McClellan v. Kansas City
| Decision Date | 08 June 1964 |
| Docket Number | No. 49816,49816 |
| Citation | 379 S.W.2d 500 |
| Court | Missouri Supreme Court |
| Parties | Ralph McCLELLAN et al., Appellants, v. KANSAS CITY, Missouri, a Municipal Corporation, et al., Respondents. |
Warren S. Earhart, Kansas City, for appellants.
Herbert C. Hoffman, City Counselor, Kansas City, M. E. Benson, L. B. Saunders, Asst. City Counselors, for respondents.
WELBORN, Commissioner.
This is an action challenging the validity, under the federal and state constitutions, of an ordinance of the City of Kansas City, requiring television and radio servicemen to procure a license.
Some time prior to July, 1960, the Council of Kansas City enacted an ordinance on the subject. This ordinance was held unconstitutional by the Jackson County Circuit Court. No appeal was taken from that judgment. Instead, a new ordinance on the subject, No. 25262, was enacted, on July 22, 1960, with an emergency clause, making it effective upon its passage. Ordinance No. 26148, enacted April 28, 1961, and effective ten days after its passage, amended No. 25262. This action attacks such ordinance, as amended.
The preamble of the July 22nd enactment recited:
'WHEREAS, the business of selling radio and television service contracts, and servicing and repairing radio and television receiving apparatus have become the subject of great abuse, with the result that the public has been and is being victimized by irresponsible sales methods, unethical and financially unstable service organizations and inferior installations, maintenance and repairs, * * *.'
The ordinance made unlawful engaging in the business of servicing radio or television receiving apparatus, without a license. It provided for the issuance of licenses to service dealers and certified technicians. A service dealer was defined as a person engaged in the servicing of receiving equipment at an established business location. The holder of such a license was required to be either himself a certified technician or to have in his employment a certified technician in personal charge of all servicing of receiving equipment. A certified technician license issued to a person who passed the examination required of a craftsman for servicing radio or television receiving equipment, or both.
Applicants for certified technician licenses were required to pass an examination, conducted by a board of five members, appointed by the Mayor. The board was required to investigate the training, experience and qualifications and fitness of applicants for licenses. The board was required to prepare examinations which would be 'practical in character and relate to those matters which fairly test the capacity of the applicant to engage in the business, within the scope of the license applied for.' Separate licenses were authorized for servicing both radio and television receiving equipment, servicing television equipment only and servicing radio equipment only. The board was required to conduct the examinations and to certify the names of persons who had passed examinations to the Commissioner of Revenue who issued the licenses upon payment of an annual license fee.
In the July 22nd ordinance, provision was made that any applicant for a technician license who, within 90 days after the effective date of the act, submitted a written statement, verified by two witnesses, showing that the applicant had engaged in servicing the type or types of equipment for the service of which he sought a license for two or more years prior to the ordinance's effective date, should have 50% of the total possible points added to his examination rating. (We understand the 'servicing' under this provision to be experience as a service technician, not as merely a service dealer.) The amendatory ordinance made similar provision as to applicants submitting such data within seven days of its effective date.
The board was authorized by the ordinance, as amended, to 'make and promulgate administrative rules and regulations necessary to make the provisions of this ordinance effective.' The board was also authorized to '(d) Conduct hearings to determine whether or not a licensee has complied with the provisions of this ordinance and with the rules and regulations promulgated thereunder, and shall report its findings and recommendations to the commissioner of revenue as to suspension, revocation or renewal of the license.' The Commissioner of Revenue was authorized to 'suspend or revoke any license issued hereunder in accordance with the provisions of this chapter, on a finding by the board of examiners that the applicant or licensee has violated or is violating any of the provisions of this ordinance, or any of the rules and regulations which may have been promulgated thereunder by the board of examiners, or has practiced fraud upon or misrepresentation to a customer in connection with the servicing of radio or television equipment, and may also refuse to renew a license and may suspend or revoke any license issued hereunder to any partnership, firm or corporation of which any partner, officer, director or manager has violated or is violating any of the provisions of this ordinance, or any of the rules and regulations which may have been promulgated thereunder by the board of examiners.'
The ordinance exempted 'service and installation of (1) industrial machines, (2) mobile equipment, (3) any radio or television equipment used or furnished by a common carrier public utility' and '(4) * * * any service or installation relative to which the State of Missouri or the United States Government assumes jurisdiction.'
Violation of the ordinance was made punishable by a fine of not more than $500, or imprisonment for a period of not to exceed 60 days, or by both such fine and imprisonment.
The April amendment, in addition to the 'grandfather clause' above referred to, increased the board from a five to a sevenmember body and terminated the appointment of the original board members 30 days after the effective date of the ordinance or upon the appointment of new members by the Mayor, whichever first occurred. Other changes are not here material.
This action was instituted as a class action by some thirty individuals engaged in the business affected by the ordinance. It was originally filed in the Jackson County Circuit Court on September 23, 1960. On February 2, 1961, a temporary injunction, restraining enforcement of the ordinance, issued. On August 10, 1961, an amended petition was filed, on which the case was tried. The defendants in the amended petition were the City of Kansas City, the Mayor, the Commissioner of Revenue, the Chief of Police and the seven members of the examining board. The petition alleged that the ordinance as amended was unconstitutional for numerous reasons. We will consider below the objections which have been preserved in this court. After a 2-day hearing at which the court heard evidence concerning the radio and television servicing business and the operation of the ordinance, the trial court, on July 9, 1962, entered its judgment declaring the ordinance valid. After their motion for a new trial had been overruled, the plaintiffs appealed to this court. Because of the constitutional questions involved, we have jurisdiction of the appeal.
As above mentioned, the evidence at the 2-day hearing on the cause related to the conduct of the business affected by the ordinance and the operation of the ordinance. We will not attempt to summarize the evidence, but will refer to such portions of it as might bear on the questions here presented. The trial court found that the evidence showed 'that the repair and servicing of radio and television equipment requires technical knowledge and special skill * * *.' We accept that finding and deem it unnecessary to detail the evidence upon which it was based.
On this appeal, the appellants' objections to the ordinance are based largely upon the due process and equal protection clauses of the federal (Amendment XIV) and state (Sections 2 and 10, Article I) constitutions and the 'special law' prohibition of Section 40 of Article III of the V.A.M.S. Missouri Constitution.
They first assert that the ordinance violates the federal and state due process clauses by requiring licenses for the conduct of their business because the business of servicing television and radio receiving sets 'does not intimately or directly affect the public health, safety, morals or general welfare.'
The Kansas City charter (Article I, Section 1) confers police power upon the City of Kansas City. This court has had numerous occasions to consider the nature and extent of such power. Marshall v. Kansas City, Mo.Sup., 355 S.W.2d 877; Ross v. Kansas City, Mo.Sup., 328 S.W.2d 610; ABC Liquidators, Inc. v. Kansas City, Mo.Sup., 322 S.W.2d 876. We are not here concerned with charter limitations upon the exercise of the power, but with constitutional limitations. Generally speaking, insofar as constitutional limitations based upon due process and equal protection are concerned, the municipal police power is equivalent to state power. 11 Am.Jur., Constitutional Law, Section 256, page 988. In ABC Liquidators, Inc. v. Kansas City, supra, this court stated: 'The police power is such that any trade, calling, or occupation may be reasonably regulated in the interest of the public welfare if the general nature of the business is such that, unless regulated, many persons may be exposed to hazards and misfortunes against which the legislative body can properly protect them.' 322 S.W.2d 883. Protection against fraud is a valid object of regulation under the police power. ABC Liquidators, Inc. v. Kansas City, Mo.Sup., 322 S.W.2d 883(8). The preamble to the ordinance here in question recites that preservation of public safety and prevention of fraud upon the public are matters at which the ordinance is directed. The evidence showed that there is an element of danger involved in incompetent service, particularly of...
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