State ex rel. Burnau v. Valley Park Fire Protection Dist. of St. Louis County

• Decision Date: 23 February 1972
• Docket Number: No. 34326,34326
• Citation: 477 S.W.2d 734
• Parties: STATE ex rel. Leo P. BURNAU, Jr., and Harvey Leroy Luck, Plaintiffs-Appellants, v. VALLEY PARK FIRE PROTECTION DISTRICT OF ST. LOUIS COUNTY, Defendant-Respondent. . Louis District
• Court: Missouri Court of Appeals

Page 734

477 S.W.2d 734

STATE ex rel. Leo P. BURNAU, Jr., and Harvey Leroy Luck Plaintiffs-Appellants, v. VALLEY PARK FIRE PROTECTION DISTRICT OF ST. LOUIS COUNTY Defendant-Respondent.

No. 34326.

Missouri Court of Appeals, St. Louis District.

Feb. 23, 1972.

Hanks & Bornschein, Claude Hanks, Clayton, for plaintiffs-appellants.

Paul Taub, St. Louis, for defendant-respondent.

DOERNER, Commissioner.

On complaint of the District that plaintiffs had violated its ordinance prohibiting the sale of fireworks within its boundaries, plaintiffs were arrested by the county police and were told the arrests would continue if they persisted in the operation of their business of selling fireworks. Plaintiffs thereupon filed this action asking, in Count I, that the defendant District be restrained and enjoined from interfering with the display and sale of their fireworks, and in Count II for damages they claimed to have sustained during the four day suspension of the operation of their business. Plaintiffs were granted a restraining order by one judge, a temporary injunction by another, but after the hearing on a permanent injunction the third rendered a judgment dismissing plaintiffs' petition, declaring the District's ordinance valid, and enjoining plaintiffs from violating the ordinance, as defendant had prayed. Plaintiffs appealed to the Supreme Court, which held that it lacked jurisdiction and, on defendant's motion, transferred the case to this court.

The primary question for our determination is whether the ordinance of the defendant District, which prohibits the sale of all fireworks within the boundaries of the District, is in conflict with Section 320.120, subd. 1, RSMo 1969, V.A.M.S. The pertinent part of that statute provides:

'1. The sale, use, manufacture, and possession of the following classes of fireworks is hereby approved within the state of Missouri, * * *: all fireworks that are now or may hereafter be classified as 'Common Fireworks' by the Interstate Commerce Commission, and are labeled with the Interstate Commerce Commission Class C label may be sold in this state as provided in sections 320.110 to 320.190.'

It was undisputed that all of the fireworks offered for sale and sold by the plaintiffs were Class C fireworks. In addition to the foregoing statute plaintiffs also based their right to sell such fireworks on a permit to do so issued to them by the Village of Peerless Park. The Village lies within the boundaries of the defendant District.

The District cites Section 321.220 as granting it the power and authority to prohibit the display and sale of all fireworks within the boundaries of the District, including Class C fireworks. The pertinent part of that section upon which the District relies provides:

'For the purpose of providing fire protection to the property within the district, the district and, on its behalf, the board shall have the following powers, authority and privileges:

'(12) To adopt and amend bylaws, fire protection and fire prevention ordinances, and any other rules and regulations not in conflict with the constitution and laws of this state, * * *.'

As to the permit issued to plaintiffs by the Village of Peerless Park the District maintains that the Village had no legislative authority to adopt its ordinance permitting the sale of fireworks, and that even if it did have the ordinance of the Village was superseded by the prohibitory ordinance of the District. If the defendant District's ordinance is in conflict with Section 320.120 then, of course, we need not concern ourselves with the validity of the ordinance of the Village. For it has long been held by our appellate courts that an ordinance which is inconsistent with a state law upon the subject is void. State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030; Ex parte Packman, 317 Mo. 732, 296 S.W. 366; Brotherhood of Stationary Engineers v. City of St. Louis, Mo.App., 212 S.W.2d 454. That principle of law was recognized by the legislature in the same portion of Section 321.220(12) upon which the defendant District relies as its authority for the enactment of its ordinance. For it will be noted that while that portion of the section authorizes and empowers a fire protection district to adopt fire protection and fire prevention ordinances, the General Assembly expressly limited the enactment of such ordinances to those which are not '* * * in conflict with the * * * laws of this state, * * *.'

We recognize that the mere fact that the legislature has enacted a general law on a subject does not necessarily mean that a municipality or other authority may not adopt an ordinance touching upon the same subject. For an ordinance which supplements and is in harmony with a state law is valid. Thus in Vest v. Kansas City, 335 Mo. 1, 194 S.W.2d 38, the state law required a licensed barber to undergo a physical examination by the health authorities at least once a year. The City enacted an ordinance requiring such a barber to undergo an examination at least once every six months. It was held that the ordinance supplemented the statute and was not in conflict with it, and was therefore valid. The same principle was applied in A B C Liquidators, Inc. v. Kansas City, Mo., 322 S.W.2d 876, cited by defendant. There a statute prohibited...