Wilson v. City of Waynesville

• Decision Date: 23 April 1981
• Docket Number: No. 11871,11871
• Citation: 615 S.W.2d 640
• Parties: Dewey WILSON et al., Plaintiffs-Respondents, v. CITY OF WAYNESVILLE et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 640

615 S.W.2d 640

Dewey WILSON et al., Plaintiffs-Respondents, v. CITY OF WAYNESVILLE et al., Defendants-Appellants.

No. 11871.

Missouri Court of Appeals, Southern District, Division One.

April 23, 1981.

Wm. C. Morgan, Waynesville, for defendants-appellants.

Thomas P. Rose, Jefferson City, for plaintiffs-respondents.

FLANIGAN, Judge.

In 1979 each of the three plaintiffs was granted temporary authority (later made permanent) by the Public Service Commission "to operate as a common carrier of passengers in nine passenger limousine service between Fort Leonard Wood and Waynesville, Missouri, over irregular routes in non-scheduled call-and-demand service." In April 1980 the council of defendant City of Waynesville, a city of the third class enacted Ordinance No. 495, Section 3 of which prohibited drivers of limousines from embarking or disembarking passengers within the city except at one designated location, to-wit: "On North side of Business Loop I-44 from a spot 79 feet East of the East end of Roubidoux Bridge for a distance of 75 feet to the East." With formal parts omitted, material portions of the ordinance are set forth below. ¹

In April 1980 plaintiffs instituted this action against the city and three of its officials. The petition sought a declaratory judgment to the effect that Section 3 was void and also sought a temporary restraining order and an injunction against the enforcement of Section 3. The trial court held Section 3, and Ordinance 495 in its entirety, to be void and enjoined the defendants from enforcing "the provisions or any part of" Ordinance 495. Defendants appeal.

The petition attacked the validity of Section 3 on several grounds, including the following: (a) The city lacked statutory authority to enact Section 3; (b) Section 3 is a "local or special law" of the type proscribed by Art. III, Sec. 40(30) of the Missouri Constitution. ²

This court agrees with defendants that the decree of the trial court is too broad in that it invalidates the entire ordinance and not merely Section 3. The petition sought relief only with respect to Section 3 and the plaintiffs' evidence was to the general effect that they had no objection to other portions of the ordinance. Although an ordinance contains an invalid provision, the remainder of the ordinance should not be stricken down as void unless it may be found judicially that the city council would not have passed the entire enactment if it had known of such validity. Pearson v. City of Washington, 439 S.W.2d 756, 762(14) (Mo.1969); City of Rolla v. Riden, 349 S.W.2d 255, 259(7) (Mo.App.1961). This defect in the decree will be corrected by a modification. This court agrees with the trial court that Section 3 is invalid and affirms the decree enjoining its enforcement.

It is the position of defendants that Section 3 is constitutional and a valid exercise of the city's police power under several statutes ³ including § 304.120, par. 2(1). ⁴ Each of defendants' five points asserts that the trial court erred in finding Section 3 to be unconstitutional and invalid. The points, respectively, attack various legal and factual findings contained in the trial court's decree. It is unnecessary for this court to rule upon the correctness of those findings because, in this court-tried case, the decree will be sustained if the result is correct even if based upon an erroneous finding, Lalumondier v. County Court of St. Francois County, 588 S.W.2d 197 (Mo.App.1979) and even if the decree contained erroneous legal or factual reasons for the result reached. Kenilworth Ins. Co. v. Cole, 587 S.W.2d 93 (Mo.App.1979).

The sole issue on this appeal is the validity of Section 3. In ruling the issue certain general principles come into play. A city, which is a creature of the legislature, possesses only those powers expressly granted, or those necessarily or fairly implied in or incidental to express grants, or those essential to the declared objects of the city, and any reasonable doubt as to whether a power has been delegated to a city is resolved in favor of non-delegation. City of Kirkwood v. City of Sunset Hills, 589 S.W.2d 31, 35 (Mo.App.1979). The determination of what considerations properly call for the exercise of police power is primarily a legislative, not a judicial, question and the courts "do not second-guess the judgment of the legislative body as to the wisdom, adequacy, propriety, expediency or policy of the legislative act in question." City of St. Louis v. Liberman, 547 S.W.2d 452, 457 (Mo. banc 1977).

An ordinance is presumed to be valid, but this is a rebuttable presumption and while an ordinance may be valid in its general aspects, as to a particular state of facts involving a particular owner affected thereby it may be so clearly arbitrary and unreasonable as to be unenforceable. Parking Sys., Inc., v. Kansas City Down. Redev. Corp., 518 S.W.2d 11, 16 (Mo.1974). The issue of reasonableness or arbitrariness must turn upon the particular facts of each case, Landau v. Levin, 358 Mo. 77, 213 S.W.2d 483 (banc 1948), and the person challenging the validity of the ordinance has the burden of proving unreasonableness. State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762 (banc 1950). If the city's action is reasonably doubtful or even fairly debatable, the court cannot substitute its opinion for that of city council. Landau v. Levin, supra.

Generally speaking, the regulation of the parking of automobiles on its streets by a city is a valid exercise of the state's delegated police power. State v. City of Mexico, 355 Mo. 612, 197 S.W.2d 301, 303 (1946). "Municipalities have been expressly given the power to make rules of the road or traffic regulations to meet their needs. See (§ 304.120, par. 2). Public safety is involved. It is established that City's reasonable regulation of traffic, including the regulation of the parking of vehicles upon roads used for public travel, is a valid exercise of the police power." City of St. Louis v. Cook, 359 Mo. 270, 221 S.W.2d 468, 469(1) (1949).

In Baker v. Hasler, 218 Mo.App. 1, 274 S.W. 1095 (1925), this court held an ordinance of the city of Caruthersville to be "unauthorized by statute" and "void because unreasonable." The ordinance made it unlawful for any person, licensed to engage in the business of operating any automobile or jitney bus for the purpose of carrying passengers for hire, to permit or allow "any such automobile or jitney bus to be or remain stationary or parked on any public street or alley within the corporate limits of the city of Caruthersville, except for a reasonably sufficient length of time to permit passengers to embark or disembark from such automobile or jitney bus, ..."

The court said, 218 Mo.App. 1, 274 S.W.2d at p. 1096: "The ordinance at bar does not attempt to regulate the parking of automobiles used for carrying passengers for hire. It prohibits the parking of such automobiles. (§ 304.120, par. 2) authorizes municipalities to regulate the parking of vehicles on the streets, but neither this or any other statute authorizes municipalities to prohibit the parking of vehicles on the streets. Said (statute) further provided that

" 'No ordinance shall be valid which contains provisions contrary to, or in conflict with this act, except as herein provided.'

"And there is nothing therein provided which squints at authorizing such a drastic ordinance as the one at bar."

Although the ordinance in Baker is not identical to Section 3 of the Waynesville ordinance, in some respects the latter is even more "drastic." Under the Waynesville ordinance a limousine is permitted to park, but only at one designated place. Unlike the Caruthersville ordinance, the Waynesville ordinance contains no exception with regard to brief stops at other places in the city for the purpose of permitting passengers to board or alight.

This court agrees with the trial court that Section 3 of the ordinance is a "special law" of the type proscribed by Art. III, Sec. 40(30) of the Missouri Constitution, set forth in footnote 2.

The special law provision of our present constitution "differs very little" from the provision which appeared in the Constitution of 1875. State ex rel. Wagner v. St. Louis Cty., Etc., 604 S.W.2d 592, 603 (Mo. banc 1980). The proscription of special laws applies to ordinances as well as to statutes. ⁵

"The basis of sound legislative classification is similarity of situation or condition with respect to the feature which renders the law appropriate and applicable. A law may not include less than all who are similarly situated. If it does, it is special, and therefore invalid, because it omits a part of those which in the nature of things the reason of the law includes." State ex inf. Barrett ex rel. Bradshaw v. Hedrick, 294 Mo. 21, 241 S.W. 402, 420 (1922).

"The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not, therefore, what a law includes, that makes it special, but what it excludes." Hagerman v. City of St. Louis, 365 Mo. 403, 283 S.W.2d 623, 628 (1955). "(T)he judiciary shall use its own processes of logic in determining the presence or absence of reasonableness or unreasonableness in the given classification." City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1, 3 (1929).

A law is not a special law if it applies to all alike of a class, ⁶ but the classification must not be arbitrary or unreasonable. ⁷ An ordinance attacked as a special law is presumptively valid, ⁸ and the burden is on the attacker to prove that the classification is unreasonable. City of Springfield v. Smith, supra, 322 Mo. 1129, 19 S.W.2d at p. 10(13).

In some instances ordinances have been upheld although they treated a certain type of vehicle as constituting a separate class to which the ordinance was confined. See 7A Am.Jur.2d Autos. and High. Traf. § 21, p. 208.

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