State ex rel. Russell v. Beattie

• Decision Date: 24 June 1884
• Citation: 16 Mo.App. 131
• Parties: STATE OF MISSOURI EX REL. W. J. RUSSELL, Respondent, v. JOHN BEATTIE, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 131

STATE OF MISSOURI EX REL. W. J. RUSSELL, Respondent,

v.JOHN BEATTIE, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 24, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and judgment.

HENRY HITCHCOCK, for the appellant.

JOHNSON, LODGE & JOHNSON and E. J. O'BRIEN, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The case on behalf of the appellant has been ably presented, but we have not had the benefit of any argument or brief on behalf of the respondent. We have, nevertheless to decide as best we can, a question involving very considerable public interest.

The defendant was, at the time when this suit was prosecuted in the circuit court, the commissioner of public buildings of the city of St. Louis. In virtue of his office it was, under an ordinance of the city, his duty to grant permits for the erection of private buildings within the city. The plaintiff made an application to the defendant for a permit to erect a building in a certain block in the city, to be used as a livery stable. The defendant refused to issue such permit, and justified his refusal under the following ordinance:--

“An ordinance regulating the location of livery, boarding and sale stables.

Be it ordained by the Municipal Assembly of the city of St. Louis, as follows:

Section 1. Hereafter no livery, boarding, or sales stables shall be located on any block of ground in St. Louis without the written consent of the owners of one-half the ground of said block.

Sect. 2. No permit shall hereafter be granted by the commissioner of public buildings for the erection of any livery, boarding, or sales stables until the foregoing provision is complied with, and the written consent aforesaid is filed in said office.

Sect. 3. Any person maintaining a livery, boarding, or sales stable contrary to section one of this ordinance shall be guilty of a misdemeanor, and shall be fined not less than ten dollars nor more than two hundred dollars for each offence, and each day said stable is maintained as aforesaid shall constitute a separate offence.

Sect. 4. There being no ordinance upon the subject-matter of this ordinance, it is deemed that an emergency exists, and hence this ordinance shall take full effect from and after its passage.

Approved Nov. 22, 1882.”

The plaintiff thereupon instituted the present proceeding in the circuit court for a mandamus to compel the defendant to issue such permit. At the hearing in the circuit court a peremptory mandamus was awarded, and the defendant has appealed.

The only question which arises upon this record is whether this ordinance is a valid exercise of the powers conferred upon the city of St. Louis by its charter.

The validity of the ordinance is asserted by the defendant under three separate grants of power in the charter: 1. The power to regulate livery and sales stables. 2. The power to declare and prevent nuisances on public or private property, and the causes thereof. 3. The power conferred by what is known as the “general welfare clause” of the charter. Charter of St. Louis, art. III, sect. 26, sub-sects. 5, 6, and 14.

I. The first of these powers is conferred by section 26 of the charter in the following language: “The mayor and assembly shall have power within the city, by ordinance not inconsistent with the constitution or any law of this state, or of this charter. * * Fifth. To license, tax and regulate lawyers, doctors and doctresses, undertakers, dentists, auctioneers, grocers, merchants, retailers, hotels, boarding-houses, tenement-houses, office buildings, public buildings, public halls, public grounds, concerts, photographists, artists, agents, porters, runners, drummers, public lecturers, public meetings and shows, real estate agents and brokers, financial agents and brokers, horse and cattle dealers, patent right dealers, inspectors and gaugers, stock yard proprietors, examiners of titles, conveyancers, mercantile agents, insurance companies, and insurance agents, bankers, banking or other corporations or institutions, telegraph companies or corporations, street railroad cars, livery and sale stables hackney carriages, private carriages, barouches, buggies, wagons, omnibuses, carts, drays, and other vehicles, and all other business, trades, avocations, or professions whatever.” 2 Rev. Stats. 1585, 1586.

This grant of power seems to be large enough to confer upon the mayor and municipal assembly the right to determine the place where livery and sales stables shall be located, as well as the manner in which the business of keeping them shall be carried on. A rule of interpretation which would restrict the meaning of the word regulate to the latter sense, would seem to be much too narrow. It has been recently held by the court of appeals of New York that an ordinance giving the power “to regulate the erection, establishment and continuance of slaughter-houses,” confers upon the legislative authorities of the city the right to prescribe the places where the business of slaughtering animals shall alone be carried on. An ordinance restricting the erection of slaughter-houses to a certain portion of the city was held to be not only within this grant of power, but not void as being in restraint of trade; nor would it be presumed that the legislative authority of the city would exert this power in such a manner as absolutely to prohibit the slaughtering of animals within the city. Should this be done, the court reasoned that it would be time to consider the validity of such an ordinance when the question should arise. Cronin v. The People, 82 N. Y. 318. So, an ordinance providing that meat should not be sold except in a particular place within the village limits, was held good, the same not being in restraint of the right of sale, but merely a regulation thereof. Village of Buffalo v. Webster, 10 Wend. 99, 101. So, under a power to “regulate hacks,” etc., it has been held that an ordinance which requires hacks when at railway depots to stand in a place to be designated by the police officer there on duty, is a valid and reasonable exercise of power, the court saying: “That they are regulations of hacks is apparent; and in our opinion they are not unreasonable and oppressive.” St. Paul v. Smith, 27 Minn. 364.

But the decisions of our own supreme court seem to furnish controlling authority upon this question. The vending to the inhabitants of the city of meat, poultry, and vegetables is even more necessary to the subsistence, health, and welfare of such inhabitants than the hiring of horses and vehicles to them for use on errands of business or pleasure; it is certainly a right of as high a character as the latter, and its unrestrained exercise may not be more prejudicial to the public health or comfort. But it was held by our supreme court as early as 1857, that a clause in the charter of the city of St. Louis, giving the mayor and city council the power “to regulate the inspection of butter, lard, and other provisions; to regulate the vending of meat, poultry, and vegetables; to restrain and punish the forestalling of poultry, butter, eggs, and fruit, and to suppress hucksters,” confers upon them power to provide by ordinance that “no person, not being the lessee of a butcher stall, shall sell or offer for sale in market, or in any other place, any fresh meat in less quantities than one quarter.” City of St. Louis v. Jackson, 25 Mo. 37. Such an ordinance, it has been held, is not in restraint of trade, but is both politic and proper. In giving the opinion of the court, Ryland, J., said: “This ordinance is not against any known law of our state, nor does it interfere with the right of selling the commodities of our citizens; it requires that the person retailing fresh meat shall have a stall in some market for that purpose. The city undergoes heavy expense in erecting commodious and convenient market-houses; it rents the stalls of those houses to butchers and others retailing fresh meats; the rents are of importance by way of income to the city. Now, to permit any one who may think proper to put up a block or shanty on any street or alley for the purpose of selling fresh meats in quantity less than a quarter, and thereby withdraw the purchasers from the market-houses, is at once giving to such retailers a very great advantage over those who rent the stalls and pay a high price for them.” Ibid. 41.

This decision was reaffirmed in City of St. Louis v. Weber (44 Mo. 547), under a charter provision somewhat different in phraseology but similar in substance, and the authority of contrary decisions in other states. St. Paul v. Laidlow (2 Minn. 190), and Bethune v. Hughes (28 Ga. 560), was distinctly denied. Judge Bliss, in closing his opinion, said: “The power thus to regulate is not only sustained by Jackson v. The City of St. Louis, but by many authorities in other states. Ash v. The People, 11 Mich. 347; Davenport v. Kelley, 7 Iowa, 102; Bush v. Seabury, 8 Johns. 418; Buffalo v. Webster, 10 Wend. 99.”

The power to regulate in cities the carrying on of trades which are necessary to the welfare of the inhabitants of such cities, and which must hence be carried on somewhere within the limits of such cities, but which trades, unless carried on in particular places, or in one place, where the manner of carrying them on can be made the subject of a practical system of public inspection, by prescribing the place or places in which alone such trades should be carried on, does not infringe any right guaranteed by the constitution and laws of this state, or by the constitution of the United States. The power thus to regulate is a part of that necessarily extensive and undefined power which resides in every government, called the police power. “Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, building with combustible materials, and the burying of the dead, may well,”...