Mosher v. Beirne, No. 64 C 186(1).

CourtU.S. District Court — Eastern District of Missouri
Writing for the CourtWyne & Delworth, Clayton, Mo., for defendant
Citation237 F. Supp. 684
PartiesGregory C. MOSHER, Plaintiff, v. John T. BEIRNE, Defendant.
Docket NumberNo. 64 C 186(1).
Decision Date30 December 1964

237 F. Supp. 684

Gregory C. MOSHER, Plaintiff,
v.
John T. BEIRNE, Defendant.

No. 64 C 186(1).

United States District Court E. D. Missouri, E. D.

December 30, 1964.


237 F. Supp. 685

Richard M. Stout, St. Louis, Mo., for plaintiff.

Wyne & Delworth, Clayton, Mo., for defendant.

HARPER, Chief Judge.

Plaintiff alleges a cause of action arising under 42 U.S.C.A. § 1983 and jurisdiction of this court pursuant to 28 U.S. C.A. § 1343. The case is now under submission on defendant's motion for a summary judgment. The defendant is mayor of the City of Creve Coeur, a Missouri municipality.

Plaintiff sought to operate a teenager's club called the Two Plus Two Club, furnishing music and dancing for a fee, at the "Creve Coeur Country Club," situated within the corporate limits of Creve Coeur. Plaintiff operated his club on April 24, 1964, but when he sought to open for business again on May 1, 1964, the Captain of the City of Creve Coeur Police Force ordered the premises locked, stating he would arrest anyone using the premises, and that he was acting under the express orders of the defendant.

Plaintiff did not open for business and contends that as a result of such restraint upon him he has been deprived of rights guaranteed him by the Constitution and laws of the United States of America without due process of law pursuant to the Fourteenth Amendment, namely his right of freedom of peaceable assembly guaranteed him by the First Amendment; his lawful right to engage in business and to make a profit from his business and the benefit of his lawful contracts; his right to peaceable possession of property under a lawful contract for such possession; his right to equal protection of the laws, in that defendant, acting under color of his authority as Mayor, acted arbitrarily and without reasonable classification or standards as to who could or could not use the premises for business; and lastly, the right to have patrons who do not reside in Creve Coeur come to him to transact business with him.

Plaintiff prays for $2,500.00 actual damages, $10,000.00 as the reasonable value of future lost profits, and $50,000.00 punitive damages because "the actions of defendant herein complained of were done wilfully, wantonly and maliciously and with a deliberate and intentional disregard of plaintiff's rights, and with a deliberate intent of depriving plaintiff of rights guaranteed to him by the Constitution of the United States of America."

The affidavits, deposition, and exhibits filed, establish that Creve Coeur is incorporated as a fourth class city and is governed by a Board of Aldermen, consisting of four persons. The Board meets twice monthly, at which time it

237 F. Supp. 686
discusses and votes on city matters. The meetings are conducted by the mayor, but he votes only in case of a tie

Section 79.110, Revised Statutes of Missouri 1949, V.A.M.S., sets out the duties of the mayor and board of aldermen and vests them with "the care, management and control of the city and its finances, and (they) shall have power to enact and ordain any and all ordinances not repugnant to the constitution and laws of this state, and such as they deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be deemed necessary to carry such powers into effect, and to alter, modify or repeal the same."

Section 79.120 provides that the mayor shall "exercise a general supervision over all the officers and affairs of the city, and shall take care that the ordinances of the city, and the state laws relating to such city, are complied with."

Section 79.200 states that "the mayor shall be active and vigilant in enforcing all laws and ordinances for the government of the city * * *."

Pursuant to these powers and those further set out in Section 79.420 RSMo, V.A.M.S., the Board of Aldermen enacted Ordinance No. 370, it being a...

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13 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
    ...13 L.Ed.2d 341 (1964); Brown v. Board 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. 17......
  • Peoples Cab Co. v. Bloom, Civ. A. No. 70-1402.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 19, 1971
    ...State of West Virginia, 156 F.2d 739 (4th Cir. 1946); Male v. Crossroads Associates, 320 F. Supp. 141 (S.D.N.Y.1970); Mosher v. Beirne, 237 F.Supp. 684 14 Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944), state officials refused to file a correct election certificate as requ......
  • Teleprompter of Erie, Inc. v. City of Erie, Civ. A. No. 81-17 ERIE.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 13, 1983
    ...of council to accept a bribe or otherwise to act on his own to violate the plaintiff's civil rights. ETI relies upon Mosher v. Beirne, 237 F.Supp. 684 (E.D.Mo.1964), where the court held that where authority is lacking to deprive another of his guaranteed rights then there is no color of la......
  • Hall v. Wooten, No. 73-2078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 19, 1974
    ...174 (E.D.Tenn.1968), Krum v. Sheppard, 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. Shepp......
  • Request a trial to view additional results
13 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
    ...13 L.Ed.2d 341 (1964); Brown v. Board 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. 17......
  • Peoples Cab Co. v. Bloom, Civ. A. No. 70-1402.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 19, 1971
    ...State of West Virginia, 156 F.2d 739 (4th Cir. 1946); Male v. Crossroads Associates, 320 F. Supp. 141 (S.D.N.Y.1970); Mosher v. Beirne, 237 F.Supp. 684 14 Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944), state officials refused to file a correct election certificate as requ......
  • Teleprompter of Erie, Inc. v. City of Erie, Civ. A. No. 81-17 ERIE.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 13, 1983
    ...of council to accept a bribe or otherwise to act on his own to violate the plaintiff's civil rights. ETI relies upon Mosher v. Beirne, 237 F.Supp. 684 (E.D.Mo.1964), where the court held that where authority is lacking to deprive another of his guaranteed rights then there is no color of la......
  • Hall v. Wooten, No. 73-2078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 19, 1974
    ...174 (E.D.Tenn.1968), Krum v. Sheppard, 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. Shepp......
  • Request a trial to view additional results

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