Komen v. City of St. Louis

• Decision Date: 20 December 1926
• Docket Number: No. 23922.,23922.
• Citation: 289 S.W. 838
• Parties: KOMEN v. CITY OF ST. LOUIS
• Court: Missouri Supreme Court

289 S.W. 838

KOMEN v. CITY OF ST. LOUIS

No. 23922.

Supreme Court of Missouri, Division No. 2.

December 20, 1926.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

Suit by Julius Komen against the City Ok St. Louis and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Banister, Leonard, Sibley & McRoberts and Greensfelder, Dyott & Grand, all of St. Louis, for appellant.

Julius T. Muench, City Counselor, and Oliver Senti, First Asst. City Counselor, both of St. Louis (Henry Kortjohn, Jr., of St. Louis, of counsel), for respondents.

WALKER, P. J.

The plaintiff brought suit in the circuit court of the city of St. Louis to enjoin the police from arresting him for keeping open his bakery on Sunday and exposing to sale his products after 9 o'clock a. m. of that day in violation of a city ordinance, No. 31353, prohibiting the sale of bread, cakes, and other bakery products after 9 o'clock a. m. on the first day of the week, called Sunday. Upon the filing of the petition a temporary restraining order was issued enjoining the plaintiff's arrest for the violation of the ordinance. On a final hearing a permanent writ was denied. From this judgment the plaintiff appealed to this court, and, pending the determination of the appeal, the trial court ordered the temporary injunction to remain in force.

The plaintiff alleges that he and his patrons are Orthodox Jews; that his products are prepared in accordance with the requirements of that faith; and that he and they observe Saturday, or the Jewish Sabbath, as a day of worship and rest; and that Ordinance No. 31353 discriminates against them and violates their religious freedom.

The ordinance complained of is as follows:

"Be it ordained by the city of St. Louis, as follows:

"Section 1. No baker or bakeshop keeper shall keep open or exhibit for sale or sell any of the articles hereinafter described on the first day of the week, commonly called Sunday, after the hour of 9 o'clock a. m.

"Section 2.—Penalty for Keeping Open Stores.—Any keeper of a bakery store, or bakeshop, who shall keep open said store or shop for the purpose of sale or expose for sale or sell any of the articles hereinafter enumerated on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined not less than $20 or more than $50 for each and every offense.

"Section 3.—Bakery Storekeeper Defined.— Sale of Article Prohibited, When.— A bakery storekeeper or shopkeeper, within the meaning of this ordinance, shall be defined to be any person or persons, copartnership or corporation, dealing in bread, coffee cake, sweet cakes, doughnuts, pies, biscuits, crullers, rolls and buns or any of them.

"Section 4.—Owner or Agent's Liability.—A keeper of a bakery shop, confectionery or store within the meaning of this ordinance shall be construed to include the agents and servants of such keeper as far as the penalties of this ordinance and liabilities thereunder are concerned.

"Approved July 11, 1921."

The validity of this ordinance is assailed for the reasons set forth in plaintiff's petition, which we will consider later.

At the hearing on the merits in the circuit court testimony as to the religion of the plaintiff and his patrons, the requirement of their religion as to the preparation of food, the volume of plaintiff's business and the effect thereon of enforcing the ordinance, the sale after 9 o'clock, a. m. on Sunday of similar products as a component part of meals by hotels and restaurants, plaintiff's observance of Saturday as a day of rest and his inability to prepare his products in time to supply his patrons therewith before 9 o'clock a. m. on Sunday, and threats of the police to arrest him if he sold or delivered his products in violation of the terms of the ordinance, were submitted by the plaintiff.

It was shown by the defendants that plaintiff, unless prevented by the police, would keep his shop open and sell bakery products therein on Sundays after 9 o'clock, a. m.; that by increasing the number of his employees and enlarging his equipment plaintiff could complete the production and sale of his products by 9 o'clock, a. m. on Sunday; and that the only instruction given to the police in regard to the enforcement of the ordinance was a copy delivered to the captain of each district with a typewritten notation on the bottom that violations thereof were not to be permitted.

I. Fourteen reasons are stated by the plaintiff in support of his contention that the ordinance in controversy is invalid. We shall consider them in their order.

The first assails the authority of the lawmaking body of the city of St. Louis to enact the ordinance and as a consequence to prescribe the regulations therein contained. Section 1 of article 4, of the Charter of the City of St. Louis vests the legislative power of the city in a board of aldermen. The following paragraphs, numerically designated, of section 1 of article 1 of the Charter, confer upon the board, in the enactment of ordinances, the following powers:

"(23) To license and regulate all persons, firms, corporations, companies and associations engaged in any business, occupation, calling, profession or trade."

"(25) To define and prohibit, abate, suppress and prevent or license and regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property and all other things whatsoever detrimental or liable to be detrimental to the health, morals, comfort, safety, convenience or welfare of the inhabitants of the city and all nuisances and causes thereof.

"(26) To prescribe limits within which business, occupations and practices liable to be nuisances or detrimental to the health, morals, security or general welfare of the people may lawfully be established, conducted or maintained."

"(33) To do all things whatsoever expedient for promoting or maintaining the comfort, education, morals, peace, government, health, welfare, trade, commerce or manufactures of the city or its inhabitants."

"(35) To exercise all powers granted or not prohibited to it by law or which it would be competent for this charter to enumerate."

These charter provisions are nothing more than a declaration of the city's police power, which, supplemented by paragraph 14, § 26, art. 3, of the Charter, known as the general welfare clause, give the board of aldermen ample authority to enact Ordinance No. 31353, which is in the nature of a police regulation to insure the safety, health, comfort, and welfare of its citizens; but, independent of these express charter provisions, the implication of the city's power arising out of the grant of its corporate existence by the state is sufficiently evident to authorize the enactment and enforcement of the ordinance. To hold otherwise would be to deprive the city as an entity and a recognized subdivision of the state of one of the powers necessary to enable it to perform its governmental functions. Put more strongly, the exercise of the police power by a city in the regulation of vocations is one of the municipal functions necessarily and inseparably incident to its existence as a corporation. 1 Bl. Coin. 475.

While the power of a municipality to exercise the police power has frequently been challenged on the ground that it is a sovereign power, nondelegable, the doctrine is now well established that the Legislature may, in express terms or by implication, delegate to municipal corporations the exercise of police power within their corporate limits. Sanders v. So. Elec. R. Co., 147 Mo. 411, 48 S. W. 855; State v. Cowan, 29 Mo. 330; Metcalf v. St. Louis, 11 Mo. 102.

Although the trust reposed by the state is official and personal and may be discharged only by those to whom the state commits it (Trenton v. Clayton, 50 Mo. App. 535; Day v. Green, 4 Cush. [Mass.] 433; Chicago v. Stratton, 162 Ill. 494, 44 N. E. 853, 35 L. R. A. 84, 53 Am. St. Rep. 325), this doctrine is not to be so construed and applied as to require the entire board of aldermen to engage personally in every step necessary to the exercise of the function. The board's official duty may be fully discharged and its municipal discretion exhausted by the enactment of ordinances to be executed by the proper officers of the city. St. Louis v. Weitzel, 130 Mo. 600, 31 S. W. 1045; Bliss v. Kraus, 16 Ohio St. 54; Batsel v. Blaine (Tex. App.) 15 S. W. 283; Patterson v. Taylor, 51 Ma. 275, 40 So. 493; Gundling v. Chicago, 176 Ill. 340, 52 N. E. 44, 48 L. R. A. 230; People v. Rochester, 45 Hun. (N. Y.) 102.

Further than this, the Legislature may confer police power upon a municipality over subjects within the provisions of existing state laws. State v. Walbridge, 119 Mo. 383, 24 S. W. 457, 41 Am. St. Rep. 663; St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791; State v. Wister, 62 Mo. 592, and cases cited in 28 Cyc. under paragraph 4, p. 696, note 96. Of this, more later.

Plaintiff's second contention is that the ordinance is unjust, unreasonable, and oppressive. These adjectives strike the ear with a harsh resonance To justify their use in stigmatizing a statute, state or municipal, the most serious and convincing reasons should be adduced. To render a law unjust it must be contrary to right or justice, to render it unreasonable it must be immoderate in its terms, and to render it oppressive it must, in its operation, be harsh, rigorous, or severe. The ordinance applies with uniform exactness to all persons of a class, viz., bakers and bakeshop keepers. Its purpose, evident from its provisions, is to prohibit all within the class from plying their vocation after 9 o'clock a. m. on Sundays. In this respect it is more liberal than the state statute (section 3599, R. S. 1919), which includes within its provisions, with the exceptions noted in section 3600, all persons and places of barter and trade in the city and extends its limitations over the entire 24 hours...