Kansas City v. Holmes

Decision Date08 April 1918
Citation202 S.W. 392,274 Mo. 159
PartiesKANSAS CITY v. EDWARD E. HOLMES, Appellant
CourtMissouri Supreme Court

Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.

Affirmed.

Cook & Gossett for appellant.

(1) It is an infraction of the constitutional right to life, liberty and the enjoyment of the gains of a person's own industry, to compel him to shovel, or to hire to be shoveled snow off a sidewalk in a public street which is under the exclusive control of the city, when the snow got there by falling out of the clouds in the course of nature and without any act of omission or commission, or intent of defendant. The city has complete and exclusive control of its streets. Sec. 1, art. 3, Cl. 11, Kansas City Charter (1909, p. 83); Sec. 9752, R. S. 1909. It is the city's duty to keep its streets, including sidewalks, in reasonably safe condition for travel -- a governmental duty -- and not a matter of police regulation, and therefore cannot be shifted under a claim of police regulation. Jackson v. Railway, 157 Mo. 621; Beck v. Brewing Co., 167 Mo. 195; Ford v. Kansas City, 181 Mo. 137; St. Louis v Allen, 53 Mo. 44. (2) It is unconstitutional deprivation of property without due process of law for a city having exclusive control of its streets, including sidewalks, as Kansas City has, to compel a person by sentence of fine or imprisonment, or both, to remove snow falling naturally upon one of such sidewalks, even though it is in front of such person's property, unless all citizens are compelled to work generally on the streets irrespective of place on which work is to be done or property ownership. St. Louis v Allen, 53 Mo. 44; St. Louis v. Speigel, 75 Mo. 145; Town v. Norman, 72 Mo. 380; Elting v. Hickman, 172 Mo. 237; St. Louis v. Dreisoerner, 243 Mo. 217; Barber Co. v. St. Joe, 183 Mo. 455. His other property might be taken and sold under process to pay this fine if he may be so fined. This may not be constitutionally done by any court. St. Louis v. Allen, 53 Mo. 44; Barber Co. v. St. Joe, 183 Mo. 451. (3) It is also a plain species of involuntary servitude to compel a property owner, merely because he is such, to shovel snow naturally falling on a sidewalk in a public street of Kansas City, such compulsion being sought to be enforced by fine or imprisonment, or both, and not applying to all citizens irrespective of property owned and residence. Authorities supra. Such ordinance is unreasonable, unjust and void unless it applies practically to at least all able-bodied citizens, irrespective of property ownership. St. Louis v. Allen, 53 Mo. 44; Town v. Norman, 72 Mo. 380; St. Louis v. Roche, 128 Mo. 542; Elting v. Hickman, 172 Mo. 237; Kansas City v. Whipple, 136 Mo. 475. (4) It is also unconstitutional to compel an owner to pay for the removal of snow falling naturally upon the sidewalk in a public street in Kansas City, in that it is thereby taxing him without uniformity of taxation for the removal of such snow. Gridley v. Bloomington, 88 Ill. 554; Chicago v. O'Brien, 111 Ill. 532; State v. Jackman, 69 N.H. 318; St. Louis v. Spiegel, 75 Mo. 145; Kansas City v. Whipple, 136 Mo. 475. Non-resident property owners cannot be guilty or fined or imprisoned under this ordinance unless happening to be in Kansas City. Snow does not fall and remain upon sidewalks to the same extent in varying though adjoining locations, and the burden of removal varies with the location. It may fall and remain to the same extent in front of valuable as in front of cheap property of the same dimentions and the man rich in personalty, but with no realty, travels the street with same benefit, so far as the snow is concerned, as the landowner. Snow and ice are matters of mere temporary inconvenience or convenience in travel, and removal of the same impossible of any pecuniary benefit to the realty or to the owner of vacant realty more than to the ordinary traveler on the street. (5) Although Kansas City has power under its charter to require by special tax bills property owners to pay for special improvements on the sidewalk or street thereon without regard to its value, nevertheless, all such special tax bills are based upon the theory of special benefits accruing and Kansas City is not by its charter given authority to issue special tax bills for such temporary care of streets as the removal of snow. And compelling the owner by penalty of fine or imprisonment to remove snow from the sidewalk in the street over which the city has exclusive control is a species of taxation not justifiable upon the theory of special benefits, and necessarily it is disproportionate to the value of the property, and also unconstitutional for that reason. Kansas City v. O'Connor, 82 Mo.App. 655-660; St. Louis v. Allen, 53 Mo. 44; Barber Co. v. St. Joseph, 183 Mo. 451.

J. A. Harzfeld, B. N. Mosman and A. F. Smith for respondent.

A city has the right to require by penal ordinance that each property owner clean the snow from the public sidewalk in front of his property. Norton v. St. Louis, 97 Mo. 537; St. Louis v. Ins. Co., 107 Mo. 96; Ford v. Kansas City, 181 Mo. 147; Goddard, Petitioner, 16 Pick. (33 Mass.) 504; Carthage v. Frederick 122 N.Y. 268; State v. McCrillis, 28 R. I. 165; State v. McMahon, 76 Conn. 105; Helena v. Kent, 32 Mont. 279; Lincoln v. Janesch, 63 Neb. 707; McQuillin on Mun. Corp., sec. 924; Dillon on Mun. Corp. (5 Ed.), sec. 713; Freund on Police Power, sec. 620.

BROWN, C. Railey, C., concurs.

OPINION

BROWN, C.

This case was instituted in Municipal Court Number Two for Kansas City, Missouri, upon complaint of the city counselor, charging the defendant with a violation of sections 563 and 626 of the Revised Ordinances of the city of 1909, in that he unlawfully failed and neglected to remove from the sidewalk, in front of property owned by him, ice and snow which obstructed and rendered the sidewalk dangerous, inconvenient and annoying to persons residing in the neighborhood traveling over the sidewalk.

The defendant was found guilty, and a fine of five dollars assessed. An appeal was taken to the criminal court for Jackson County, where upon trial he was again found guilty and the same fine assessed and judgment entered accordingly. Motions for a new trial and in arrest of judgment were overruled and in due time this appeal was taken.

The cause was submitted in the criminal court without a jury upon an agreed statement of facts, by which it was stipulated that defendant was the managing officer of the corporation which owned the land abutting upon the sidewalk on which the snow in question had fallen and lay, and that he made no point that he did not occupy the position of owner; that at the time mentioned in the complaint there was a fall of snow upon the sidewalk rendering it dangerous, inconvenient and annoying to persons walking thereon; and that he did not remove the snow, as charged in the complaint; that the sidewalk, street and abutting property were within the limits of the city; that the sole question involved in the case was and is the validity of the city ordinances on which the complaint was founded. The validity of the ordinances was challenged in the trial court and upon this appeal on the ground that they are in conflict with the provision of Section 4 of Article 2 of the Constitution of the State which declares that all persons have the natural right to life, liberty and the enjoyment of the gains of their own industry; also with Section 21 of the same article, providing that private property shall not be taken or damaged for public use without just compensation; also with the provision of Section 30 of the same article that no person shall be deprived of life, liberty or property without due process of law; also with the provision of Section 31 of the same article that there cannot be in this State either slavery or involuntary servitude except as punishment for crime; also with Section 3 of Article 10 of the Constitution, which provides that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the same; also with Section 4 of the last-mentioned article, providing that property subject to taxation shall be taxed in proportion to its value.

Sections 563 and 626 of the City Ordinances are as follows:

"Ice, Snow, Etc -- Repairs -- It shall be the duty of all persons, owning or occupying any real property, fronting upon any street, to keep the sidewalk, curbing and guttering in front and alongside of such property and on the same side of the street in good repair and order, and to clean the same, and remove from any such sidewalk, curbing and guttering all ice, snow, earth or other substance that in anyway obstructs or renders the same dangerous, inconvenient or annoying to any person.

"Penalty. Any person, firm or corporation failing, neglecting or refusing to comply with any provision of this chapter shall, on conviction, where no other penalty is provided, be fined in any sum not less than one nor more than five hundred dollars."

Appellant does not question that these ordinances are expressly authorized by Section 16 of Article 3 of the Kansas City charter.

We do not think that any of the constitutional provisions used as a weapon of attack against these ordinances have any relation or reference to the facts of this case with the exception of Section 30 of Article 2 providing that no person shall be deprived of life, liberty or property without due process of law, and Section 3 of Article 10 providing for the uniformity of taxes, and Section 4 of Article 10 which provides that property subject to taxation shall be taxed in proportion to its value. These three propositions can best be considered together, for the question at once arises...

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