Zinn v. City of Steelville

• Decision Date: 06 July 1943
• Docket Number: 38167
• Parties: Walter Zinn, Appellant, v. City of Steelville, a Municipal Corporation, Albert Kreamalmyer, Mayor and Ex-officio Police Judge, and Bart Parsons, City Marshal
• Court: Missouri Supreme Court

173 S.W.2d 398

351 Mo. 413

Walter Zinn, Appellant, v. City of Steelville, a Municipal Corporation, Albert Kreamalmyer, Mayor and Ex-officio Police Judge, and Bart Parsons, City Marshal

No. 38167

Supreme Court of Missouri

July 6, 1943

Appeal from Crawford Circuit Court; Hon. W. E. Barton Judge.

Affirmed.

L H. Breuer and E. W. Allison for appellant.

(1) Injunctive relief against void city ordinances, proper. Baker v. Hasler, 274 S.W. 1095; Graves v Purcell, 85 S.W.2d 543. (2) Injunction lies to restrain threatened enforcement of a special law and this applies equally to city ordinances as well as state laws. Missouri Constitution, Art. IV, Sec. 53, subsection 32; City of Springfield v. Smith, 19 S.W.2d 1; Ex parte Lerner, 218 S.W. 331. (3) The powers of a Board of Aldermen of a city of the fourth class to enact ordinances regulating the business and conduct of its citizens are defined and restricted by the statutes of Missouri and the ordinance in question in this case does not come within the purview of the powers delegated to the Board of Aldermen of such city and is illegal and void. Sec. 7442, R. S. 1939. (4) Ordinances of a city, to be valid, shall conform to the power and authority delegated to such city by state law. And the ordinance in question in this case is without and beyond the power and the authority delegated by state law to the Board of Aldermen to enact and enforce and is invalid and void. Sec. 7442, R. S. 1939. (5) The ordinance in question in this case singles out certain businesses and persons operating the same, as well as a restricted class of persons that patronize such businesses, to-wit: businesses having a license to sell intoxicating liquor or beer, or nonintoxicating beer, and denies such citizens the enjoyment of their liberty and property and denies them due process of law as guaranteed by the Constitution of Missouri, Sections 4 and 30, Article II. (6) The ordinance in question in this case deprives certain persons therein singled out of their liberty and of their property without due process of law, and denies those certain persons, so singled out by said ordinance, and to whom it is intended to apply, the equal protection of the law in violation of the 14th Amendment, as well as Amendment V of the Constitution of the United States. (7) The necessity for the existence of Civil Government lies in the protection it affords to the rights of the individual. Laws enacted for this purpose, by which the government manifests its power, are necessarily more or less restrictive in their nature. They should therefore embody in their terms evidence that they will at least not lessen if they do not add to inalienable rights. Unless, therefore, it can be shown that such an enactment adds to or tends to make an addition to fundamental rights, they are not justified. State ex rel. v. McKelvey, 256 S.W. l. c. 478. (8) The value of property is dependent upon the uses to which it may be put. To limit the use is a restriction upon the right of property, and should not be made without compensation unless the right restricted would, if exercised, rise to the plane of a public nuisance. State ex rel. v. McKelvey, 256 S.W. l. c. 478. (9) To follow a lawful business or vocation is part of the liberty protected by the constitutional limitations. Hughes v. Operators, 221 S.W. 95. (10) While cities have great powers vested in them to pass ordinances which may be deemed expedient for the good government of the city and for the preservation of its peace and good order, there are certain fixed restrictions upon the exercise of this power, and against the enactment of oppressive ordinances under the guise of protecting the general public in their morals, peace and order. Municipalities are not guardians of morals, as such, and therefore may not unduly interfere with the liberty of the citizens by ordinances forbidding acts not unlawful or wrongful per se. City of Carthage v. Block, 139 Mo.App. 386. (11) A city ordinance must be clear, certain and definite so that the average person may understand, upon a reading thereof, whether he will incur a penalty for his action. City of Washington v. Washington Oil Co., 145 S.W.2d 366. (12) The ordinance in question constitutes class legislation and denies to certain citizens of the City of Steelville "due process of law" in that certain citizens and certain classes of citizens of that community are singled out for the imposition of restraints and burdens not imposed upon and to be borne by all of the classes, or of the community at large. Said ordinance is unreasonable, arbitrary, discriminatory, oppressive and unequal in its applications and violates provisions of Sections 4 and 30 of Article II of the Constitution of Missouri. (13) The ordinance in question is in conflict with Section 1, Article XIV, of the United States Constitution, which forbids that "any state deprive any person of life, liberty or property without due process of law." (14) The ordinance in question cannot be denominated a police regulation for it does not in terms or by implication promote, or tend to promote, the public health, welfare, comfort or safety; the State will not be allowed under the guise and pretense of police regulations to encroach or trample upon any of the just rights of the citizens, which the Constitution intended to secure against diminution or abridgement. State v. Julow, 129 Mo. 163. (15) Evidence offered by defendants by certain witnesses, over the objections and exceptions of plaintiff, that the playing of automatic music machines, radios, or other music or entertainment, or dancing in plaintiff's place of business, as well as in taverns other than that of plaintiff, was offensive and annoying to them, was purely conclusions on their part and at most represented the particular whims, tastes, and likes and dislikes of the particular witnesses who so testified, and, under the rules of evidence, should not have been admitted and considered by the court under the issues joined in this case, and such evidence was wholly illegal and incompetent. Furthermore, the testimony of certain witness on behalf of defendants, that the playing of automatic music machines, radios or other music or entertainment, and dancing in the particular places of business specifically covered by the ordinance in question, to-wit: places having a license to sell liquor, beer or nonintoxicating beer, was degrading. City of Carthage v. Block, 139 Mo.App. 386. (16) Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied. State ex rel. v. McWilliams, 74 S.W.2d 363. (17) It is well established that whether an enactment by statute, ordinance, or municipal regulation is fairly referable to the police power is to be determined upon its face, or to be shown aliunde. State ex rel. v. Remmers, 101 S.W.2d 70. (18) The city and its officers are clothed with ample authority to proceed against any person or place of business within the city and to regulate such person's conduct of a business, or even close a business establishment, for cause, but that cause must be peculiar to the person complained of or proceeded against, or peculiar to his place of business or manner of operating or conducting such business, but a blanket ordinance merely embodying an abstract regulation or prohibition based on the conception of the Mayor and Board of Aldermen as to what is good and not good for the general welfare, will not be upheld. State ex rel. v. Johnson, 211 S.W. 682.

G. C. Beckham and E. E. Roberts for respondents.

(1) It has been definitely and clearly established and settled by the decisions of the Supreme Court of Missouri and the Federal Supreme Court, that an ordinance fairly referable to the police power of the municipality, and which discloses upon its face, or which may be shown aliunde to have been enacted for the protection, and in furtherance, of the peace comfort, safety, health, morality and general welfare of the inhabitants of the municipality, does not contravene or infringe the several sections of the State and Federal Constitutions invoked by the appellant here, and cannot be held invalid as wrongfully depriving the appellant of any right or privilege guaranteed by the Constitution, State or Federal; the reason and basis underlying such decisions being that the personal and property rights of the individual are subservient and subordinate to the general welfare of society, and of the community at large, and that an ordinance which is fairly referable to the police power has for its object the "greatest good of the greatest number." Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 628; St. Louis Gunning Advertising Co. v. St. Louis, 235 Mo. 99, 137 S.W. 929; State ex rel. Oliver-Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720; Armour & Co. v. North Dakota, 240 U.S. 510, 36 S.Ct. 440, 60 L.Ed. 771, Ann. Cas. 1916D, 548; Cusack Co. v. Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472, L. R. A. 1918A, 136 Ann. Cas. 1917C, 594; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A. L. R. 1016; Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074; Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228, 53 A. L. R. 1210. (2) An ordinance which prescribes a police regulation need not expressly recite the fact that it is enacted in pursuance of the police power of the municipality, nor need it declare that its purpose is to abolish a nuisance. Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 628; State v. Cantwell, 179 Mo. 245. (3) The mere fact that the ordinance prescribes only a pecuniary penalty by way of a fine to be assessed against a violator of its provisions does not render the ordinance any other...