Mosher v. Beirne, No. 17963.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN OOSTERHOUT and MEHAFFY, Circuit , and MEREDITH
Citation357 F.2d 638
PartiesGregory C. MOSHER, Appellant, v. John T. BEIRNE, Appellee.
Docket NumberNo. 17963.
Decision Date24 March 1966

357 F.2d 638 (1966)

Gregory C. MOSHER, Appellant,
v.
John T. BEIRNE, Appellee.

No. 17963.

United States Court of Appeals Eighth Circuit.

March 24, 1966.


357 F.2d 639

Richard M. Stout, St. Louis, Mo., made argument for appellant and filed brief with William H. Crandall, Jr., St. Louis, Mo.

Edward J. Delworth, Jr., Clayton, Mo., made argument for appellee and filed brief with William H. Wyne, Jr., Clayton, Mo.

Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and MEREDITH, District Judge.

MEHAFFY, Circuit Judge.

Plaintiff, Gregory C. Mosher, brought this civil rights action under 42 U.S.C.A. § 1983, seeking actual and punitive damages against defendant, John T. Beirne, who was Mayor of the incorporated City of Creve Coeur, Missouri.1

Jurisdiction was invoked under 28 U.S. C.A. § 1343. The District Court in an opinion published at 237 F.Supp. 684 sustained defendant's motion for summary judgment based on the pleadings, affidavits, depositions and exhibits before it. We affirm.

The facts are fully stated in Judge Harper's opinion but we summarize those pertinent for this opinion.

Plaintiff sought to operate a teenagers' club called "Two Plus Two Club" in the Creve Coeur Country Club building within the corporate limits of the City of Creve Coeur, Missouri. In fact, the club was operated on the night of April 24, 1964 which was prior to an application for a license. Plaintiff defined his business as "providing facilities,

357 F.2d 640
music and entertainment for plaintiff's patrons for a fee." After the unlicensed opening plaintiff, on April 27, appeared before the City Board of Aldermen seeking a license. The Board of Aldermen voted unanimously to refuse the application and so notified plaintiff on April 29 on city letterhead signed by defendant

Despite rejection of his application for license, plaintiff contemplated operating his business on May 1. However, he was notified by city police that arrests would be made if the club was opened. The officers stated they were acting upon orders of the Mayor, who, under Missouri statute, is required to "be active and vigilant in enforcing all laws and ordinances for the government of the city * * *."2

The Creve Coeur Country Club is located in a zoned area limiting the operations therein to certain designated types of commercial businesses as well as the operation of private clubs "excepting those the chief activity of which is a service customarily carried on as a business." Zoning Ordinance 225 enacted in 1959, Article II, Section 2.1z, defines a private club as follows:

"A building and area used for social purposes only, including the serving of food and refreshments, whose normal use is limited to members of the club and their guests, and which club does not provide a service customarily carried on as a business."

An additional ordinance fixes the annual fee for "country clubs or private clubs" at $50.00. The Creve Coeur Country Club was licensed under this ordinance.

The District Court based its opinion on two grounds: (1) that the city acted upon ordinances, the validity of which is not challenged, and which do not deprive plaintiff of due process of law; and (2) that because defendant had no power to grant or withhold plaintiff's license, his complained of action was not under "color of law."

On the "color of law" issue, the District Court concluded that defendant as mayor did not have power to grant or withhold licenses, as such action was outside his authority. In his brief, however, plaintiff only complains that defendant's action in "padlocking" his business was arbitrary. In any event, we see no necessity in reaching the "color of law" issue in the absence of either of the requisite elements necessary for recovery under the Civil Rights Act. They are (1) that defendant was acting under "color of law" and (2) that defendant's conduct subjected complainant to deprivation of rights, privileges or immunities secured to him by the Constitution and laws of the United States. Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965); Stiltner v. Rhay, 322 F.2d 314 (9th Cir. 1963); Marshall v. Sawyer, 301 F.2d 639, 646 (9th Cir. 1962); Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963).

Plaintiff does not challenge either the validity of the zoning ordinance or the licensing ordinance, and he has not demonstrated that he has been deprived of any constitutional or statutory right. It may be that the operation of a teenagers' dance hall business at some other location would be lawful, but plaintiff cannot operate such a business in a location within...

To continue reading

Request your trial
14 practice notes
  • Javits v. Stevens, No. 73 Civ. 5339-LFM.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 24, 1974
    ...of Trustees of La Grange Independent School Dist., 187 F.2d 20 (5th Cir. 1951); Mosher v. Beirne, 237 F.Supp. 684 (E.D.Mo. 1964), aff'd, 357 F.2d 638 (8th Cir. 1966). See also, Denman v. Wertz, 372 F.2d 135 (3d Cir. 1967); Tyree v. Smith, 289 F.Supp. 174 4 We note, also, as to the relatives......
  • Hall v. Wooten, No. 73-2078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 19, 1974
    ...255 F.Supp. 994 (W.D.Mich.1966), aff'd, 407 F.2d 490 (6th Cir. 1967), and Mosher v. Beirne, 237 F.Supp. 684 (E.D.Mo.1964), aff'd, 357 F.2d 638 (8th Cir. None of these cases compels the conclusion of the district court. Madison v. Wood and Krum v. Sheppard, insofar as they are relevant, hold......
  • TRUMBULL DIV., OWENS-CORNING v. City of Minneapolis, No. 4-73-Civ. 342.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • February 14, 1978
    ...rehearing denied, 420 U.S. 939, 95 S.Ct. 1150, 43 L.Ed.2d 416 (1975); Wallach v. Pagedale, 376 F.2d 671 (8th Cir. 1967); Mosher v. Beirne, 357 F.2d 638 (8th Cir. 1966); Page v. Jackson, 398 F.Supp. 263 (N.D.Ga.1975); Manos v. Green Bay, 372 F.Supp. 40 (E.D.Wis.1974); Oberhelman v. Schultze,......
  • Brosten v. Scheeler, No. 73 C 592.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • June 11, 1973
    ...deny anyone equal protection of the law. Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018 (1904); Mosher v. Beirne, 357 F.2d 638 (8th Cir. 1966). A local government exercise of its police power in withholding permission to carry on a trade or business which fails to f......
  • Request a trial to view additional results
14 cases
  • Javits v. Stevens, No. 73 Civ. 5339-LFM.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 24, 1974
    ...of Trustees of La Grange Independent School Dist., 187 F.2d 20 (5th Cir. 1951); Mosher v. Beirne, 237 F.Supp. 684 (E.D.Mo. 1964), aff'd, 357 F.2d 638 (8th Cir. 1966). See also, Denman v. Wertz, 372 F.2d 135 (3d Cir. 1967); Tyree v. Smith, 289 F.Supp. 174 4 We note, also, as to the relatives......
  • Hall v. Wooten, No. 73-2078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 19, 1974
    ...255 F.Supp. 994 (W.D.Mich.1966), aff'd, 407 F.2d 490 (6th Cir. 1967), and Mosher v. Beirne, 237 F.Supp. 684 (E.D.Mo.1964), aff'd, 357 F.2d 638 (8th Cir. None of these cases compels the conclusion of the district court. Madison v. Wood and Krum v. Sheppard, insofar as they are relevant, hold......
  • TRUMBULL DIV., OWENS-CORNING v. City of Minneapolis, No. 4-73-Civ. 342.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • February 14, 1978
    ...rehearing denied, 420 U.S. 939, 95 S.Ct. 1150, 43 L.Ed.2d 416 (1975); Wallach v. Pagedale, 376 F.2d 671 (8th Cir. 1967); Mosher v. Beirne, 357 F.2d 638 (8th Cir. 1966); Page v. Jackson, 398 F.Supp. 263 (N.D.Ga.1975); Manos v. Green Bay, 372 F.Supp. 40 (E.D.Wis.1974); Oberhelman v. Schultze,......
  • Brosten v. Scheeler, No. 73 C 592.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • June 11, 1973
    ...deny anyone equal protection of the law. Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018 (1904); Mosher v. Beirne, 357 F.2d 638 (8th Cir. 1966). A local government exercise of its police power in withholding permission to carry on a trade or business which fails to f......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT