Kansas City Gunning Advertising Co. v. Kansas City

• Decision Date: 09 February 1912
• Parties: KANSAS CITY GUNNING ADVERTISING COMPANY, Appellant, v. KANSAS CITY et al
• Court: Missouri Supreme Court

144 S.W. 1099

240 Mo. 659

KANSAS CITY GUNNING ADVERTISING COMPANY, Appellant, v. KANSAS CITY et al

Supreme Court of Missouri

February 9, 1912

Appeal from Jackson Circuit Court. -- Hon. John G. Park, Judge.

Reversed and remanded (with directions).

Reed Atwood, Yates, Mastin & Harvey and McCune, Harding, Brown & Murphy for appellant.

(1) The charter of Kansas City gives no express authority to pass the ordinance in question. There being no express authority there is no presumption in favor of the validity of the ordinance. There is no express authority given to declare that a nuisance which in fact is not so. St. Louis v Packing Co., 141 Mo. 383; St. Louis v. Butler, 178 Mo. 311; Village of St. John v. McFarlan, 33 Mich. 72; Dillon on Municipal Corporations (4 Ed.), p. 155; Schott v. People, 89 Ill. 197; Brown v. Carrollton, 122 Mo.App. 276; Yates v. Milwaukee, 10 Wall. 497. There being no express authority, the city can only derive authority from its general implied police powers, and there can be no implied police power except it grows out of necessity. It therefore devolves upon the defendant in this case to show that said ordinance is not merely expedient and desirable, but that it is indispensably necessary. Wilson v. Commonwealth, 90 Pa. St. 498; Railroad v. Jacksonville, 67 Ill. 40; Stockton Laundry Case, 26 F. 611. (2) The ordinance is in violation of section 21, article 2, Constitution of Missouri, which forbids the taking or damaging of private property without just compensation, and of section 30, article 2, which provides that no person shall be deprived of life, liberty or property without due process of law, and is unreasonable, oppressive, discriminatory and void. Chicago v. Gunning System, 214 Ill. 268; Com. v. Adv. Co., 188 Mass. 348; People v. Green, 83 N.Y.S. 460; Bosback v. Sands, 95 Md. 400; Bill Posting Co. v. Atlantic City, 58 A. 342; Crawford v. Topeka, 51 Kan. 756; Passaic v. Patterson, 62 A. 267; People ex rel. v. Murphy, 195 N.Y. 126, 21 L.R.A. (N.S.) 735; Varney v. Williams, 21 L.R.A. (N.S.), 741; State v. Whitlock, 149 N.C. 542. (3) The bulletin boards mentioned in the petition were constructed under the existing law of the city. The city having authorized their construction, their manner of construction, their location, cannot now change its mind and declare them to be nuisances. Allison v. Richmond, 51 Mo.App. 136; Wadleigh v. Gilman, 12 Me. 406; Jackson v. Miller, 60 A. 1021; Buffalo v. Chadeayne, 134 N.Y. 165; St. Louis v. Theater Company, 202 Mo. 701; Freund, Police Power, par. 538, 539 and 540. (4) The bulletin boards having been built under legal authority of the city, that same legal authority cannot declare them a nuisance unless they are so in fact, which is a question to be determined in each case. Transportation Co. v. Chicago, 99 U.S. 635; State ex rel. v. St. Louis, 207 Mo. 365; Payne v. Company, 112 Mo. 17; Casey v. Company, 114 Mo.App. 61. (5) The city has no power by ordinance to declare that to be a nuisance which is not so in fact, or to suppress in part or in toto any business within its limits which is not a nuisance per se. St. Louis v. Heitzberger, 141 Mo. 375; Yates v. Milwaukee, 10 Wall. 497; Crawford v. Topeka, 51 Kan. 762; Bryan v. Chester, 212 Pa. St. 259; Salem v. Company, 89 Mass. 431; Chicago v. Laflin, 49 Ill. 172; Babcock v. Buffalo, 59 N.Y. 268; Cole v. Kegler, 64 Iowa 591; 1 Am. & Eng. Ency. Law (2 Ed.), 90 (note). (6) The ordinance might be valid and reasonable as to all future constructions, yet invalid and unreasonable when applied retroactively. Whitmeir v. Buffalo, 118 F. 773. (7) This ordinance is invalid even as to future constructions. It is discriminatory. It is leveled against the business and not the boards. It deprives the lot owner of the use of a portion of his lot. It violates both the State and Federal Constitutions. Bill Posting Co. v. Denver, 107 P. 261; People v. Murphy, 195 N.Y. 126; Bryan v. Chester, 212 Pa. St. 256; Varney v. Williams, 100 P. 867; Passaic v. Patterson, 62 A. 267; State v. Whitlock, 149 N.C. 542; Crawford v. Topeka, 51 Kan. 756; Bill Posting Co. v. Atlantic City, 62 A. 267; People v. Green, 83 N.Y.S. 460; Commonwealth v. Boston, 188 Mass. 348; Chicago v. Gunning, 214 Ill. 628; St. Louis v. Hill, 116 Mo. 527; Western v. Knickerbocker, 103 Col. 11; Bostock v. Sands, 95 Md. 400; Wright v. Hart, 182 N.Y. 330; Austin v. Murray, 16 Pick. 126; Gaines v. Buford, 1 Dana (Ky.) 481; Mugler v. Kansas, 123 U.S. 661. (8) The enforcement of an ordinance is a quasi-criminal action, and not on a plane with a purely civil one. If the ordinance is held to be valid, the city must look to the method prescribed in the ordinance for its enforcement. Stock Exchange v. McClaughry, 148 Ill. 381; Village of St. John v. McFarlan, 33 Mich. 72; Village of Wampum v. Moore, 34 Wis. 450; Dillon, Mun. Corp. (5 Ed.), sec. 727, 1107, note; 1 High on Injunctions, sec. 700; 2 Story, Eq. Jur., sec. 857; Chicago v. Collins, 49 L.R.A. 410; Poyer v. DesPlaines, 123 Ill. 111; Railroad v. Ottawa, 148 Ill. 397; Yates v. Batavia, 79 Ill. 500.

Francis M. Hayward and E. C. Meservey for respondent.

(1) The ordinance in question, except section 4, was a valid exercise of the powers conferred by the Charter of 1889. Art. 1, sec. 1, par. 10, par. 31; Gunning Co. v. St. Louis, 235 Mo. 99. (2) Such ordinance, omitting section 4 thereof, is a reasonable exercise of the police power as to all billboards to be constructed or reconstructed and is not a taking of property without just compensation or without due process of law. Gunning Co. v. St. Louis, 235 Mo. 99; In re Wilshire, 103 F. 620; Whitmer v. Buffalo, 118 F. 773; Rochester v. West, 164 N.Y. 510; Gunning System v. Buffalo, 75 A.D. 31; Rideout v. Knox, 148 Mass. 368; Dillon, Mun. Corp. (4 Ed.), p. 211; Mugler v. Kansas, 123 U.S. 623; St. Louis v. Theatre Co., 202 Mo. 690; Campbell v. Kansas City, 102 Mo. 326; Welch v. Swasey, 193 Mass. 364. (3) It is also a valid exercise of the police power to require all existing billboards to conform to the requirements of the ordinance within six months after its passage. St. Louis v. Theatre Co., 202 Mo. 690; Gunning Co. v. St. Louis, 235 Mo. 99; In re Wilshire, 103 F. 620; Baumgartner v. Hasty, 100 Ind. 575; North Chicago v. Lake View, 105 Ill. 207; Harvey v. DeWoody, 18 Ark. 252; St. Louis v. Kaime, 180 Mo. 309; Mugler v. Kansas, 123 U.S. 623; Kidd v. Pearson, 128 U.S. 1; Rideout v. Knox, 148 Mass. 368; Campbell v. Kansas City, 102 Mo. 326; Arms v. Ayer, 192 Ill. 601; Pauley v. Steam G. & L. Co., 131 N.Y. 90; Sewell v. Moore, 166 Pa. 570; St. Louis v. Inv. Co., 226 Mo. 148. (4) Defendants are entitled to equitable relief on the ground that it will prevent a multiplicity of suits and that the court having become possessed of the cause will retain control of it until it has accomplished complete justice between the parties, and the enforcement of a city ordinance is no exception to the rule. Coal Co. v. St. Louis, 130 Mo. 323; Pomeroy's Eq. Jur. (3 Ed.), secs. 251 and 236; Dillon, Mun. Corp. (5 Ed.), sec. 727; Watertown v. Mayo, 109 Mass. 315; Houlton v. Titcomb, 102 Me. 273; Watertown v. Cowen, 4 Paige (N. Y.) 510; Cohoes v. Delaware, 134 N.Y. 397; Savings Trust v. Collonious, 63 Mo. 295; McCollum v. Boughton, 132 Mo. 601.

BOND, C. Brown, C., concurs. Graves and Brown, JJ., dissent for the reasons expressed by Graves, J., in his dissenting opinion in the St. Louis cases, 235 Mo. 99.

OPINION

In Banc

BOND C.

Plaintiff is a Missouri corporation and is the owner of a sign painting and general advertising business, carried on in Kansas City, Missouri, in the conduct of which it owns and uses about three hundred bill boards, bulletin boards and other structures, some of which are rented to advertisers under contracts requiring their maintenance for the benefit of the lessees.

Plaintiff brought this suit to avoid and enjoin the provisions of an ordinance which had been passed by Kansas City on the 21st of September, 1905, to regulate the erection and maintenance of signs, bill boards and for other purposes, for the alleged reason that it is unreasonable, oppressive and confiscatory; that it does not have uniform operation as to the classes to which it applies; and that it deprives the owners of lands adjoining the street of the right to use the same without compensation. The ordinance was, to-wit:

AN ORDINANCE

Regulating the Erection and Maintenance of Signs and Bill Boards; Providing for the Issuance of Permits for Their Construction; and Providing Penalty for Violation Thereof.

Be It Ordained by the Common Council of Kansas City:

Section 1. No person, firm or corporation shall erect or maintain within the city limits, any bill board or other board, fence, sign or structure erected for advertising purposes, or upon which any advertisement is shown, painted or displayed in any way, except as is hereafter in this ordinance specified.

Section 2. No bill board or other board, fence, sign or structure erected for advertising purposes, or upon which any advertisement is shown, painted or displayed in any way shall be erected or maintained nearer to the street line than twelve feet, and same shall not exceed in height ten feet from the lower to the upper edge, and the lower edge must not at any point be higher than two feet above the surface of the ground.

Section 3. All bill boards or other boards, described in section 1 of this ordinance, shall be so constructed as to leave a clear space of at least eighteen inches between the lower edge of said bill board or other board and the surface of the ground.

Section 4. It shall be unlawful to erect or maintain any bill board or other board, fence, sign or structure erected for advertising purposes, or upon which any advertisement

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