i). Notwithstanding Section One, hereof, the Council shall on the application of any person, firm or corporation, grant such person, firm or corporation, a permit to solicit sales or listings within the area specified in the permit, if it shall find that such solicitation within the requested area will not result in, or cause a representation that any block, neighborhood or area has undergone, will or might undergo, a change with respect to the religious, social, or nationality composition of the block, neighborhood, or area which would discourage the purchase or encourage the sale of any property in a particular area because of such real or possible change.

'Section Four. Nothing herein shall be deemed to prohibit any person from advertising or soliciting properties or listings in any newspaper, or radio, or television, or magazine, or from advertising through such means properties available for purchase or rental or lease.'

Ordinance 55382, as amended.

Section One. Notwithstanding Section 740.010 and Section 740.020 (the substance of these sections is not in the record before us) it shall be unlawful for any person to place any sign on property, public or private, located in (the same zoning districts enumerated in Ordinance No. 55381) which such sign indicates that any property is such zoning district is 'for sale,' 'open' for inspection, or otherwise available for purchase, or that any property in such zoning district has been 'sold,' either directly by or from the owner or by or through a real estate agent or broker.

'Section Two (c)(i). Notwithstanding Section One, hereof, the Council shall on the application of any person, firm or corporation, grant such person, firm or corporation, a permit to solicit sales or listings within the area specified in the permit, if it shall find that such solicitation within the requested area will not result in, or cause a representation that any block, neighborhood or area has undergone, will or might undergo, a change with respect to the religious, social, or nationality composition of the block, neighborhood, or area, which would discourage the purchase or encourage the sale of any property in a particular area because of such real or possible change.'

The stated purpose of Ordinance 55381 is 'to prohibit persons from interfering with the peaceful possession of owners and occupants of residences' in the enumerated zoning districts 'by the use of certain methods to solicit or encourage such owners or occupants to sell or move from such residences.' The stated purpose of Ordinance 55832 is 'to prohibit real estate 'for sale,' 'open,' and 'sold' signs within certain zoning districts.'

Both ordinances contain a provision for an appeal from an adverse decision, and for a review 'as provided by law for the review of administrative decisions.'

In the petition challenging the validity of Ordinance 55381 the plaintiffs are nine corporations 'licensed to engage in the real estate business' who seek to represent all other corporations engaged in their business as a class, and ten 'individuals licensed to engage in the real estate business as brokers or agents,' who seek to represent all others engaged in the same business as a class. In the petition challenging the validity of Ordinance 55382, the plaintiffs are seven of the individuals named as plaintiffs in the other suit who are 'licensed to engage in the real estate business as brokers or agents' who seek to represent all others engaged in their business as a class; the same nine corporations named as plaintiffs in the other suit, who seek to represent all others engaged in their business as a class; and four persons who sue 'on behalf of themselves only' as owners of real property in the City of St. Louis.

We need not detail the evidence. It is sufficient to say that plaintiffs presented eight witnesses, seven of whom were licensed real estate brokers or agents engaged in the real estate business in the City of St. Louis. All of these persons testified that prior to the enactment of the two ordinances in the furtherance of their business they had engaged in some or all of the activities prohibited by the ordinances; that is, telephone, personal, and mail solicitations, and the placing of for sale signs on property which contained the name of the real estate company representing the owner. The evidence also was to the effect that expenditures for newspaper advertising had increased after the enactment of the ordinances, presumably because it was necessary to turn to that form of permitted advertising. The eighth witness, who was not one of the individual plaintiffs, testified that she was the owner and a former resident of property in one of the enumerated zones, and had attempted to sell her property without success. She applied by telephone for a permit to place a 'for sale' sign on the property and was refused. No appeal was taken.

The trial court held: 'The plaintiffs have not shown grounds for equitable or declaratory relief. Further, no violation of the plaintiffs' constitutional rights have been shown through the enactment or enforcement of City of St. Louis Ordinance 55381 (as amended), and City of St. Louis Ordinance 55382 (as amended),' and it entered judgment dismissing plaintiffs' petitions.

Both ordinances have as their purpose to prevent what has been termed as 'blockbusting,' which has been described as a process through which individuals engaged in the real estate business stimulate and prey 'on racial bigotry and fear by initiating and encouraging rumors that negroes * * * (are) about to move into a given area, that all non-negroes * * * (will) leave, and that the market values of properties * * * (will) descend to 'panic prices' with residence in the area becoming undesirable and unsafe for non-negroes.' Contract Buyers League v. F. & F. Investment, 300 F.Supp. 210 (N.D.Ill.1969).

Appellants first contend that the two ordinances 'abridge the individual right of free speech' as guaranteed by the Constitutions of the United States and Missouri. There can be no question but that the ordinances do abridge speech. But the issue is whether that abridgement is in contravention of appellants' constitutional right of free speech.

Preliminary to the consideration of the precise issues before us, we expressly hold that those issues, as to the validity of Ordinance 55381, do not include the question whether an individual citizen, who is not a real estate broker or salesman acting in furtherance of a business enterprise, may engage in the proscribed conduct. There is no such individual named as plaintiff in the petition challenging the validity of Ordinance 55381. As to Ordinance 55382, four persons are named as plaintiffs who alleged that they 'own real property in the City of St. Louis,' and that they have sued 'on behalf of themselves only.' They do not allege that they own property 'in zoning districts A, B, C, or D,' which are the only areas to which the restrictions of the ordinance apply. At trial none of these four plaintiffs testified, and there is no evidence from which it may be found that the proscriptions of the ordinance have adversely affected any of them. Our subsequent use of the term 'appellants' will refer to the plaintiffs in each petition other than those four individuals, because as to them there is a total lack of proof from which there can be found a standing to challenge Ordinance 55382.

The acts or conduct of appellants prohibited by the ordinances pertain to advertising or other conduct related solely to a commercial activity as distinguished from the dissemination of ideas or information outside of what has been termed the 'commercial sector,' which has been 'roughly' defined as 'the production and exchange of goods and services for profit, as distinct from the production or exchange of ideas on political, religious, artistic and similar matters.' Emerson, The System of Freedom of Expression, p. 414--415 (1970). 'It is now well settled that while 'freedom of communicating information and disseminating opinion' enjoys the fullest protection of the First Amendment, 'the Constitution imposes no such restraint on government as respects purely commercial advertising. '' United States v. Hunter, 459 F.2d 205, 211 (4th Cir. 1972). Cited in support are such cases, among others, as Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942); Breard v. City of Alexandria, 341...