State ex rel. Triangle Fuel Co. v. Caulfield

• Decision Date: 08 July 1946
• Docket Number: 39739,39740
• Citation: 196 S.W.2d 296,355 Mo. 330
• Parties: State ex rel. Triangle Fuel Company v. Henry S. Caulfield et al., Appellants. Triangle Fuel Company v. City of St. Louis et al., Appellants
• Court: Missouri Supreme Court

196 S.W.2d 296

355 Mo. 330

State ex rel. Triangle Fuel Company v. Henry S. Caulfield et al., Appellants. Triangle Fuel Company v. City of St. Louis et al., Appellants

Nos. 39739, 39740

Supreme Court of Missouri

July 8, 1946

Rehearing Denied September 9, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Affirmed.

George L. Stemmler, City Counselor, James V. Frank and Albert Miller, Associate City Counselors, for appellants.

(1) Ordinance 41173 as amended by Ordinance 41586 of The City of St. Louis, regulating the producing, importing, storing transporting, hauling, delivering, and distributing of solid fuel and solid fuel products for consumption in The City of St. Louis, is a police measure and is not void as delegating powers to the Commissioner of Smoke Regulation to grant, continue, withhold or revoke a solid fuel permit, without prescribing a standard to govern the commissioner in the use of such powers. Ex parte Williams, 139 S.W.2d 485; Oakley v. Richards, 204 S.W. 505; Ballentine v. Nester, 164 S.W.2d 378, 350 Mo. 58; Lux v. Milwaukee Mechanics' Ins. Co., 15 S.W.2d 346; 12 A.L.R. 1447, 92 A.L.R. 400. (2) It is not necessary that an ordinance prescribe a rule of action: (a) where it deals with a situation which requires the vesting of some discretion in public officials, as where it is difficult or impracticable to lay down a definite, comprehensive rule; or (b) where the discretion relates to the administration of a police regulation and it is necessary to protect the public morals, health, safety and general welfare; or (c) where personal fitness is a factor to be taken into consideration. Ex parte Williams, supra, l.c. 490; State ex rel. v. Hyde, 315 Mo. 681, 286 S.W. l.c. 366; Oakley v. Richards, 275 Mo. 266, 204 S.W. 505; St. Louis v. Fisher, 167 Mo. l.c. 660; Fisher v. St. Louis, 194 U.S. 361, 48 L.Ed. 1018. (3) Every citizen holds his property subject to the valid exercise of the police power, and in the event of a conflict between his individual interests and those of society as a whole, he must subordinate his private rights to a reasonable and proper exercise of the police power for the promotion and furtherance of what is conceived to be the general welfare. Nemours v. City of Clayton, 175 S.W.2d l.c. 65; State v. Smith, 223 Mo. 242; State ex rel. v. Murphy, 130 Mo. 10, 170 S.W. 78; Westport v. Mulholland, 159 Mo. 86; 6 R.C.L., p. 194, sec. 192; St. Louis v. Fisher, 167 Mo. l.c. 660; Fisher v. St. Louis, 194 U.S. 361, 48 L.Ed. 1018. (4) Every intendment is to be indulged in favor of the validity of an ordinance within the general powers of a city to adopt. Bellerieve Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628; State ex rel. Kennedy v. Remmers, 101 S.W.2d l.c. 73; Yee Gee v. City and County of San Francisco, 235 F. 757; Koos v. Saunders, 349 Ill. 142, 182 N.E. 415; Kay v. Chicago, 263 Ill. 122, 104 N.E. 1104; Condon v. Forest Park, 278 Ill. 218, 115 N.E. 827; Seattle v. Ford, 144 Wash. 107, 257 P. 243; Willison v. Cooke, 54 Colo. 320, 130 P. 828; Ex parte Whitwell, 98 Cal. 78, 32 P. 870. (5) An ordinance passed in the exercise of legal authority will not be declared void on the ground of unreasonableness, unless no difference of opinion can exist upon the question, and a clear case must be made to authorize the court to interfere on that ground. Wagner v. St. Louis, 224 S.W. 413, 284 Mo. 410; Ex parte Lockhart, 171 S.W.2d 660, 350 Mo. 1220. (6) Courts will not interfere with an administrative agency in the performance of duties conferred upon the agency by law. Hughes v. State Board, 137 S.W.2d 523, 345 Mo. 995; State ex rel. v. Flynn, 236 Mo.App. 577, 159 S.W.2d 379; State ex rel. v. Board of Education, 171 S.W.2d 75.

Dubinsky & Duggan and Benjamin B. Tepper for respondent.

(1) The portion of Ordinance 41173 as amended by Ordinance 41586 of the City of St. Louis which gives power to the Board of Public Service to deny a permit according to the concept of the Smoke Commissioner or its own as to when consonant with the "public welfare" is unconstitutional and void for the reason that it prescribes no uniform rule of action to guide the Commissioner of Smoke Regulation or Board of Public Service in determining what is consistent with the public welfare. Merchants Exchange v. Knott, 212 Mo. 616, 111 S.W. 565; St. Louis v. Polar Wave Ice & Fuel Co., 317 Mo. 907, 296 S.W. 993, 12 A.L.R. Anno. 1436; Yick Wo v. Hopkins, 118 U.S. 358; Hays v. City of Poplar Bluff, 263 Mo. 516, 173 S.W. 676; Lux v. Milwaukee Mechanics Ins. Co., 322 Mo. 342, 15 S.W.2d 343; Mett v. City of Schenectady, N.Y., 283 N.Y.S. 9; State v. Mott, 61 Md. 297; Ex parte Cavanaugh, 313 Mo. 375, 280 S.W. 51. (2) The power to regulate does not confer power to prohibit a lawful business, and such prohibition is violative of the due process of law, as guaranteed by the State and Federal Constitutions. Dawson v. Lill, 35 S.W.2d 943; Ex parte Davison, 321 Mo. 370, 13 S.W.2d 40; Merchants' Exchange v. Knott, 212 Mo. 616, 111 S.W. 565; May Coal & Grain Co. v. Kansas City, 10 F.Supp. 792.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

These are consolidated appeals and present a question as to the constitutional validity of a portion of a St. Louis ordinance. Case No. 39,739 is in mandamus and No 39,740 is an injunction suit. The defendants in the mandamus case are members of the board of public service. The defendants in the injunction suit are the city, the chief of police and members of the police board.

The ordinance involved amended ordinance No. 41173, pertaining to coal dealers, and is ordinance No. 41586. The Triangle Fuel Company, plaintiff (respondent), is a coal dealer in St. Louis. Its permit as such dealer had been issued from year to year for serveral years. Its application for permit from April 1, 1945, to March 31, 1946, was refused and these suits were commenced. The ordinance, upon which refusal was based, was held unconstitutional, and in the mandamus case the trial court directed the board of public service to issue the permit. In the injunction suit the court held that plaintiff was entitled to the permit and enjoined the defendants from molesting or arresting plaintiff's employees for carrying on its business of coal dealer. Defendants in each case appealed.

The challenged portion of the ordinance provides that "when said (smoke) commissioner shall have found the issuance or continuance of any permit will not be consistent with the public welfare, he may disapprove any application or revoke such permit with the approval of the board of public service." The permit to plaintiff was denied on the ground that to issue such permit "would not be consistent with the public welfare."

In both cases plaintiff alleged: "The provision (of the ordinance) giving power to the board of public service to deny a permit according to the concept of the smoke commissioner or its own as to when consonant with the 'public welfare' is unconstitutional and void because the said section is vague, uncertain and sets up no standards and makes the issuance of a permit dependent upon the caprice and individual impulses of the smoke commissioner and members of the board of public service without guide or limitation other than the individual opinion of the various persons as to what is at a given moment consistent with the public welfare.

"The said ordinance permits the destruction of plaintiff's lawful and well established business duly authorized by the State of Missouri, and licensed in the City of St. Louis at the whim of the commissioner of smoke regulation and the board of public service in permitting their judgment to control the continuation or closure of an established business, thereby taking property without due process in contravention of section 10 of article I of the bill of rights of the new Constitution of the State of Missouri and of Amendment 14 to the federal Constitution. The denial of a permit on the vague and uncertain grounds permitted by the ordinance and given by the board of public service will deprive petitioner of its going value and force a ruinous liquidation of its assets."

Plaintiff contends that the ordinance is unconstitutional and void because it prescribes no uniform rule of action to guide the smoke commissioner or board of public service in determining what is consistent with the public welfare, and that the power to regulate does not confer the power to prohibit, and that the ordinance denies due process. In support of these contentions plaintiff cites: Merchants Exchange et al. v. Knott et al., 212 Mo. 616, 111 S.W. 565; City of St. Louis v. Polar Wave Ice Co., 317 Mo. 907, 296 S.W. 993; Hays v. City of Poplar Bluff et al., 263 Mo. 516, 173 S.W. 676, L.R.A. 1915D, 595; Lux v. Milwaukee Mechanics Ins. Co., 322 Mo. 342, 15 S.W.2d 343; Cavanaugh v. Gerk, 313 Mo. 375, 280 S.W. 51; Davison v. Lill (Mo. App.), 35 S.W.2d 942; Ex Parte Davison, 321 Mo. 370, 13 S.W.2d 40.

On the other hand the city and the other defendants contend that the ordinance is valid. They argue that the ordinance is a police measure, and that it is not necessary for constitutional validity that it prescribe a rule of action (1) where it deals with a situation which requires the vesting of some discretion in public officials, as where it is difficult or impracticable to lay down a definite, comprehensive rule; (2) or where the discretion relates to the administration of a police regulation and it is necessary to protect the public morals, health, safety and general welfare; or (3) where personal fitness is a factor to be taken into consideration. Defendants cite: Ex Parte Williams, 345 Mo. 1121 139 S.W.2d 485; Oakley v. Richards et al., 275 Mo. 266, 204 S.W. 505; Ballentine v....