Star Square Auto Supply Co. v. Gerk

Decision Date09 July 1930
Docket NumberNo. 28091.,28091.
PartiesSTAR SQUARE AUTO SUPPLY COMPANY ET AL. v. JOSEPH A. GERK ET AL., Appellants.
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis. Hon. Anthony F. Ittner, Judge.

REVERSED AND REMANDED (with directions).

Julius T. Muench and Oliver Senti for appellants.

(1) The title to the Motor Vehicle Act contains but one subject, which is clearly expressed. State v. Miller, 45 Mo. 495; State v. Tallo, 308 Mo. 594; State v. Hanson, 234 Mo. 583; State v. Brodnax, 288 Mo. 25. The provisions of Par. (b) of Sec. 25 of the act are germane to, and have a natural connection with, the subject expressed. (2) The provisions of Par. (b) of Sec. 25 of the act operate alike upon all persons within the class to whom they apply. (a) The classification established bears a reasonable relation to the public welfare. (b) The establishment of the class within the purview of these provisions is a reasonable exercise of the police power of the State, which is not violative of Par. 24 of Sec. 53 of Art. IV, or of any other provision, of the Constitution of the State. State v. Whittaker, 160 Mo. 59; State ex rel. v. Gordon, 245 Mo. 12; Ettling v. Hickman, 172 Mo. 257; Wheeler v. Philadelphia, 77 Pa. St. 338. (3) Statutes enacted pursuant to the police power are not violative of Sec. 30, Art. II (due process), of the Missouri Constitution. Komen v. City, 289 S.W. 843. (4) Under plaintiff's evidence, they are engaged in selling unnumbered tires, in violation of the terms of Par. (b) of Sec. 25 of the Motor Vehicle Act. (a) If that provision is valid, plaintiffs are violating the law, regardless of the validity of the remaining portions of Par. (b). (b) Equity will not lend its aid to the commission of a crime. (c) If the portion of Par. (b) of Sec. 25 is valid, equity will not aid the plaintiffs to violate said provision, whether or not the police were authorized in seizing the unnumbered tires on display in their store. Horseshoe Club v. Stewart, 242 Mo. 421. (5) The Interstate Commerce clause of the Federal Constitution does not deprive the states of their right to the reasonable exercise of their police power. Plumley v. Massachusetts, 155 U.S. 461, 39 L. Ed. 223; Patpasco Guano Co. v. Board of Agriculture, 171 U.S. 345, 43 L. Ed. 191; Savage v. Jones, 225 U.S. 501, 56 L. Ed. 1182. (6) The due-process clause of the Federal Constitution does not deprive the states of their legitimate police power. 12 C.J. 1197; Safee v. Buffalo, 204 App. Div. 161 (N.Y.); Central Lumber Co. v. South Dakota, 226 U.S. 157, 57 L. Ed. 164; Patsone v. Pennsylvania, 232 U.S. 138, 58 L. Ed. 539; Blind v. Brockman, 12 S.W. (2d) 742. (7) Statutes making illegal the possession or sale of automobiles with the motor numbers defaced are a legitimate exercise of the police power, and do not violate the constitutional guaranties. People v. Fernow, 286 Ill. 627; People v. Johnson, 288 Ill. 442; People v. Billardello, 319 Ill. 124; State v. Randolph, 192 Iowa, 36; Osborne v. State, 168 Ark. 396. Similar statutes relating to automobile tires are likewise a lawful exercise of the police power. Hall v. State, 171 Ark. 787.

A.B. Frey and Max Sigoloff for respondents.

(1) The title to the Motor Vehicle Act of 1921 is nowhere clearly expressed, nor does it express at all, the subject-matter contained in Section 25 (b) with respect to automobile tires. In all other respects the title to the act particularizes in minute detail. The only pertinent portion of the title to the Motor Vehicle Law reads: "Defining offenses relating to the ... ownership, sale, use and theft of motor vehicles." There is no reference whatever to motor vehicle tires. Notwithstanding this obvious omission from the title, Section 25 (b) of the act provides that: "No person shall sell or offer for sale or shall own or have the custody or possession of a ... motor vehicle tire on which the original or manufacturer's number or other distinguishing number has been destroyed, removed, covered, altered or defaced," etc. The business of manufacturing and selling automobile tires is distinct and separate from that of manufacturing or selling automobiles. Motor vehicle manufacturers buy their tires from tire manufacturers. Sec. 28, Art. 4, Mo. Constitution; State v. Sloan, 258 Mo. 305; State v. Rawlings, 232 Mo. 544; State ex rel. v. Revelle, 257 Mo. 529; Southard v. Short, 8 S.W. (2d) 903; State v. Crites, 277 Mo. 194. (2) Section 25, respecting tires, violates Sec. 53, Art. IV, Missouri Constitution. Section 53 of Article IV of the Constitution, read in connection with Par. (24), provides, inter alia, that the "General Assembly shall not pass any local or special law regulating ... trade or manufacturing." Section 25 (b) of the Motor Vehicle Law violates said section in that it is a special law applicable to motor vehicle tires and does not require other motor vehicle parts of the same class, such as motor vehicle wheels, rims, horns, motometers, bumpers or other accessories of the same class to be numbered. Such other parts of a motor vehicle are just as much a part of an automobile and are manufactured, bought and sold as separate products just as largely as are automobile tires, and are as readily removed and stolen as are automobile tires. There is, therefore, no proper basis for this classification. State ex rel. v. Railroad, 246 Mo. 514; Springfield v. Smith, 19 S.W. (2d) 2; State v. Mikisicik, 225 Mo. 561; Mobler v. Whisman, 243 Mo. 571; State ex rel. v. Revelle, 257 Mo. 529; State v. Boettling, 261 Mo. 300; Wooley v. Mears, 226 Mo. 41; State ex rel. v. Wilson, 288 Mo. 315; 12 C.J. 1196, sec. 960; Power Mfg. Co. v. Saunders, 71 L. Ed. 1165. (3) Section 25, Motor Vehicle Law, further violates Section 11, Article II, and Section 30 of Article II, Missouri Constitution, and Article XIV, United States Constitution. (a) Provision (d) of said Section 25 makes it the duty of every sheriff, constable and police officer having knowledge of a motor vehicle tire, the number of which has been removed or destroyed, and for which no special number has been issued, to immediately take possession of such tire, arrest the supposed owner or custodian and cause prosecution to be begun against him. In this way any citizen may be imprisoned and the property of any business house is subject to be seized by any police officer without a warrant, although an automobile tire is a perfectly legitimate article of commerce. Lowry v. Rainwater, 70 Mo. 152; State v. Owens, 302 Mo. 348. (b) Provision (d) of Section 25 further provides that, if the party arrested is fined and the fine not paid, the court shall proceed to advertise and sell such motor vehicle tire and the proceeds of the sale, after the payment of the fine and costs, shall be paid by the court to the owner. This portion of the law clearly shows that tires without serial numbers are not deemed by the Legislature to be in themselves injurious or harmful to public health or safety or that their sale would be injurious to the public. (e) Provision (b) of Sec. 25 falsely assumes that there is on every automobile tire a manufacturer's number or other original distinguishing number, when the testimony shows that is not true. The evidence does show that there is an original serial number, but that the same is not a distinguishing number. Then, proceeding upon this false assumption. Sec. 25 (b) makes it a crime to have a tire without such a number in one's possession. The Legislature may not assume that as a fact, which is contrary to the truth, then designate such an act a crime, and direct that, based thereon, a citizen's property shall be taken from him without any process of law and the citizen imprisoned. State v. Julow, 129 Mo. 163; Weaver v. Palmer, 270 U.S. 402, 70 L. Ed. 654; St. Louis v. Theater Co., 202 Mo. 699. (4) Section 25 (b) violates Article I, Section 8, of the Constitution of the United States, in that it attempts to regulate commerce among the several states; Section 25 (b) makes no distinction between tires in interstate and intrastate commerce. It designates as criminals every tire manufacturer that ships its tires into Missouri from other states, and every dealer selling the same in the original packages without so-called distinguishing numbers. It opens the door to oppression and ultimate lawlessness. It is vicious both in its conception and application. Jewell Tea Co. v. Carthage, 257 Mo. 383. (5) Section 25 fails to define clearly the act constituting a crime. Before an act which is not malum in se may be validly constituted a crime there must be some reasonable basis that clearly appears for such enactment. More than this, the acts constituting the crime must be clearly defined. There must be a definite standard of guilt. Connally v. General Construction Co., 269 U.S. 385, 70 L. Ed. 322. Tires are shipped into Missouri both with and without serial numbers. No records are kept of the numbers and the same numbers are variously used, hence the numbers can serve no useful purpose to assist in the arrest of thieves. The law in question does not clearly show what is meant by "original" or "manufacturer's" or "distinguishing" numbers. It vests in every police judge and justice of the peace the determination of the facts which shall constitute the crime. United States v. Cohen Gro. Co., 255 U.S. 81, 65 L. Ed. 516. (6) A court of equity will enjoin police officers from arresting a citizen and from seizing his property if repeated arrests are threatened in violation of the Constitution or if irreparable injury will result from such arrests. State ex rel. Chase v. Hall, 297 Mo. 594; Jewell Tea Co. v. Carthage, 257 Mo. 383; Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 13 L.R.A. (N.S.) 932; Truax v. Raich, 239 U.S. 32, 60 L. Ed. 131; Davis, etc., Co. v. Los Angeles, 189 U.S. 207, 47 L. Ed. 778; Dobbins v. Los Angeles, 195 U.S. 223, 49 L. Ed. 169; Philadelphia Co. v. Stimson, 223 U.S. 605, 56...

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