Komen v. City of St. Louis

• Decision Date: 20 December 1926
• Docket Number: 23922
• Citation: 289 S.W. 838,316 Mo. 9
• Parties: Julius Komen, Appellant, v. City of St. Louis et al
• Court: Missouri Supreme Court

289 S.W. 838

316 Mo. 9

Julius Komen, Appellant, v. City of St. Louis et al

No. 23922

Supreme Court of Missouri

December 20, 1926

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

Affirmed.

Banister Leonard, Sibley & McRoberts and Greensfelder, Dyott & Grand for appellant.

(1) The ordinance in question cannot be justified under the police power of the city. 12 C. J. 929-931. (2) This ordinance is in conflict with Sec. 7641, R. S. 1919, and Article IV, Section 13, of Charter of City of St. Louis, which provide that an ordinance shall not contain more than one subject, which shall be clearly expressed in its title. State v Persinger, 76 Mo. 346; State v. Great Western C. & T. Co., 171 Mo. 634; State ex inf. v. Borden, 164 Mo. 221; State v. Sloan, 258 Mo. 305; State v. Hurley, 258 Mo. 275; Woodward Hardware Co. v. Fisher, 269 Mo. 271; Booth v. Scott, 205 S.W. 633; State v. Crites, 209 S.W. 863. (3) The ordinance is void because it is discriminatory and is class legislation. State ex rel. v. Kimmel, 256 Mo. 637; State v. Baskovitz, 250 Mo. 82; State v. Bottling Co., 261 Mo. 300; State v. Lieberman, 26 Neb. 464; Ragio v. State, 86 Tenn. 272; State v. Miksick, 225 Mo. 561; Ex parte Lerner, 218 S.W. 331. (4) The ordinance is void in that it is opposed to the public policy of this State as indicated by Secs. 3596 and 3597, of R. S. 1919. Kansas City v. Hallett, 59 Mo.App. 160; State v. Meyer, 185 Mo. 583; St. Louis v. Scheer, 235 Mo. 721; State v. Tilkemeyer, 226 Mo. 130; St. Louis v. World Pub. Co., 227 Mo. 148. (5) The ordinance is void because it is special legislation. State v. Grannoman, 132 Mo. 326.

Julius T. Muench and Oliver Senti for respondents; Henry Kortjohn of counsel.

(1) Power to enact the ordinance is lawfully conferred upon the city by its charter. Sec. 1, Art. 4; Pars. 23, 25, 26, 33 and 35, Section 1, Article I, Charter of City of St. Louis; Moving Co. v. O'Brien, 240 S.W. 483; Wagner v. St. Louis, 284 Mo. 411. (2) Courts will not hold a statute or ordinance unconstitutional unless it contravenes the organic law in such a manner as to leave no doubt as to its unconstitutionality. (a) The courts will not declare an ordinance unreasonable unless it is so clearly unreasonable that there can be no difference upon the question in the minds of reasonable men. (b) One who attacks the validity of an ordinance has the burden of satisfying the court that any conclusion except its invalidity cannot be reached by reasonable men. Bledsoe v. Stallard, 250 Mo. 154; State v. Layton, 160 Mo. 474; State ex rel. v. Fort, 210 Mo. 512; St. Louis v. Weber, 44 Mo. 547; Wagner v. St. Louis, 284 Mo. 411. (3) Ordinance 31353 is not in conflict with the State Sunday-Closing Law. St. Louis v. Bernard, 249 Mo. 51. (4) An ordinance of the city of St. Louis requiring bakery shops to close after nine, a. m. on Sunday does not violate the Missouri Constitution. State v. Ambs, 20 Mo. 214; State v. Railroad Co., 239 Mo. 196; St. Louis v. DeLassus, 205 Mo. 578; 37 Cyc. 541. (5) The Fifth Amendment to the Federal Constitution operates only as a limitation of the powers of Congress and is not violated by a Sunday-closing regulation enacted by the State or its municipality. Capital Dairy Co. v. Ohio, 183 U.S. 238, 46 L.Ed. 245. (6) A Sunday-closing regulation is an exercise of the police power of the State and does not violate the Fourteenth Amendment to the Federal Constitution. Brunswick-Balke-Collander Co. v. Evans, 228 F. 996; Hennington v. Georgia, 41 L.Ed. 166; Pettit v. Minnesota, 44 L.Ed. 716. (7) An ordinance requiring the closing of bakery shops after nine a. m. on Sunday does not discriminate against Orthodox Jews. Commonwealth v. Wolf, 3 Serg. & R. 48; Parker v. State, 84 Tenn. 476; Commonwealth v. Has, 122 Mass. 40; Commonwealth v. Starr, 144 Mass. 359; Frolickstein v. Mayor of Mobile, 4 Ala. 725; Ex parte Andrews, 18 Cal. 678; Council v. Benjamin, 49 Am. Dec. 608. (8) A statute of the State prescribing the requirements of a title to an ordinance of a city of the first class has no application to the city of St. Louis. State ex rel. Hawes v. Mason, 153 Mo. 29. The title to an ordinance is sufficient if it is not deceptive as to the chief topic and if the minor features have a natural connection with the subject named in the title. Sound policy and legislative convenience dictate a liberal construction of titles to the subject-matter of enactments to maintain their validity; where the objects dealt with are germane to the subject mentioned the title is sufficient. St. Louis v. Leissing, 190 Mo. 464; St. Louis v. Weitzel, 130 Mo. 600; St. Louis v. Whitaker, 160 Mo. 59.

OPINION

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 nine 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 nine 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 One. -- 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 nine o'clock, a. m.

"Section Two. -- 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 twenty or more than fifty dollars for each and every offense.

"Section Three. -- 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 Four. -- Owner or Agent's liability. A keeper of a bakery shop, confectionary 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 nine 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 nine 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 nine 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 nine 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 law-making body of the city of St. Louis to enact the ordinance and as a consequence to prescribe the regulations therein contained. Section One of Article IV 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 One of Article One 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...