St. Louis v. Kellman , 295 Mo. 71 ( 1922 )

The appellant was arrested and convicted in the city of St. Louis, Missouri, for violating the following ordinance thereof:

"Sec. 17. PERMITS. — Every person who shall bring into the city of St. Louis for sale, or who shall, within said city, sell, prepare for sale, offer for sale, expose for sale, dispose of, exchange or deliver, or with the intent so to do as aforesaid, have in his possession, care, custody or control, within said city, milk, skimmed milk, cream, buttermilk or milk prepared by a fermentation or other process, shall first make application for a permit so to do in the office of the Board of Public Service and be granted such a permit by the Board of Public Service. Provided, however, that nothing in this Ordinance, except Section 11 hereof, shall be so construed as to apply to the handling of condensed milk."

In due course the cause reached this court, and my learned associate Judge GRAVES has written an opinion in the cause upholding the conviction; and for the following reasons to be stated, I dissent from that opinion.

Counsel for appellants contend that:

"Sections 17, 18, 19, 20 and 21 of said Ordinance No. 28646 are also invalid as being in violation of the Constitution of Missouri and of the United States in that the Board of Aldermen undertook by way of a revision of certain ordinance provisions to declare it unlawful to engage in the production, sale and distribution of dairy products in said city of St. Louis, keep a dairy, sell, prepare for sale or offer for sale, such products within said city, or bringing into the city for sale such products without a specialpermission so to do from the Board of Public Service, said board being therein expressly authorized to exercise its discretion and will in granting, refusing or revoking such permits. This amounts to a delegation of the legislative power of the city to a mere board or boards, and therefore said sections of said ordinance are invalid and unconstitutional."

In my opinion the contention of counsel is well taken.

The ordinance mentioned nowhere prescribes the terms or conditions upon which the Board of Public Service will, shall or should not issue the permit mentioned, so its issuance must rest wholly within the discretion of the board, whether that be a sound discretion based upon the law and ordinances, or the mere arbitrary power of the board. This I contend violates both of the constitutional provisions mentioned, because the appellant's right to engage in a lawful business is not determined according to law, but the sweet and arbitrary will of the board; this clearly is an attempt on the part of the city to place its paternal hand upon the interests of the people thereof, with the manifest intention of granting to itself the undefined and arbitrary power to determine who shall or shall not be granted a permit to conduct a lawful business within the city limits; this would clearly give the board the power to determine who shall have the special privilege of carrying on a dairy business in the city.

In the discussion of the same arbitrary power of the city council of the city of Poplar Bluff, this court in the case of Hays v. Poplar Bluff, 263 Mo. 516, l.c. 534, said:

"The mayor and city council of Poplar Bluff, under the charter power we have quoted, undertook to establish fire limits within which they attempted to make it unlawful without a specialpermission from the mayor and city council, `to construct any edifice, building, structure or shed, the outer walls of which are in whole or in part made of wood.' The combustible character of the structure seems to be entirely ignored. A shed with metal angles or gas pipe for frameword and tarred paper for walls and roof would evade the description of the prohibited structures as completely as brick or stone with fireproof roof. But the vice most important in this ordinance is its general scheme by which the city council places its paternal hand upon the interests of the people of the city with the manifest intention of gathering to itself the undefined and arbitrary power to determine who shall have the special privilege of erecting buildings of combustible materials in these areas, and who shall be denied, without being entitled to the courtesy of a reason. This cannot be done. The reason is well expressed by the Supreme Court of Indiana, in Elkhart v. Murray, 165 Ind. 304, as follows: `If an ordinance upon its face restricts the right of dominion which the owner might otherwise exercise without question, not according to any uniform rule, but so as to make the absolute enjoyment of his own depend upon the arbitrary will of the city authorities, it is invalid, because it fails to furnish a uniform rule of action, and leaves the right of property subject to the will of such authorities, who may exercise it so as to give exclusive profits or privileges to particular persons.' The wealth of authority opened by the court in its citations in that case has been of great assistance in the investigation of the subject. This court also, in St. Louis v. Russell, 116 Mo. 248, 257, held an ordinance of the city of St. Louis invalid `for the reason that by its provisions one citizen is permitted to erect a livery stable in a certain locality by obtaining the written consent of the owners of one-half the ground in the block, while another of like merit would not be permitted to do so for want of such consent.' In that case the court cites, with its approval, numerous authorities; among others, Barthet v. New Orleans, 24 F. 63, in which an ordinance of that city was held invalid which made it unlawful to maintain a slaughter house `except permission be granted by the council of the city of New Orleans;' State v. Mahner, 43 La. Ann. 496, in which an ordinance forbidding the keeping of more than two cows by any person within certain prescribed limits in the city without a permit from the city council was held void; Richmond v. Dudley, 129 Ind. 112, in which an ordinance forbidding the storing of inflammable or explosive oils within the limits of the city of Richmond, without the permission of the common council, was held void; State v. Dubarry, 44 La. Ann. 1117, in which an ordinance of the city of New Orleans was held void because it prohibited the setting up of any private market without permission of the city council; Newton v. Belger, 143 Mass. 598, in which an ordinance permitting the board of aldermen to exercise their discretion in granting or refusing permits for the erection of buildings within the fire limits was held invalid; and State v. Tenant, 110 N.C. 609, 612, in which a like fate befell an ordinance of Asheville, North Carolina, forbidding the erection of a building in the city without having first applied to the aldermen and obtained permission for that purpose. All these cases were decided upon principles stated in Elkhart v. Murray, supra, and repeated by the Supreme Court of North Carolina in the case last cited, as follows: `If an ordinance is passed by a municipal corporation, which, upon its face, restricts the right of dominion which the individual might otherwise exercise without question, not according to any general or uniform rule, but so as to make the absolute enjoyment of his own depend upon the arbitrary will of the governing authorities of the town or city, it is unconstitutional and void, because it fails to furnish a uniform rule of action and leaves the right of property subject to the despotic will of aldermen who may exercise it so as to give exclusive profits or privileges to particular persons.' The sentence quoted is followed by a long list of authorities to the same effect. The same principle is restated, with a liberal citation of authorities, by this court in St. Louis v. Atlantic Quarry Co., 244 Mo. 479, 487. Our conclusion is that the ordinance in question is void, because it is not within the legislative powers delegated to the city by its charter; because it violates the fundamental principle inherent in our constitutional system that when a municipal corporation seeks by ordinance to restrict for the public good the rights of the individual otherwise incident to the ownership of property, it must do so by a rule applicable to all alike under the same circumstances, and cannot make his enjoyment of his own depend upon the arbitrary will or caprice of the municipal legislature; and because its refusal to consider applications for relief from the enforcement of its prohibitory terms unless accompanied by the written consent of the property owners of the block amounts to a delegation of the legislative power of the city to such property owners."

The only distinction between the ordinance now under consideration and the one in the case just cited is that the words "special privilege" are used in the latter while they are omitted in the present one, but that omission none the less makes this one a special privilege because the permit may not be issued as suits the pleasure of the board, and no court or counsel could tell why such refusal was made.

The same rule is announced by this court in the case of City of St. Louis v. Atlantic Quarry Co., 244 Mo. 479, and on page 486, the court said:

"As we have already seen, the charter gives the municipal assembly no power to prohibit the operation of stone quarries in the city of St. Louis, so that the only question for us to consider is whether the prohibition under which this action was instituted is transformed into a regulation by the implied permission which it contains to apply to the municipal assembly for the passage of another ordinance. We know of no better definition of the thing which constitutes `regulation' in the sense we are now considering it than that which is contained in the syllabus of Montgomery v. West, 42 So. 1000. It is as follows: `A city charter authorized the city to suppress nuisances in the manner directed by the city council, which had power to perform any acts incident to bodies corporate. An ordinance forbade the operation of steam engines, planing mills, foundries, blacksmith shops, etc., within the city without first obtaining the consent of the council. Held, invalid, in that it failed to prescribe a uniform rule of action, but reserved to the council the right to grant or withhold the privilege arbitrarily.' It is absolutely within the discretion of the municipal assembly whether it shall pass the permissive ordinance or not. If it does not a lawful business has been destroyed, if the theory of the city is correct, without any opportunity for redress. In St. Louis v. Russell, 116 Mo. 248, BURGESS, J., in the opinion of this court holding void an ordinance of the city of St. Louis providing that `No livery, boarding or sale 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,' cited a large number of cases in which the position we have taken in this opinion is upheld. To these we add the following: Yick Wo v. Hopkins, 118 U.S. 356; Plymouth v. Schultheis, 135 Ind. 339; Bills v. Goshen,117 Ind. 221; Elkhart v. Murray, 165 Ind. 304; Winthrop v. Chocolate Co.,180 Mass. 464; Austin v. Murray, 16 Pick. 126; State v. Tenant,110 N.C. 609; Boyd v. Frankfort, 117 Ky. 199; Barthet v. New Orleans, 24 F. 563.

"It has been said that it is not to be assumed that councils or officers in exercising the dispensing power will act arbitrarily, or otherwise than in the exercise of a sound discretion. In the Chocolate Company Case above cited the court disposed of that question as follows: `Nor is it any answer to say, that the whole matter is left to the selectmen, and that they may be presumed to act in a reasonable manner. It does not expressly or by necessary implication require them to adjudicate and determine that it is necessary to prohibit the proposed erection and use for the prevention of fire or the preservation of life, but leaves them to act upon any reason whatever. It cannot be said that such a by-law is authorized by the statute.'"

There are other good and lawful reasons why the majority opinion in this case does not correctly declare the law of the State, as shown by the court in the last cited case as appears on page 488 thereof.

For the reasons stated I dissent from the majority opinion.