St. Louis v. Dorr

Barclay, C. J. In March, 1894, the city of St. Louis began an action in a police court against the defendants, Messrs. Dorr and Zeller, to recover a penalty for violation of a municipal ordinance. In the police court the defendants were adjudged not guilty. The city took an appeal to the St. Louis Court of Criminal Correction where the. trial now under review took place. The substance of the charge against defendants is that they carry on the business of confectioners in a building (No. 3924) on Washington boulevard, contrary to said ordinance. The ordinance was enacted in 1892. It declares a certain portion of Washington avenue to be a boulevard, and, among other provisions regulating the use of that thoroughfare, provides that “the houses fronting or bordering on Washington boulevard, between Grand avenue and Kingshighway, shall be used as residences only, and no business avocations whatever shall be allowed to be followed in same.” It appears from the record that on March 15,1894 (and on divers days immediately prior thereto) the defendants were carrying on the interdicted avocation at the, place mentioned. They had previously' conducted — 471 — a confectionery business on Vandeventer avenue, just east of their store on Washington boulevard. Defendants’ counsel at the trial admitted the material facts charged. The defense is that the ordinance is unconstitutional. The trial court sustained that defense and entered judgment for defendants. The city (after the necessary steps) brought the case to the Supreme Court by writ of error. It was heard in the second division which entered an order transferring the case to the Court in banc, June.8, 1897. It has since been argued and submitted to the whole court. 1. The claim of the city is that the ordinance is authorized by “An Act relating to boulevards in cities having a population of 300,000 inhabitants or more.’’ Laws, 1891, p. 47. The first section of that Act is as follows: “'Section 1. All cities in Missouri having a population of three hundred thousand inhabitants or more, or which shall hereafter reach said population, are hereby authorized and empowered to establish by ordinance boulevards and provide for maintaining the same; and may regulate, the traffic thereon, and may exclude heavy driving thereon, or any kind of vehicle therefrom, and may exclude the institution and maintenance of any business avocation- on the property fronting on such boulevard and may establish a building line to which all buildings and structures thereon shall conform, and may convert existing streets into boulevards, and may levy a special tax on property fronting on said boulevards, to light, sweep and maintain the same, and the grass and trees thereon, or any part of said expenditures, and for the above purposes, or any of them, may lay out'a district or districts in which said special tax shall be levied, and provide for the assessment of said special tax, by assessing the same in favor of the city on the adjoining property fronting — 472 — or bordering on the boulevards where such lighting, sweeping and maintenance is to be had, in the proportion that the linear feet of each lot fronting or bordering on the boulevard bears to the total number of linear feet of all property chargeable with the special tax aforesaid in the district so established, and may accept dedication, of boulevards with conditions thereto attached which shall be binding and conclusive: Provided, however, that no ordinance on the above subjects, or any of them, shall be valid unless recommended by the board of public improvements of the city enacting the same.” (The other sections of the Act need not be quoted.) It is not pretended that there is any other specific authority by which the city of St. Louis is empowered to exclude such a business av.ocation as that of the defendants from property fronting on, or adjacent to, any public street. Without a clear grant of such power no municipal ordinance (of the sort invoked in this case) could possibly be sustained. Such a restriction as the ordinance imposes upon the ownership of private property could certainly not be supported as a proper exercise of mere general power to regulate the use of streets, or under any express power to which we have been cited in the St. Louis charter. If the Act of 1891, relating to boulevards in cities having a population of 300,000 inhabitants or more, is not valid as an amendment of the said charter, the ordinance at the foundation of this action is unauthorized (,at least so far as concerns the charge against defendants). Being of the opinion that the said boulevard Act does not of itself operate to alter the existing charter of the city of St. Louis, we hold said ordinance void, as applied to the facts of defendants’ case. 2. The Constitution of 1875 prohibits the passage-of any local or special law “authorizing the laying out, — 473 — opening, altering or maintaining roads, highways, streets or alleys,” or “incorporating cities, towns or villages, or changing their charters.” (Art. IV, sec. 53). It is further provided in the ninth article as follows:— “Sec. 7. The General Assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. The General Assembly shall also make provisions, by general law, whereby any city, town or village, existing by virtue of any special or local law, may elect to become subject to, and be governed by, the general laws relating to such corporations.” The scope and intent of the section just quoted have been recently described in a learned opinion of Judge Philips, in a Missouri case in the United States Circuit Court. “This provision of the Constitution is both mandatory and prohibitory. Its command is not only that, the legislature shall provide for the organization and classification of all cities in the State, but such provision must be by general laws, not special enactments. It then commands the classification of such cities, and interdicts the creation of more than four classes. It further commands, not only that the legislature shall define the restrictions and powers of each of said classes, but also that this shall be done by general law. It then proceeds to declare the purpose of the convention in making this requirement to be ‘so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.’ The clear intent of which is to prevent the multiplica — 474 — tion of classes of municipalities, and the giving to one within the same class different powers and functions, and imposing upon any one restrictions different from those in the same class or division. In short, it is to secure absolute uniformity, by general law, applicable to all the given classes, respecting the faculties with which they might be endowed, and the limitations placed upon their functions by the legislature; so that any person, anywhere, desiring to ascertain what are the powers and restrictions of any one city of a given class in the State, could be advised thereof by looking at the ‘general law’ defining such powers and restrictions.” Ward v. Boyd Paving Co. (1897) 79 Fed. 391, affirmed (1898) 85 Fed. 27, in a well considered judgment of Judge Sandokn. The legislature of Missouri has enacted general laws for the organization of four classes of cities and towns under legislative charters. R. S. 1889, secs. 972-977. The first class comprises cities of 100,000 inhabitants and over. For cities of that size, choosing to adopt it, a charter is provided in substantially the same terms as those of the original freeholders charter of St. Louis (R. S. 1889, secs. 984-1236). If the boulevard Act of 1891 is entitled to any standing as a general law it is on the thfeory that the Act is applicable to all cities that may in time possess the population stated. The Act then will necessarily have the effect to enlarge the powers of all cities of the first class when they reach a population of 300,000, leaving the smaller cities of that class without those enlarged powers. Thus the first class .of cities with general charters would be divided into two classes, and there would exist at least five classes of legislative charters, in violation of section 7 above quoted, and especially in violation of that part of it which declares that “the power of each class shall be defined by gen — 475 — eral laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.” That part of the Constitution forms an impregnable obstacle against such enactments as this. The section just quoted was designed to put an end to special legislation (however disguised) in relation to the municipal powers of cities and towns that might accept the classified charters applicable to them. The reason for so positive a command on that point was briefly given in the address which accompanied the new Constitution when first promulgated: «‘Cities and Towns. Charters of cities and towns must be amended by general law. The advantages of this must be apparent. To illustrate: a single law will suffice for all cities and towns of the same class in the State: whereas now a separate law must be passed for every city. Legislation in the interest of individuals and cliques will be prevented, for while it is easy to procure the passage of an unjust law affecting but a single locality, in which none but the immediate representatives are interested, it would be difficult to procure the passage of a similar law affecting all localities of the same class.” But whatever the reason for the constitutional mandate its purpose to prohibit the enactment of legislative charters for more than four classes of cities is sufficiently clear to demand enforcement. Fortunately its language is so plain as to be more difficult of evasion than some other parts of the organic law have proven to be. Conceding then (for argument) that the boulevard Act before us is in form a general law (because it may apply to all cities that in future reach the prescribed size) it is yet unconstitutional because it would add another class to the four classes of legislative — 476 — charters already existing, and would confer on some cities of the first class (on reaching the population of 300,000) municipal powers not possessed by smaller cities of the same class. Worcester Nat. Bank v. Cheney (1880) 94 Ill. 430; Denman v. Broderick (1886) 111 Cal. 96 (43 Pac. Rep. 516). 3. But it is contended that the boulevard Act is at least valid as an amendment to the charter of St. Louis, and .that, as such an amendment, it is not within the intention of the seventh section of the ninth article of the Constitution in its prohibition of more than four general classes of city or town charters. Waiving now all question whether such a narrowing of the application of the boulevard Act is' permissible (considering its title and its terms) let us examine the merits of the contention. They involve the construction of those provisions of the organic-law under which the present charter of St. Louis came into operation. Those provisions are familiar to all who have had occasion to examine into the relations of that city to the State. They form the concluding pkrt of the ninth article of the Constitution, and begin with the twentieth section. St. Louis was not alone in obtaining the privilege of framing a charter for its own government. By the sixteenth and seventeenth 'sections of the same article all cities having a population of more than 100,000 inhabitants were accorded a similar right. Kansas City has availed itself thereof, and is governed now by a charter prepared by its freeholders and adopted by its own citizens in 1889. An Act of the General Assembly was passed in 1893 purporting to empower “every city in this State which is now or may hereafter be organized under and by virtue of the provisions of section 16, article 9 of the Constitution of this State, to establish and maintain — 477 — for such city a system of parks and boulevards,” etc. But the Supreme Court in bane held that Act unconstitutional, . and declared that, so far as concerns the local affairs of Kansas City, its present charter can not be amended by an act of the legislature. Kansas City ex rel. v. Scarritt (1895) 127 Mo. 642 (29 S. W. Rep. 845 and 30 S. W. Rep. 111) followed in Kansas City v. Ward (1896) 134 Mo. 172 (35 S. W. Rep. 600) and Kansas City v. Marsh Oil Co. (1897) 140 Mo. 458 (41 S. W. Rep. 943). The correctness of that ruling is admitted in this case by the learned counsel for St. Louis, whose brief states “that the charter of Kansas City can not be amended as to local matters by an act of the legislature or in any other way than by vote of the people,” and that “as to special matters, therefore, Kansas City will, under this ruling, always have her own rule for the improvement of her streets, which will be different from the rule in other cities.’-’ But he, nevertheless, insists that “St. Louis, under section 25 of article 9, may be affected by a general act amending her charter.” Let us inquire why the charter of St. Louis, should be considered subject to amendment by the legislature, as to matters of municipal and local concern, while the charter of Kansas City and others framed under section 16 are to be exempt from such amendment. Section 16 provides that the freeholders’ charter adopted under it “maybe amended” (after certain preliminaries) by a vote of the people of the city, “and not otherwise. ” Section 22 provides that the St. Louis charter “may be amended at intervals of not less than two years,” by proposals submitted to, and accepted by, a certain part of the qualified voters of the city. But the words “and not otherwise” (occurring in section 16) are wanting in section 22. As to each kind of charter and amendments thereof it is expressly provided that — 478 — they “shall always be in harmony with and subject co the Constitution and laws” of the State. At the close of the article is the further declaration that- “Notwithstanding the provisions of this article, the den eral Assembly shall have the same power over the city and county of St. Louis that it has over other cities and counties of this State” (sec. 25). The section last quoted was probably inserted out of abundant caution to indicate that the scheme and charter for the reorganization of the city and county governments of St. Louis were not to be construed to impair the power of the Gteneral Assembly to legislate for that city and for St. Louis county to the same extent that other cities and counties of the State were subject to that power. Section 25 does not refer to any distinction between local and other subjects of legislation; but sections 20 and 23 indicate that distinction quite clearly. Section 20 moreover describes, in very significant terms, the legal force of the scheme and charter when duly ratified, viz: “then such scheme shall become the organic law of the county and city, and such charter the organic law of the city, and at the end of sixty, days threafter shall take the place of and supersede the charter of St. Louis, and all amendments thereof, and all special laws relating to St. Louis county inconsistent with such scheme.” “Organic law” is a term usually applied to constitutional law only. It certainly imports a high degree' of authority. No such language is used in the sections (16 or 17) under which other large cities are empowered to frame their own charters. ' The whole project for the separation of the city and county, and for the investiture of the city of St. Louis with functions of government formerly appertaining to the county, involved the exercise of sovereign legis — 479 — lative power. Sections 20 and 23 disclose that the scheme and charter of St. Louis were expected to deal with some topics properly within the domain of the general legislative authority of the State — topics affecting the necessary operations of the machinery of the State government in that locality — as well as to deal with matters of mere local administration of municipal affairs. The “scheme” was expressly intended to provide for the “enlargement and definition of the boundaries of the city, the reorganization of the government of the county, the adjustment of the relations between the city thus enlarged and' the residue of St. Louis county.” That adjustment required provisions to be made for the collection of the State revenue in.the city, and for the performance of “all other functions in relation to the State” which had previously been performed by the county. Both sections 20 and 23 exhibit the dual relation that the city was expected to sustain toward the State, if the scheme and charter were accepted by the people. ■ The charter of the city (besides regulating its local affairs) contained many provisions to define the mode in which the city should perform many essential governmental duties toward the State, “as if it were a county” (sec. 23). The city was practically put in the position of a county for the purposes of executing the functions of government in that locality. As those functions were to be performed by city officers, the scheme and charter undertook, in the first instance, to prescribe how, and by whom, those duties should be discharged. But matters of purely municipal and local concern the Constitution intended to commit to local self-government, which the peculiar provisions in regard to St. Louis were designed to authorize. It may not always be easy to determine what sub — 480 — jects are local and municipal and what are not. That difficulty is not a new one. But it is easy to determine in this case that the boulevard act deals with a subject of strictly municipal concern, for the principle of the decision of the Supreme Court in State ex rel. Kansas City v. Field (1889) 99 Mo. 352 (12 S. W. Rep. 802) is decisive of that proposition. In view of those extraordinary constitutional provisions (which were innovations in our law) and in view of the large powers granted to the freeholders and to the people of St. Louis, it was thought prudent to insert section 25. But the terms of that section certainly do not imply that the General Assembly is to have any greater power over the city and county of St. Louis than it has over other cities and counties of the State. The very words of the section indicate that it is not intended to cut down any of the grants of power in other sections of the ninth article. All parts of the organic law should have due weight. Section 25 seems to us to give no sanction to the holding that the charter of the city of St. Louis is subject to amendment by the General Assembly in those particulars wherein the freeholders charter of Kansas City (for example) is exempt from such amendment. The people of the State expressed in the Constitution, in most solemn form, a purpose to give the people of St. Louis power to “frame a charter for the government of the city” (sec. 20). It was never intended that the charter should be subject to the same sort of change by special legislation as before the Constitution of 1875. Yet that would be the case if the simple device of legislation applied to. population (as in the Act before us) met the approval of the courts. When we take into view all parts of the Constitution bearing on the question of legislation for municipal organizations, we do not doubt that section — 481 — 22 in its present form was designed to have the same effect that was ascribed by the Court in banc (in the Kansas City case, 127 Mo. 642) to that part of section 16 pointing out the mode of amendment of charters framed under section 16. The variation of phraseology by the use of the words “and not otherwise” (in section 16) indicates no difference of intent as to the mode of amendment, when the other parts of that article are considered. The method of direct amendment of the St. Louis charter is ordained by section 22, and that method is exclusive; subject, however, to the repeated qualification that the charter of St. Louis and those of all other cities in the State are subject to the Constitution and laws of the State. In respect of those topics which involve the relations of the city to the State there can be no doubt that the legislative power of the State may properly be exercised over the city of St. Louis, as has been done in many instances disclosed by decisions in the Missouri Reports. See State ex rel. v. Tolle (1880) 71 Mo. 645, approving a law in regard to legal advertisements; Ewing v. Hoblitzelle (1884) 85 Mo. 64, sustaining the Act regulating registration, elections and the office of recorder of voters in St. Louis; State ex rel. v. Miller (1890) 100 Mo. 439 (13 S. W. Rep. 677) construing a statute for the government of the public schools; State v. Bennett (1890) 102 Mo. 356 (14 S. W. Rep. 865) interpreting laws to govern the State board of police in St. Louis; State ex rel. v. Bell (1893) 119 Mo. 70 (24 S. W. Rep. 765) sanctioning the law in regard to the excise commissioner in St. Louis; State ex rel. v. Higgins (1894) 125 Mo. 364 (28 S. W. Rep. 638) holding valid the Justice of the Peace Act for St. Louis; Kenefick v. St. Louis (1895) 127 Mo. 1 (29 S. W. Rep. 838) sustaining the Act for auditing the sheriff’s accounts in St. Louis. — 482 — The General Assembly has, furthermore, undoubted power to legislate for St. Louis, as for all other cities, in the full exercise of the police power of the State, as well as to enforce direct mandates of the fundamental law by appropriate statutes, and to pass all proper laws that are general throughout the State. State ex rel. Ziegenhein v. Railroad (1893) 117 Mo. 1 (22 S. W. Rep. 910) affords an illustration of legislation of the latter sort. In that case a law intended to prescribe rules for assessing railroad property throughout the State was held applicable to St. Louis and operative to repeal charter provisions on that subject. But the theory (advanced in this case) that the freeholders charter of St. Louis may be amended by an Act such as that before us, while the freeholders charters of cities organized under section 16 may not be so amended, seems at variance with the terms of section 25 which is assigned as the basis of that theory. The charter of St. Louis is subject to the legislative power of the State to the same degree that other cities and counties are. But the degree to which the charters of other cities are subject to amendment by Acts of the General Assembly is limited and defined by section 7 of the same article, already discussed in a previous paragraph of this opinion. . That section imposes positive restrictions on the power to deal at all with city charters, obtained since the Constitution of 1875 took effect. Those limitations are as applicable for the protection of the city of St. Louis against legislation upon its local affairs as to protect any other city against such legislation. Legislation on local topics, properly comprehended in municipal charters, must be enacted in the manner defined by section 7, by general laws, the nature of which is indicated explicitly, viz: "So that all such — 483 — municipal corporations of the same, class shall possess the same powers and be subject to the same restrictions.77 And the number of classes which the General Assembly may create for the organization of cities and towns is positively limited to four. Those safeguards protect all city charters that have come into being under the Constitution of 1875. Municipal charters of earlier date have been held not to fall within those rules as to classification but to be amendable by general laws, outside the classification prescribed for cities and towns organized since section 7 became part of the organic law. Rutherford v. Heddens (1884) 82 Mo. 388; Rutherford v. Hamilton (1889) 97 Mo. 543 (11 S. W. Rep. 249). Those decisions should not be extended to reach any case not falling strictly within the facts then-in judgment. But nothing decided in those cases sanctions the contention that freeholders charters (authorized to be adopted by the terms of the Constitution itself) may be amended by an Act of the General Assembly such as this before us, conferring municipal powers on all cities now (or hereafter) having 300,000 population, when there are already four general classes of legislative city charters, the first of which is subject to adoption by any city having 100,000 population. To permit such an amendment of the charter of St. Louis, or any other constitutional charter, would let loose anew many of the evils -of special legislation that the Constitution so carefully endeavored to suppress. How earnest was that endeavor is evident from the following passage in the address (already referred to) with which the Constitution was presented to the people. “The evils of local and special legislation have become enormous. We need but look to our session acts to be satisfied that this species of legislation occupies — 484 — the larger portion of the time of our General Assemblies to the neglect and prejudice of public interests. The expense to the State in passing and publishing such laws and the combinations by which private interests have been advanced and dangerous monopolies created are well known. Under the proposed Constitution the General Assembly is prohibited from passing such laws. In all cases where a general law can be made applicable a special law can not be enacted.” We believe in' firmly maintaining the barriers which the present organic law has erected against the abuse of legislative power by special and local legislation, and to permit no evasion of the just and wholesome provisions which were intended to abolish that abuse. We believe in guarding all city charters, accepted under the pledges of the Constitution of 1875, from unlawful invasion by special legislation as to local affairs, and believe in enforcing, as vigorously as any other part of the Constitution, the provisions of section 7 of article IX, limiting the number of classes of cities and towns for which the General Assembly may pass laws conferring municipal powers. Doubtless, remarks may be found in some of the decisions mentioned in this opinion (and in some other cases cited in the briefs of learned counsel) which are not in entire harmony with all that is above written. But we believe that the actual judgments pronounced in the most, if not in all, of the cases referred to are supported by the principles we have endeavored to elucidate. 4. Finally, it is suggested that a great number of statutes would be invalidated if the views we have indicated are finally accepted as the law. To this it may be answered that many of the statutes that have been cited as coming under the ban of our ruling are plainly — 485 — sustainable on various grounds indicated in this opinion. But even if this were not so, there would yet be a more satisfactory answer to give, in the words of another: “No length of usage can enlarge legislative power, and a wise constitutional provision should not be broken down by frequent violations.” People ex rel. v. Allen (1870) 42 N. Y. 384. We hold that" the boulevard Act is not a valid amendment of the charter of St. Louis. Up to this point Judges Gantt, Maceaelane, Robinson and Brace concur in all that has been written. 5. In addition to the reasons above given for affirming the judgment, Judges Gantt, Robinson and Brace consider that the ordinance in question is unconstitutional for the further reason that it is an unwarranted invasion of the right of private ownership of property;’ and that, even were the ordinance founded upon "express authority contained in the local charter (to the same purport as stated in said Boulevard Act of 1891) the ordinance would, nevertheless, be void in so far as it undertook to prohibit the use of defendants’ property for a confectionery store on Washington boulevard, because the ordinance is an invasion of a valuable constitutional right of defendants to the enjoyment of their- real property, of which right-they could not be deprived without just compensation, by any ordinance, whether authorized by the charter or not (St. Louis v. Hill (1893) 116 Mo. 527). The judgment should be affirmed, and it is so ordered, Judges Gantt, Macearlane, Robinson and Brace concurring in this opinion as already indicated. Judge Sherwood expresses his views in a separate opinion in which Judge Burgess concurs. .