Nickols v. North Kansas City

• Citation: 214 S.W.2d 710,358 Mo. 402
• Decision Date: 08 November 1948
• Docket Number: 40783,40784
• Parties: Gus Nickols et al., Appellants, v. City of North Kansas City et al., Respondents
• Court: United States State Supreme Court of Missouri

214 S.W.2d 710

358 Mo. 402

Gus Nickols et al., Appellants, v. City of North Kansas City et al., Respondents

Nos. 40783, 40784

Supreme Court of Missouri

November 8, 1948

Appeal from Clay Circuit Court; Hon. James S. Rooney Judge.

Affirmed.

Wherritt & Sevier, by Robert F. Sevier, Lyman Field and Clay C. Rogers for appellants.

(1) The trial court erred in refusing to grant the injunctions and in dismissing appellants' petitions because the comprehensive Missouri Liquor Control Act of 1933 superseded and repealed the application of the Sunday Blue Law to the sale of 3.2% beer. The Sunday Blue Law of 1825 as it affects the 3.2% beer involved was repealed by implication because of the later enactment of a comprehensive liquor act. Chap. 32 Art. I, R.S. 1939, Liquor Control Act; Chap. 32, Art. II R.S. 1939, Non-intoxicating Beer; State ex rel. Hewett v. Womach, 196 S.W.2d 809; John Bardenheier Wine & Liquor Co. v. St. Louis, 135 S.W.2d 345; 50 Am. Jur., sec. 556, pp. 559-560; Sec. 459, R.S. 1939. (2) The Sunday Blue Law of 1825 is in conflict with and repugnant to the Liquor Control Act of 1933. This conflict works an implied repeal of the Sunday Blue Law. Secs. 4891, 4892, 4901, 4995, R.S. 1939; State ex rel. Hewett v. Womach, supra; John Bardenheier Wine & Liquor Co. v. St. Louis, supra; State ex rel. Mo. Pac. v. Public Service Comm. of Missouri, 275 Mo. 60, 204 S.W. 395; State ex rel. Boyd v. Rutledge, 13 S.W.2d 1061; State v. Binder, 38 Mo. 450; State v. Mitts, 315 Mo. 1320, 289 S.W. 935; State v. Kessells, 120 Mo.App. 233, 96 S.W. 494. (3) The trial court erred in refusing to grant the injunctions and in dismissing appellants' petitions because the City of North Kansas City has no power to pass an ordinance prohibiting the sale of 3.2% beer, since it must look to the Missouri Liquor Control Act or what power it has and that act only gives it power to regulate the sale of non-intoxicating beer. State ex rel. Hewett v. Womach, 196 S.W.2d 809. (4) Except in the instances of local option by popular vote, sales to minors, near schools, and to drunkards, the city is given no express power of prohibition. Secs. 4935-4942, R.S. 1939; State ex rel. Sheffell v. McCammon, 111 Mo.App. 623, 86 S.W. 510; Secs. 4849, 7169, R.S. 1939. (5) The city has no implied power of prohibition because not only do the express powers of prohibition above enumerated inferentially exclude any further power of prohibition, but also because when a city is specifically given power to merely regulate or license the liquor traffic, the power to prohibit the traffic is impliedly withheld from the city. Sec. 4954, R.S. 1939; State ex rel. Sheffell v. McCammon, supra; State ex rel. Hewett v. Womach, supra; 48 C.J.S., sec. 50, p. 187; 30 Am. Jur., sec. 316, p. 367; sec. 57, p. 289; City of Joplin v. Jacobs, 119 Mo.App. 134, 94 S.W. 210; Sec. 7442, R.S. 1939; St. Louis v. Tielkemeyer, 226 Mo. 130, 125 S.W. 1123; People v. McGraw, 190 Mich. 233, 150 N.W. 836; St. Louis v. Bernard, 294 Mo. 51, 155 S.W. 394; Sec. 7168, R.S. 1939; 37 Words and Phrases, p. 68. (6) The Missouri Legislature comprehensively entered the field of the liquor traffic when it passed the Liquor Control Act of 1933. The state having thus entered the field, and in doing so having set up its own standards of prohibition, a city in these circumstances may not enact any ordinance conflicting with or enlarging or diminishing prohibition standards set up by state law. Point (1), supra, and authorities cited thereunder; Point (5), supra, and authorities cited thereunder; State ex rel. Hewett v. Womach, supra; State ex rel. Sheffell v. McCammon, supra; 38 Am. Jur., sec. 316, p. 367. (7) The trial court erred in refusing to grant the injunctions and in dismissing appellants' petitions because a city cannot abridge the rights of a holder of a previously issued tavern license in regard to the sale of intoxicating liquors. City of Hannibal v. Guyott, 18 Mo. 515; State ex rel. Shaw v. Baker, 32 Mo.App. 98. (8) The trial court erred in refusing to grant the injunctions and in dismissing appellants' petitions because the ordinances are unconstitutional. Art. I, Sec. 2, Constitution of Missouri, 1945; Art. I, Sec. 10, Constitution of Missouri, 1945; State ex rel. Shaw v. Baker, supra; O'Brien v. Ash, 169 Mo. 283, 69 S.W. 8; Poole & Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23; Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628; Kusnetzky v. Security Ins. Co., 313 Mo. 145, 281 S.W. 47; State v. Jones, 306 Mo. 437, 268 S.W. 83; Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119.

Ward A. Dorsey for respondents.

(1) The trial court did not err in refusing to grant the injunctions and in dismissing appellants' petitions because the ordinances enacted by the City of North Kansas City regulating the sale of 3.2% beer by forbidding such sale on Sunday were within the general police power of the City of North Kansas City, and within the power granted to said city by the Missouri Liquor Control Act to regulate and control the sale of non-intoxicating beer and within the power expressly granted to regulate and license certain businesses. Secs. 4954, 7168, 7196, R.S. 1939. (2) The City of North Kansas City has a broad, general police power to enact any and all ordinances for the protection and in furtherance of the peace, comfort, safety, health, morality and general welfare of the inhabitants of the municipality. The express power to regulate and license many businesses and occupations has been given to cities of the fourth class by the Missouri Legislature. Poole & Creber Market Co. v. Breshears, 125 S.W.2d 23, 343 Mo. 1143; City of Springfield v. Smith, 19 S.W.2d 1; City of Tarkio v. Cook, 120 Mo. 1, 25 S.W. 202, 41 Am. St. Rep. 678; Zinn v. Steelville, 351 Mo. 413, 173 S.W.2d 398; Lancaster v. Reed, 207 S.W. 868. (3) The Missouri Liquor Control Act is comprehensive but not all inclusive. It is a standard set as to limits beyond which no licensee may go. It does not attempt to differentiate between rural areas and cities but expressly grants to cities the right to regulate and control the sale of non-intoxicating beer within their city limits and such cities have the power to exact additional requirements as to such sales. Regulation by forbidding sale on Sunday is within power. State ex rel. Hewlett v. Womach, 196 S.W.2d 809; Vest v. Kansas City, 194 S.W.2d 38; City v. Ameln, 235 Mo. 669, 139 S.W. 429; Zinn v. City of Steelville, supra; Village of St. Anthony v. Brandon, 10 Idaho 205, 77 P. 322; Corporation of Minden v. Sieverstein and Dittmer, 36 La. Ann. 912. (4) It is not necessary that an ordinance properly referable to the police power state in its title or in the body of said ordinance that it is based upon the police power. Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628; State v. Cantwell, 179 Mo. 245, 78 S.W. 569. (5) The Sunday Blue Law is not in conflict with nor repugnant to the Missouri Liquor Control Act of 1933. State v. Malone, 238 Mo.App. 939, 192 S.W.2d 68; State v. Haliburton, 194 S.W.2d 206; State v. Humphrey, 194 S.W.2d 545. (6) All efforts must be made to construe the Missouri Liquor Control Act so as to be consistent with Sec. 4742, Revised Statutes of Missouri, 1939. State ex rel. Boyd v. Rutledge, 13 S.W.2d 1061. (7) The ordinances in question are valid and constitutional as a proper exercise of the powers granted cities of the fourth class by the Liquor Control Act and the police power statute. Bellerive Inv. Co. v. Kansas City, supra; Zinn v. City of Steelville, supra. (8) The ordinances, enforcement of which is sought to be restrained by appellants' petitions, are presumed to be reasonable. In the absence of evidence to the contrary, it is presumed that the law making power of a city has properly considered the public interest and the necessity of extending its police power in enacting ordinances referable to the police power of the city, and the burden is upon one attacking such an ordinance to clearly show its unreasonableness. State ex rel. St. Louis Transfer Co. v. Clifford, 228 Mo. 194, 128 S.W. 775, 21 Ann. Cas. 1218; City of St. Louis v. Cool, 228 Mo. 209, 128 S.W. 759; Hislop v. City of Joplin, 250 Mo. 588, 157 S.W. 625; Ex parte Tarling, 241 S.W. 929; Bellerive Inv. Co. v. Kansas City, supra. (9) The propriety or advisability of passing an ordinance, or the motive of the aldermen so passing the ordinance, is a matter for the law making body or power and cannot be inquired into by the courts. State ex rel. Russell v. Gardner, 218 Mo.App. 217, 265 S.W. 996; State ex rel. Strait v. Brooks, 220 Mo.App. 708, 293 S.W. 471; City of Monett v. Campbell, 204 S.W. 32. (10) A license is not a contract and confers no vested rights in the licensee. All licenses granted by a city are subject to a later exercise of police power by the city during the term of said license. State v. Parker Distilling Co., 236 Mo. 219, 139 S.W. 453; 237 Mo. 103; Gherna v. State, 146 P. 494, 16 Ariz. 344, Ann. Cas. 1916D, 94; Ex parte Deats, 166 P. 913, 22 N.M. 536; Heslep v. State Highway Dept. of S. Car., 171 S.E. 913, 171 S.C. 186.

OPINION

Clark, J.

By stipulation these appeals in two cases are consolidated and submitted on an agreed statement under Section 136 of the Code of Civil Procedure.

Plaintiffs below appeal from judgments of the circuit court refusing to enjoin the enforcement of ordinances of the respondent, a city of the fourth class. Appellants are operators of taverns licensed to sell beer containing more than one-half of one per cent of alcohol by volume and not more than 3.2% by weight. The ordinances make it a misdemeanor, punishable by fine, to sell such beer in the city on Sunday.

We have jurisdiction because a constitutional question has been properly...