This is аn appeal from a judgment entered against the City of Kansas City, *879 Missouri, and certain named administrative officials of said municipality, permanently restraining them from enforcing the city’s ordinance prohibiting the holding of public auctions on Sunday. Plaintiffs’ petition set out the questioned ordinance and challenged its constitutionality and validity, as hereinafter stated. Defendants moved to dismiss on the ground that the petition failed to state facts upon which relief could be granted. The motion was overruled on February 25, 1958. Thereafter, on April 23, 1958, the defendants declined to plead further and the court entered judgment for the plaintiffs and enjoined the defendants from enforcing the ordinance, hence this appeal.
In view of the issues presented we must look to the allegations of the petition. The petition alleged that ABC Liquidators, Inc., is a corporation organized according to law; that Wilbur Swearingen and George Jacobs are doing business as Reliable Auction ; that thеy are engaged in the business, trade and profession of operating a place of business for the purpose of selling personalty at auction under licenses duly issued by the Clerk of the County Court of Jackson County, Missouri, and the defendant, City of Kansas City, Missouri; that Ordinance No. 19978, adopted by defendant city on May 23, 1956, provides as follows :
“Section A. That the Revised Ordinances of Kansas City, 1946, are hereby amended by enacting a new section to be added thereto to be known as Section 5-8.1, prohibiting auctions on Sunday, said section to read as follows:
“Section 5-8.1. No person shall hold or conduct a public auction on Sunday.
“Section B. That the Revised Ordinances of Kansas City 1946, be and they are hereby amended by repealing Section 5-10 thereof relating to exceptions, and enacting in lieu thereof a new section of like number relating to the same subject, which said section shall read as follows:
“Section 5-10. Excepted Sales. The provisions of this chapter shаll not extend to any public sale held under legal process.”
Penalties for violation of the mentioned ordinance were provided by another ordinance not in question here.
The petition further alleged that,
“Ordinance No. 19978, Sections A and 5-8.1 are void and invalid in the following respects:
“(a) It denies these plaintiffs and each of them the equal protection of the law as guaranteed to them by the 14th Amendment to the Constitution of the United States and Section 1 thereof.
“(b) It is in violation of Section 2 of Article 1 of the Constitution of Missouri in that it denies these plaintiffs equal rights and opportunity under the law and the enjoyment of the gains of their own industry as guaranteed to them by said section.
“(c) It is unreasonable, arbitrary, discriminatory, oppressive, and unequal in its application, all in violation both of Section 1 of the 14th Amendment to the Constitution of the United States and of Section 2 of Article I of the Constitution of Missouri.
“(d) It unreasonably and arbitrarily and without any fair and substantial reason relating to the general object аnd legislative purpose to be accomplished, wrongfully, arbitrarily and unreasonably places the business of these plaintiffs into an arbitrary and unreasonable class, and arbitrarily attempts to distinguish between the business of selling goods at auction and the business of all other forms of selling personalty.
*880 “(e) There is no peculiarity in the condition of those engaged'in the business of selling at public auction which justifies their segregation for the purpose of prohibiting them from conducting such business upon the day specified in said ordinance, and such business is not calculated to be accompanied by noise, confusion, and excitement, and if held on Sunday will not result in special desecration of the Sabbath, and disturbance of the day of rest.
“(f) Said ordinances constitute a local or special law and are contrary to the provisions of Section 40 of Article III of the Constitution of Missouri which prohibits the enactment of a local or special law where а general law can be made applicable.”
The trial court did not indicate the theory of law upon which it acted in overruling the motion to dismiss and the respondents have not favored us with a brief. The cause was submitted here on the record and appellants’ brief.
Appellants contend that the court erred in refusing to dismiss plaintiffs’ petition and in restraining defendants from enforcing the ordinance for the reason that a legislative body has a wide discretion under its police рowers to separate people into classes; and because auctioneers and auctions may be legally regulated as a distinct class of business.
It should first be noted that the state law, to wit, Section 563.720 RSMo 1949, V.A.M.S., provides: “Every person who shall expose to sale any goods, wares or merchandise * * . * on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor * * *.” Section 563.730 RSMo 1949, V.A.M.S., provides that “Section 563.720 shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity.”
Section 563.720, evidencing the police power of the state .to provide for the general welfare has repeatedly been held valid when attacked on the ground that it violated certain provisions of the Constitution of the United States and of the State of Missouri. State v. Ambs,
In State v. Chicago, B. & Q. R. Co.,
Sections 563.720 and 563.730 have been held not in conflict with an ordinance of the
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city of St. Louis prohibiting the keeping open of grocery stores and the selling of goоds therein on Sunday. City of St. Louis v. Bernard,
Respondents’ petition does not expressly allege any conflict between the city ordinance in question and the statute in question, or that respondents are engaged in the sale of “any drugs or medicines, provisions or other articles of immediate necessity” at public auction or that they seek an injunction against appellants on such ground. They do say that “there is no peculiarity in the сondition of those engaged in the business of selling at public auction which justified their segregation for the purpose of prohibiting them from conducting such business upon the day specified in the said ordinance.” ' While we find that ordinances of cities in other states prohibiting the sale of merchandise at public auction on Sunday have been held valid, these ordinances were attacked on other grounds, such as a provision prohibiting auction sales after 6 P. M. or on other provisions of the ordinances. See State v. Gordon,
We will next consider the charge that the ordinance violates the due process and equal protection clauses of the fedеral and state constitutions. Section 1 of the 14th Amendment to the Constitution of the United States and Section 2 of Article 1 of the Constitution of Missouri 1945. It is apparent that the ordinance in question purports to be an exercise of the police power, which power has been conferred upon the city of Kansas City by statute. Section 82.300 RSMo 1949, V.A.M.S.; Turner v. Kansas City,
In the last mentioned case, where the plaintiffs-appellants therein were attacking a city ordinance and had appealed from an adverse judgment, this court said: “It has been definitely and clearly established and settled, by the decisions of this сourt and of the federal Supreme Court, that a statute or a municipal ordinance, which is fairly referable to the police power of the state or municipality, and which discloses upon its face, or which may be shown aliunde, to
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have been enacted for the protection, and in furtherance, of the peace, comfort, safety, health, morality, and general welfare of the inhabitants of the state or municipality * * * cannot be held invalid as wrongfully depriving the аppellants 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 a statute or 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, supra,
As in the Bellerive Invеstment Co. case, supra, the question here presented for our consideration is whether the ordinance in question is fairly referable to the police power of the appellant municipality, and whether the expressed requirements or regulations of the ordinance have a substantial and rational relation to the health, safety, peace, comfort, and general welfare of the inhabitants of the municipality. If such question may be answered in the affirmative, thеn, under the decisions of this court and of the U.S. Supreme Court the ordinance cannot be held to infringe the constitutional rights and guaranties invoked by the respondents here in their petition, unless it well can be said that the ordinance passes the bounds of reason and assumes the character of a merely arbitrary fiat. Zinn v. City of Steelville,
The ordinance purports to regulate public auctions, except public sales held under legal process, by prohibiting them on one day of thе week, to wit, on Sunday. The term “auction” is defined in 7 C.J.S. Auctions and Auctioneers § 1 a, p. 1239, as follows: “An auction is a public sale of property to the highest bidder, by one licensed and authorized for that purpose. The main purpose of auction sales is to obtain the best financial returns for the owner of the property sold; and they are based on the purpose and policy of obtaining the worth of property by free and fair competition among the bidders; and hence сompetition among a number of bidders is a necessary element.”
In 5 Am.Jur. 446, Auctions, Sec. 2, the term is defined, as follows: “An auction, as usually defined, is a public sale of property to the highest bidder, although there is a form of auction commonly known as a ‘Dutch auction’ where the property is put up at a price greater than its value and the price is then gradually lowered until someone closes the sale by accepting the offer and thus becoming the purchaser.” Competitivе bidding, up or down, has been said to be an essential element of an auction sale. B. H. Stief Jewelry Co. v. Walker,
While the business of auctioneer-ing is a lawful business and a useful one, it is universally held that the legislature has the power to prohibit auctioneering, except through licensed auctioneers, and it may, also, make other regulations which are reasonable and not wholly arbitrary. Hagerman v. City of St. Louis,
Those engaged in the business of selling at public auction have long been subject to regulation and licensing in this state. See Sec. 2 of an Act approved December 6, 1820, 1 Terr. & State, Laws, p. 694. Sеction 343.010 RSMo 1949, V.A.M.S., now provides that “no person shall exercise the trade or business of a public auctioneer by selling any goods or other property subject to duty under this chapter, or real estate, without a license.” Section 343.100 requires at least six months residence in the state and, under Sec. 343.110, a bond must be given before a license is issued. Under Sec. 343.130, a tax is levied on the proceeds of the sales of property at auction. Most cities, towns and villages in this state are authorized to license, tax and regulate auctioneers. See Sections 73.110(17), 75.110, 94.110, 94.270, 94.360, 80.090 and 74.127(2) RSMo 1949, V.A.M.S. An auctioneer must comply with the requirements of both the state law and any applicable city ordinance. Simpson v. Savage,
The regulation of the sale of goods at public auction is under the police power and it is of the very essence of the exercise of the police power that citizens may, for the public good, be constrained in their conduct with reference to matters in themselves lawful and right. Hopper v. Stack,
Many of the cases approving the reasonable regulation of auctions by city ordinance are based upon the fact that it is recognized that auction sales of merchandise are attended with far greater risk of fraud and loss to the public than in ordinary retail sales of merchandise by merchants. Saigh v. Common Council of City of Peto-skey,
While it is apparent that the sale of goods at public auction on Sunday would not necessarily be more likely to be attended with fraud and imposition upon buyers than on other days in the week, still the right to regulate sales at public auction depends on the inherent or known evils or dangers to public welfare connected with such auction sales and such evils or dangers are not necessarily limited to the dangers of fraud or other imposition on buyers.
The United States Supreme Court in Patsone v. Commonwealth of Pennsylvania,
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This court may and does take judicial notice of matters of common knowledge. Elder v. Delcour,
The ordinance excepts “any public sale held under legal process,” or sales commonly referred to as judicial sales. A judicial sale has been defined as “one mаde under the process of a court having competent authority to order it, by an officer duly appointed and commissioned to sell, as distinguished from a sale by an owner in virtue of his right of property.” Black’s Law Dictionary, 3d Ed. And see 50 C.J.S. Judicial Sales § 1, p. 577. A judicial sale is defined in Noland v. Barrett,
We have heretofore reached the conclusion that a sound basis in fact exists for the classification made by the ordinance between public auctions and the excepted public sales under legal process. We further hold there is a substantial basis for classifying public auctions on Sunday from public auctions held at other times. We further hold that the ordinance in question, being a valid еxercise of the police power theretofore delegated to Kansas City, does not violate' the due process or equal protection provisions of the federal or state Constitutions. Nor does it deny to respondents equal rights and opportunity under the law or deny them the enjoyment of the gains of their own industry. The ordinance is not prohibitory, but provides a reasonable regulation of public auctions by prohibiting them on Sunday. The ordinance is uniform in its operation upon the class to which it applies. It is directed against public auctions, which we have seen are a natural and reasonable subdivision of the sale of merchandise and commodities and are subject to regulation. The ordinance is not arbitrary nor discriminatory, *885 since it rests upon a valid classification based upon the type of the sale, which is different from other forms of selling personal property.
There remains the question of whether the ordinance constitutеs a local or special law contrary to the provisions of Sec. 40 of Article III of the Constitution of Missouri 194S, which prohibits the enactment of any local or special law where a general law can -be made applicable. The question presented is “a judicial question to be judicially determined without regard to any legislative assertion on that subject.” Article III, Sec. 40(30), Const, of Missouri.
“The courts must determine the question, as other purely judicial questions are determined, by rеference to the nature of the subject; not upon proof of facts or conditions, but upon the theory that judicial notice supplies the proof of what courts are bound to know, and that courts must be aware of those things which are within the common knowledge, observation atid experience of men generally.” Anderson v. Board of Com’rs of Cloud County,
While courts will ordinarily presume that municipal officials, in enacting such an ordinance as this, have acted reasonаbly, and that the ordinance has some relation to the public health, safety, convenience, .or welfare, yet the courts will, without hesitancy, declare invalid an ordinance which appears from the testimony or upon its face to be clearly unreasonable. However, the burden of showing that the classification made rests upon an unreasonable basis or distinction rests upon the respondents in the case, who have made the attack upon the ordinance. City of Springfield v. Smith, supra,
If, therefore, the classifications provided by the ordinance, to wit, classifying sales at public auction in a different class from that of other ordinary and usual private sales аnd different from public sales under legal process, and if such classifications are reasonable and not arbitrary in view of the inherent or known evils or difficulties connected with public auctions as sought to be remedied by the ordinance, then our problem is solved and the ordinance is valid as against the contention made. Since we have held the classification reasonable, it follows that the ordinance does not violate Article III, Section 40.
The judgment is reversed and the cause remanded with directions to sustain the motion to dismiss the petition.