University City v. Diveley Auto Body Co.

• Decision Date: 12 June 1967
• Docket Number: 52070,Nos. 52069,s. 52069
• Citation: 417 S.W.2d 107
• Parties: UNIVERSITY CITY, Plaintiff-Respondent, v. DIVELEY AUTO BODY COMPANY, Inc., a Corporation, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 107

417 S.W.2d 107

UNIVERSITY CITY, Plaintiff-Respondent, v. DIVELEY AUTO BODY COMPANY, Inc., a Corporation, Defendant-Appellant.

Nos. 52069, 52070.

Supreme Court of Missouri, En Banc.

June 12, 1967.

John J. Morris, City Counselor and John F. Mulligan, Associate City Counselor, University City, for respondent-plaintiff.

Milton Suffian and Joseph S. Rosenthal, St. Louis, for defendant-appellant.

BARRETT, Commissioner.

In separate informations and appeals, consolidated for trial and here, the Diveley Auto Body Company, Inc., was charged with unlawfully maintaining nonconforming signs in violation of the zoning ordinances of University City. Upon trial in the circuit court the appellant was found guilty and assessed a fine of $100.00 and costs in each case, and after its motion for a new trial was overruled perfected its appeal to this court on the theory that they were 'cases involving the construction of the Constitution of the United States or of this state.' Const.Mo. Art. 5, § 3, V.A.M.S.

In the first place the respondent city contends that the appellant's 'statement of error and points relied upon' are mere 'abstract statements of law and do not specify the allegations there relied on,' all in violation of Civil Rule 83.05(e), V.A.M.R., and therefore do not present reviewable questions to this court. The assignments in the appellant's brief are indeed abstract and conclusional but the respondent does not claim that the appellant's brief is such a violation of the rules as to require a dismissal and the appellant's two-point position is plainly understandable from the argument section of its brief and there is not such a flagrant abuse of the rules that this court should on its own initiative dismiss the appeal. Warren v. Weaver, Mo.App., 343 S.W.2d 682; Domijan v. Harp, Mo., 340 S.W.2d 728, 731--732 and compare Marlo Coil Corporation v. Grand Park Corporation, Mo.App., 348 S.W.2d 610.

As to the basic jurisdictional problem, questioned by the respondent, it may only be said that upon this record and in this particular case it is unnecessarily and vexatiously complex. In the first place, the prosecutions are not for the commission of conventional misdemeanors (RSMo 1959, § 556.040), criminal offenses (22 C.J.S. Criminal Law § 7, p. 17), but are rather to enforce a billboard ordinance or, strictly speaking, or recover penalties for its violation. City of Webster Groves v. Quick, Mo., 319 S.W.2d 543, 545. But in either case jurisdiction of appeals is appropriately in a court of appeals unless a constitutional question is timely raised and kept alive. City of St. Louis v. Page, Mo.App., 259 S.W.2d 98. And the city does not make the usual claim that the constitutional questions were not urged or kept alive at all levels, city as well as circuit court (City of Frankford v. Davis, Mo.App., 348 S.W.2d 553), its claim is that the issue was not properly and timely raised consistently with good pleading and orderly procedure because 'plaintiff had three prior cases in the Circuit Court whereby the issue could have been raised involving the same violation and in addition thereto appellant previously filed an injunction suit again involving essentially the same violation which was disposed of by defendant consenting to dismiss the case at its costs and agreeing to comply with the zoning ordinance.' In short, the city says that by reason of other suits between the same parties and other prosecutions, at one time or another it was said that there had been as many as twenty-eight such cases, the appellant could and should have raised the constitutionality of the ordinances and having failed to do so may not urge them in either these trials or on appeal. The precise point is all but unique and the cases cited by the respondent, instances of constitutionality not being raised until and except in the motion for new trial (State v. Arnett, Mo.App., 370 S.W.2d 169) are not helpful. There may be no cases dealing with the precise contention and Massey-Harris Harvester Co. v. Federal Reserve Bank, 340 Mo. 1133, 104 S.W.2d 385, is not plainly in point because based in part on the theory of 'inherently involved' and yet there is a lesson in the case if not an analogy. There the plaintiff alleged that a statute was unconstitutional and the defendant moved to transfer the case to the court of appeals claiming that the constitutional question had not been properly preserved because not raised in the prior trial and appeal and presumably therefore waived. But the court pointed out that the first trial did not in fact involve the new challenged state statute which was only brought into the case on appeal and so this court said, 'Under these circumstances, we hold that the question was timely raised by the relief sought (to prevent its application (as being unconstitutional)) in the amended petition filed before the second trial.'

On the other hand, the informations involved here were of necessity originally filed in the police or city court and were in the circuit court 'by the filing of transcripts on appeal' (City of St. Louis v. Stenson, Mo.App., 333 S.W.2d 529) and it does not affirmatively appear upon this record that the appellant challenged the constitutionality of the billboard sections of the ordinance in that court. Colloquy of counsel indicated that 'constitutional propositions' had been raised in the first equity action. But here there were no formal before-trial motions attacking the informations (Criminal Rules 25.05; 25.06, V.A.M.R.) but at the close of the city's case the appellant filed motions to 'dismiss information(s)' alleging as grounds that the billboard sections of the ordinance were unreasonable, discriminatory, not related to health, safety or welfare and violated due process and equal protection under both state and federal constitutions. In its motion for new trial these same grounds and perhaps some additional constitutional grounds were set forth. In these circumstances and for the purposes of appellate court jurisdiction within the meaning of the constitution (Const. Mo. Art. 5, § 3) the issue of unconstitutionality was timely and sufficiently raised. Village of Bel-Nor v. Barnett, Mo., 358 S.W.2d 832, 836--837. And jurisdiction of the appeal remains in this court even though the constitutional question is in fact without merit or unnecessary to a disposition of the cause. City of St. Louis v. Flynn, Mo., 386 S.W.2d 44; In re Search Warrant of Property, Mo., 369 S.W.2d 155.

The difficulty with the appellant's cause is not constitutionality in the jurisdictional sense but in the fact that the allegations of its motions are not supported by the record. The first point in its brief is that the court erred in admitting the ordinances in evidence because by reason of the due process clauses they 'are unconstitutional and void.' In its brief in this connection it argues from the definitions of the ordinance, and the footage allowed for certain signs that the city 'does not treat all classes the same under these sign regulation ordinances' hence they do not rest upon 'a rational basis of classification' and infringe constitutional guaranties of due process, equal protection and even of free speech. In part the parties have relied upon certain of the zoning ordinance cases and in some respects they are applicable but there is in fact a vast difference in general zoning ordinances and billboard ordinances even though the latter may be, as here, a part of the former. 3 Am.Jur. (Advertising) § 14, p. 371; 62 C.J.S. Municipal Corporations § 221 b(4), pp. 405--408. In the second place, while the appellant seeks to demonstrate from the terms of the ordinance alone that it is unreasonable that was not the basis of its defense in the trial court. It did not attempt here as in the leading billboard cases (St. Louis Gunning Advertising Co. v. City of St. Louis, 235 Mo. 99, 137 S.W. 929; St. Louis Poster Advertising Co. v. City of St. Louis, Mo., 195 S.W. 717; and Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo. 659, 144 S.W. 1099) to prove that there was no need or reasonable basis for the ordinance and that therefore it was unconstitutional. Those cases held upon the facts there adduced and as against virtually the same arguments advanced here that the billboard ordinances were a valid and reasonable exercise of the police power. Annotations 72 A.L.R. 465, 466; 58 A.L.R.2d 1314. As against the objections urged here those cases are applicable and controlling and the court did not err in admitting the ordinances in evidence.

The zoning ordinance, enacted April 6, 1959, in section 2010.7 provided that 'any such nonconforming sign shall, within a period of three years (the appellant says one year) * * * either be made to comply with all the provisions hereof or be removed.' The appellant's defense to the two charges was that the signs on its property were...