Marshall v. Kansas City, No. 48419

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSTORCKMAN; WESTHUES; EAGER; LEEDY, J., dissents and concurs in the dissenting opinion of EAGER; DALTON; EAGER; DALTON
Citation355 S.W.2d 877
Decision Date09 April 1962
Docket NumberNo. 48419
PartiesFrank J. MARSHALL, d/b/a Marshall's Restaurant, et al., Respondents, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.

Page 877

355 S.W.2d 877
93 A.L.R.2d 1012
Frank J. MARSHALL, d/b/a Marshall's Restaurant, et al., Respondents,
v.
KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
No. 48419.
Supreme Court of Missouri, En Banc.
April 9, 1962.

Page 878

John Phillip Ryan, City Counselor, Anthony P. Nugent, Jr., Associate Counselor, Harold L. Holliday, Associate Counselor, Kenneth L. Gottschall, Asst. City Counselor, Kansas City, for appellant, Kansas City, Mo.

Bellemere & Bellemere, Kansas City, for respondents.

Alvin Shapiro, Kansas City, Jack N. Fingersh, Kansas City, Sol Rabkin, Paul Hartman, New York City, Theodore Leskes, New York City, amici curiae.

Thos. J. Neenan, City Counselor, David S. Hemenway, Asst. City Counselor, St. Louis, for City of St. Louis, amici curiae.

William K. Hayden, Leonard S. Hughes, Jr., Kansas City, amicus curiae N.A.A.C.P.

STORCKMAN, Judge.

This case involves the constitutionality of an ordinance of the city of Kansas City,

Page 879

Missouri, purporting to render it unlawful for restaurants, hotels and motels to refuse to serve or accommodate any person for any reason directly or indirectly relating to the race or color of such person. The plaintiffs, all engaged in the restaurant business, filed this action against the city of Kansas City seeking a declaration of the rights of the parties under the ordinance. The trial court sustained plaintiffs' motion for judgment on the pleadings, held the ordinance unconstitutional, and permanently enjoined the defendant from enforcing it against the plaintiffs. The defendant appealed. In addition to the briefs filed by the parties, three briefs by amici curiae in support of the ordinance have been filed by leave.

Jurisdiction of the appeal is in the supreme court since the constitutionality of the municipal ordinance was within the issues of law tendered by the pleadings and decided by the trial court. Art. V, Sec. 3, Constitution of Missouri 1945, V.A.M.S.; Kansas City v. Hammer, Mo., 347 S.W.2d 865.

On January 25, 1960, the plaintiffs filed their petition for a declaratory judgment under S.Ct. Rule 87.01 et seq., V.A.M.R. and Chapter 527, RSMo 1959, V.A.M.S., with a prayer that the ordinance be declared unconstitutional and void and that the defendant be enjoined from enforcing the ordinance. The defendant's amended answer admitted the passage of the ordinance as set out in the exhibit attached to plaintiffs' petition and asserted among other things that the ordinance was constitutional and enacted in the proper exercise of the defendant's police power. The case was heard on plaintiffs' motion for judgment on the pleadings and the defendant's motion to dismiss and, in the alternative, for judgment on the pleadings. The judgment of the trial court rendered on June 20, 1960, overruled the defendant's motion to dismiss and alternative motion for judgment on the pleadings and sustained plaintiffs' motion for judgment on the pleadings and found the ordinance to be unconstitutional and void and not enforceable against the plaintiffs and permanently enjoined the defendant from enforcing the ordinance against the plaintiffs.

The defendant attacks the right of the plaintiffs to maintain the declaratory judgment action. The Declaratory Judgment Act specifically authorizes any person whose rights, status or other legal relations are affected by a municipal ordinance to have the validity of the ordinance determined and, even though the plaintiffs did not assert an intention to violate the ordinance, there was a justiciable controversy because uncertainty and insecurity existed with respect to the rights, status and other legal relations of the parties. Sections 527.020 and 527.120, RSMo 1959, V.A.M.S.; Sta-Whip Sales Co. v. City of St. Louis, Mo., 307 S.W.2d 495, 497-498; City of Nevada v. Welty, 356 Mo. 734, 203 S.W.2d 459, 460; Hudson v. Jones, Mo.App., 278 S.W.2d 799, 804. The trial court did not err in overruling defendant's motion to dismiss plaintiffs' petition.

The ordinance passed on January 15, 1960, is as follows:

'AN ORDINANCE AMENDING CHAPTER 39 OF THE REVISED ORDINANCES OF KANSAS CITY, MISSOURI, 1956, ENTITLED 'OFFENSES GENERALLY AND REGULATION OF CERTAIN BUSINESSES,' BY ENACTING ONE NEW SECTION TO BE ADDED THERETO TO BE KNOWN AS SECTION 39.261.

'BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

'Section A. That Chapter 39 of the Revised Ordinances of Kansas City, Missouri, 1956, entitled 'Offenses Generally and Regulation of Certain Businesses,' is hereby amended by enacting one new section to be added thereto to be known as Section 39.261, said section to read as follows:

'Section 39.261. (a) It shall be unlawful for any owner, operator or manager of any hotel, motel or restaurant in Kansas City,

Page 880

Missouri, which offers lodging or food to the public, or for any agent or employee of such owner or operator to refuse, withhold from or deny to any person, for any reason directly or indirectly relating to the race or color of such person, any of the accommodations, advantages, facilities or services of such hotel, motel or restaurant.

'(b) The terms 'hotel' and 'motel,' as used in this ordinance, shall include every establishment offering lodging to transient guests for compensation, and which is not a bona fide private club, but said terms shall not apply to any such establishment if the majority of occupants therein are permanent residents.

'(c) The term 'restaurant,' as used in this ordinance, shall include every cafe, cafeteria, coffee shop, sandwich shop, snack bar, supper club, soda fountain, soft drink or ice cream parlor, luncheonette, or other similar establishment which offers food for purchase and consumption on the premises, and which is not a bona fide private club, but the term 'restaurant' shall not apply to paverns and bars.

'(d) There is hereby established a fair public accommodations committee, to be composed of three members of the commission on human relations, appointed by the Mayor for terms of one year. The committee shall receive and investigate, with assistance from the staff of the city counselor and the said commission, all complaints of alleged violations of this ordinance. The committee shall endeavor to adjust such complaints by education, persuasion, and conciliation between the parties affected. If these efforts fail to resolve the problem promptly, and no later than thirty days after receiving a complaint, the committee shall refer the complaint to the city counselor for appropriate action.

'(e) Conviction of any violation of the provisions of this ordinance shall be deemed a misdemeanor punishable by a fine of not less than $25 and not more than $200 for each offense.

'(f) This section shall neither add to nor detract from any civil remedies now available to persons subjected to racial discrimination in hotels, motels and restaurants.'

In general the plaintiffs contend that they have no common-law obligation to serve every orderly person who presents himself such as innkeepers have, that they have a constitutional right to serve or reject customers for any reason they may choose, and that the defendant city is without authority to enact a valid ordinance prohibiting their discriminating against customers on account of race or color. Whether restaurateurs are under a common-law obligation to serve all proper persons alike does not seem to have been decided in this state, but there are cases from other states tending to support the plaintiffs' contention. We may assume for the purpose of this case that the common-law obligation of innkeepers does not extend to restaurateurs.

A number of states have adopted statutes designed to secure to all persons equal rights and privileges in places where the public is generally served, accommodated or entertained. In some instances violation of such statutes is made a misdemeanor and others provide a forfeiture to the party aggrieved or give him a right of action to recover damages. 'Laws containing such guaranties are generally known as 'civil rights statutes,' and their validity has been made the subject of frequent attack, based upon the contention that they violate constitutional provisions prohibiting the deprivation of life, liberty, or property without due process of law. Where the question has been raised, however, it has been held that such legislation is a proper exercise of the police power of the state.' 10 Am.Jur., Civil Rights, Sec. 8, p. 902. Under some of these civil rights statutes, restaurants are among the businesses specifically forbidden to discriminate on account of race or color. 10 Am.Jur., Civil Rights, Sec. 21, p. 914.

Page 881

Such statutes are in harmony with the 14th Amendment to the Constitution of the United States, Sec. 1, which provides: 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' Since the decision in 'The Civil Rights Cases', 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, it has generally been held that these provisions of the 14th Amendment are prohibitory as to the states only, that acts of Congress with respect thereto are not operative directly upon private persons in the several states and that states, though not required to do so, may pass laws consistent with and not in violation of the provisions of the 14th Amendment. Unquestionably this state under its police powers has the right to pass civil rights laws of this sort but has not done so. The essential question in this case is how much of the state's police power to regulate businesses and vocations at the local level can be and has been delegated to the defendant city.

Businesses, trades, occupations and vocations carried on within a municipal corporation are subject to reasonable regulation by...

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  • City of Aurora v. Spectra Commc'ns Grp., LLC, No. SC 96276
    • United States
    • United States State Supreme Court of Missouri
    • December 24, 2019
    ...arbitrary, and the privilege created by the law must be available to all entities within the classification."); Marshall v. Kan. City , 355 S.W.2d 877, 884 (Mo. banc 1962) ("[A] law is not special in the constitutional sense if it applies alike to all of a given class provided the classific......
  • Chicago Real Estate Bd. v. City of Chicago, No. 39936
    • United States
    • Illinois Supreme Court
    • January 19, 1967
    ...of Columbia v. John R. Thompson Co., 346 U.S. 100, 116, 117, 73 S.Ct. 1007, 1016, 97 L.Ed. 1480; Marshall v. Kansas City, (Mo., 1962), 355 S.W.2d 877, 93 A.L.R.2d 1012; Porter v. City of Oberlin, 1 Ohio St.2d 143, 205 N.E.2d In District of Columbia v. John R. Thompson Co. the United States ......
  • Sims v. Besaw's Café,
    • United States
    • Court of Appeals of Oregon
    • January 26, 2000
    ...authorized by local ordinance. See, e.g., Yellow Freight Systems v. Mayor's Com'n, 791 S.W.2d 382 (Mo.1990); Marshall v. Kansas City, 355 S.W.2d 877 (Mo.1962) (dictum). Other authorities point in the opposite direction. See, e.g., Trans World Airlines v. City of Philadelphia, 44 Pa.Cmwlth. ......
  • Porter v. City of Oberlin, No. 38734
    • United States
    • United States State Supreme Court of Ohio
    • March 10, 1965
    ...750; Levitt & Sons, Inc., v. Division against Discrimination (1960), 31 N.J. 514, 158 A.2d 177; Marshall v. Kansas City (Mo.1962), 355 S.W.2d 877, 93 A.L.R.2d 1012; District of Columbia v. John R. Thompson Co., Inc. (1953), 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480; Katzenbach v. McClung (......
  • Request a trial to view additional results
36 cases
  • City of Aurora v. Spectra Commc'ns Grp., LLC, No. SC 96276
    • United States
    • United States State Supreme Court of Missouri
    • December 24, 2019
    ...arbitrary, and the privilege created by the law must be available to all entities within the classification."); Marshall v. Kan. City , 355 S.W.2d 877, 884 (Mo. banc 1962) ("[A] law is not special in the constitutional sense if it applies alike to all of a given class provided the classific......
  • Chicago Real Estate Bd. v. City of Chicago, No. 39936
    • United States
    • Illinois Supreme Court
    • January 19, 1967
    ...of Columbia v. John R. Thompson Co., 346 U.S. 100, 116, 117, 73 S.Ct. 1007, 1016, 97 L.Ed. 1480; Marshall v. Kansas City, (Mo., 1962), 355 S.W.2d 877, 93 A.L.R.2d 1012; Porter v. City of Oberlin, 1 Ohio St.2d 143, 205 N.E.2d In District of Columbia v. John R. Thompson Co. the United States ......
  • Sims v. Besaw's Café,
    • United States
    • Court of Appeals of Oregon
    • January 26, 2000
    ...authorized by local ordinance. See, e.g., Yellow Freight Systems v. Mayor's Com'n, 791 S.W.2d 382 (Mo.1990); Marshall v. Kansas City, 355 S.W.2d 877 (Mo.1962) (dictum). Other authorities point in the opposite direction. See, e.g., Trans World Airlines v. City of Philadelphia, 44 Pa.Cmwlth. ......
  • Porter v. City of Oberlin, No. 38734
    • United States
    • United States State Supreme Court of Ohio
    • March 10, 1965
    ...750; Levitt & Sons, Inc., v. Division against Discrimination (1960), 31 N.J. 514, 158 A.2d 177; Marshall v. Kansas City (Mo.1962), 355 S.W.2d 877, 93 A.L.R.2d 1012; District of Columbia v. John R. Thompson Co., Inc. (1953), 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480; Katzenbach v. McClung (......
  • Request a trial to view additional results

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