Juengel v. City of Glendale

• Citation: 161 S.W.2d 408
• Decision Date: 05 May 1942
• Docket Number: No. 36619.,36619.
• Parties: JUENGEL et al. v. CITY OF GLENDALE et al.
• Court: United States State Supreme Court of Missouri

161 S.W.2d 408

JUENGEL et al. v. CITY OF GLENDALE et al.

No. 36619.

Supreme Court of Missouri, Division No. 2.

May 5, 1942.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

Suit by Emil Juengel and another against the City of Glendale and others to restrain defendants from enforcing an ordinance licensing and regulating tourist camps. From an adverse decree, the defendants appeal.

Cause transferred to the St. Louis Court of Appeals.

Morton K. Lange, of St. Louis, for appellants.

W. W. Schiek, of St. Louis, for respondents.

PER CURIAM.

The City of Glendale, a city of the fourth class, and its officials appeal from a decree perpetually enjoining them from enforcing an ordinance defining, licensing and regulating "tourist camps." Upon the appellants' application the case was transferred to this court as involving a constitutional question.

The plaintiffs, Emil and Alma Juengel, alleged they were the owners of certain real estate in Glendale and were engaged in the restaurant and tourist camp business and that the defendants were about to enforce the ordinance against them. Their petition then asserts that the ordinance is invalid because (1) it was passed by the Board of Aldermen as an ordinance without having been read three times as required by the statute; (2) one of the aldermen, James Mueller, who voted for the ordinance was not entitled to vote because he was not a citizen and resident of Glendale; (3) a legal majority of the Board of Aldermen was not present voting for the ordinance; (4) the city had no power under the statutes and Constitution to enact the ordinance which is unreasonable, arbitrary, confiscatory and an attempt to regulate matters over which it has no jurisdiction; and (5) "* * * that the ordinance above described is null, void and of no legal effect for the reason that the same will deprive them of their property and rights therein without due process of law, that the same violates the Constitution of the State of Missouri and the Constitution of the United States, in this, that the enforcement of said Ordinance will not only deprive them of their property without due process of law, but will interfere with their rights as citizens to contract and be contracted with, and will invade their rights to be safe and secure in their persons, papers, homes and effects from unreasonable searches and seizures in violation of Section 11, Article 2 and Section 30 of Article 2 of the Constitution of Missouri and Amendment IV, Amendment V and Amendment XIV of the Constitution of the United States and laws enacted thereunder."

The defendants' answer traverses, in separate paragraphs, each of the plaintiffs' allegations. The certified judgment is a general finding for the plaintiffs perpetually enjoining the defendants from enforcing the ordinance.

Though not challenged by the parties, the first problem presented is whether this court has jurisdiction of this appeal by reason of the presence of an alleged constitutional question within the meaning of Art. 6, Sec. 12 and Sec. 5 Amendment of 1884, Art. 6, Const.Missouri, Mo.R.S.A. Robinson v. Nick, 345 Mo. 305, 134 S.W. 2d 112; Village of Grandview v. McElroy, 318 Mo. 135, 298 S.W. 760; City of St. Louis v. Franklin Bank et al., Mo.Sup., 98 S.W.2d 534; State ex rel. Martin v. Childress, 345 Mo. 495, 134 S.W.2d 136.

We doubt that plaintiffs' allegation to the effect that the enforcement of the ordinance will deprive them of their property and rights without due process of law and will interfere with their right to contract and be contracted with, in the absence of a statement of facts showing how their fundamental, organic rights have been or will be violated, is sufficient to raise a constitutional question. Such an averment is merely the pleader's legal conclusion. Village of Grandview v. McElroy, supra; Robinson v. Nick, supra; City of Marshfield v. Brown, 337 Mo. 1136, 88 S. W.2d 339; State ex rel. Kenosha Auto Transport Co. v. Flanigan, Mo.Sup., 159 S.W.2d 598, not yet reported [in State reports]. And this is so even in the presence of an answer joining issue in the same language, in the absence of a record indicating that the parties and the court tried the case on the assumption the constitutional issue was present and essential to the determination of the case. The reason for the rule is that: "As a general rule, the constitutionality of a statute will be passed on only if, and to the extent that, it is directly and necessarily involved in a justiciable controversy and is essential to the protection of the rights of the parties concerned." 16 C.J.S., Constitutional Law, § 94, p. 207. Furthermore, the statute or ordinance must be unconstitutional in any event and the constitutional question must be essential to the determination of the case, invoked by the losing party and denied by the court. Chilton v. Drainage Dist. No. 8 of Pemiscot County, 332 Mo. 1173, 61 S.W.2d 744; State ex rel. Missouri E. P. Co. v. Allen et al., 340 Mo. 44, 100 S.W.2d 868; Municipal Securities Corp. v. Kansas City, Mo.Sup., 186 S. W. 989. This is especially true of a case presenting a plurality of issues, some involving a constitutional construction and some not, as is true in the instant case. State ex rel. Rose v. Webb City, 333 Mo. 1127, 64 S.W.2d 597; State ex rel. Missouri E. P. Co. v. Allen et al., supra. As applied to the validity of a city ordinance challenged on several grounds, including constitutional, it must appear from the record that a constitutional construction of the ordinance was essential to a determination of the case or that the...