*1 namely, her that defendants prayed petition, entitled the relief property, premises of all in- be foreclosed interest sold, proceeds applied payment and that the of the sale be therefore, her court, properly her claim. The dismissed suit. J., J., P. Hughes, McGullen, is affirmed. concur. Clayton, (Plaintiff), Appellant, v. Paul Nemours, R. Respondent. (2d) 164 W. (Defendant), 935. Appeals. Opinion
St. Louis Court filed Oct. 1942. rehearing
Motion for overruled Oct. 1942. Supreme Court, Petition for Writ Certiorari denied Nov. 1942. *2 appellant. Jr., for Ossenfort, and John P. Glen Mohler *3 Keil & Keil and Frank respondent. Coffman *5 of Police Court originated casе BENNICK, G. This charging complaint filing of a Missouri, upon City Clayton, of No. Ordinance of violation Nemours, defendant, Paul R. with unlawfully parked had July 1941, he city, 26, of in. that said on Avenue, near no-parking zone on
his automobile'in where point, at a Road, in an area Clayton intersection by the ordinance. prohibited Circuit appealed court, police defendant Convicted in the evi- all of the conclusion wherein, at County, Court of St. Louis instructed peremptorily dence, court, request, at defendant’s Plaintiff, guilty. finding jury return a defendant verdict trial; and City new Clayton, time filed its motion due discharging being overruled, judgment was entered this reaches jury. case verdict of the accordance with the directed in favor judgment plaintiff’s appeal from such this court defendant. with defendant’s are confronted At the 'outset of the we case city had plaintiff ground that appeal upon
motion to dismiss favor judgment no entered in defendant’s appeal from the County. in the Circuit Court of St. Louis entirely the assumed Defendant his contention bases almost (Mo. Mo. 1939 statutes, one, 7140, effect R. S. two Section A., other, R. S. sec. Section R. S. (Mo. A., 7363). R. S. sec. relating
Section part chapter which is a and article of the one), cities (of Clayton of the fourth class which the .to provides arising mayor judge that' in all police before the or cases under the city, an taken either ordinances be mayor police the defendant from the judge, except judgments guilty; from on a plea of that such having shall taken to court jurisdiction, criminal shall taken in the time and provided by manner relation the statutes in appeals judgments from justices peace in misdemeanor cases; appeal, proceed appellate court shall with the provided appeals cause the same as is cases manner judgments from justices of. the peace in misdemeanor cases.
Section part provisions applicable made provides cities and towns, that appeals police courts and for violation of an town, village be in shall
173 justices of of judgments from appeals of criminal the nature peace. the case signify in statutory that provisions,
From a proceeding in police a court judgment of of appeal an from the in circuit subsequent procedure for of ordinance violation an civil and not the with the criminal court be in must accordance city’s right appeal in the event code, defendant that the of reasons upon the depеnd of must likewise judgment a in favor of the defendant (and right code, being which, criminal silent according to de- being statutory), denote, of appeal purely would city theory right appeal of matter, fendant’s in that has no judgment a in court. from for the defendant the circuit appeal judgment While in of an from the is true that case it police criminal required of a to follow court the circuit court is procedure just though it on as the case were before an a judgment justice defendant’s con peace of a 282 S. (N=oll viction of Alexander misdemeanor App.], [Mo. 739), W. this does not mean that a criminal the ease itself becomes city position in the circuit court place case so same as the State far from a so as concerns its in favor of the defendant. years
It has'been prosecution taken as for in this .settled State a for (City violation of a of St. a civil action ordinance Stubley although Louis v. con- 407), 154 S. W. App.], [2d] [Mo. cededly resembling consequenсes. a criminal action in its effects and Regarding-it with respect substance, partakes to both form and action, although some the features of each character of its simili- tude to either complete. is not 146 Mo. City, v. Kansas [Stevens 460, 48 658;W. S. St. Louis v. 235 Mo. Ameln, W. 429.]
In primary object the sense that punish, prosecution its is to a for the violation of a undoubtedly criminal purpose, but form, especially nevertheless civil when re garded as an action recovery for of a debt representing the amount of the fine or penalty imposed against the violation of the ordinance. Where punishment prescribed the ardinance may, in instance, imprisonment the first be the defendant, conception of the action as recovery one debt will course longer (City no obtain of St. Louis v. Von Hoffman, 312 Mo. S. W. but even proceeding, so the though object its sole tois punish, not a proceeding punish nevertheless .for commission the. crime legal accurate sense the term. This for the reason that a crime is an act committed in violation law, is, a law coextensive with the boundaries of the it, State enacts an ordinance, while contrary, is no more than a mere local police regulation passed pursuance of and in subordination promotion peace preservation law for the Hollwedell, 74 parte locality. good particular order in [Ex words, In other W. 53 S. Gustin, 152 Mo. 395; State v. 421.] offense crime, it is act or omission is where the defendant’s such, but where large punishable against public at it is regulation, police municipal only in the violation consists *7 not does the State which municipality, against the an offense merely by a punish to itself permits the but punish, to undertake and city’s name own in the summary instituted penal proceeding constituted be municipal court whatever
prosecuted in jurisdiction. limited exercise of such en- to out, proceeding a pointed though, for the reasons But even dignity of a not rise an penalty ordinance does force to a criminal related closely nevertheless so prosecution, criminal is nearly with identical ease, consequences a conviction are wisely Legislature has crime, a a conviction of those of from appeal that an by question provided two statutes appeal, of a criminal regarded as in the nature police, court shall be according to in the circuit court proceeded and shall City King However, pointed out procedure. rules criminal remains 246, prosecution Duncan, v. 238 Mo. 142 such 513, S. W. question of the case, determining a civil which means that right viewed from the stand- appeal, substantive the matter is to parties point rights are accorded to the respect in that Mo. 1939 (Sec. action under the R. S. civil code [Mo. A., R. S. sec. 1184]). far municipality appeal So from h as concerns the judgment proceeding in favor of in a for violation the defendant of an ordinance, rule munici- would seem be that the pality has right, procеeding regarded such if the as civil in its is nature. Am. Jur., Appeal Error, pro- see. That and such [2 228.] ceeding regarded as civil in our own State is well settled decisions; and consequently, prevails when the court, only may circuit move trial for a new for error allegedly against (City Carthage committed Bird, 146 Mo. App. 325, 129 S. W. but it also as in the case of any party other to a civil aggrieved action who is adversary. in favor his Bender, of St. Louis v. 248 Mo. [City 154 88; S. W. St. Hackman, Charles v. 34 W. Mo. 878; of Springfield v. Starke, App. 70.] from all follows plaintiff’s has been said that appeal was properly allowed in the dismiss case; instant and defendant’s motion to must therefore be overruled.
Passing case, to the merits of the ultimate for decision whether the court committed error in peremptorily directing a in favor verdict of defendant. maintenance ownership and far Ridge Avenue, so running north Clayton, City of private street concerned, area,' residential Addition, a restricted through Moorlands and south on the north. Boulevard 'Wydown Clayton Roаd on the south Í1, 1922, title December original dated By the d§ed Addition was Moorlands platted as laid out and in the tract streets successors, and and their survivors designated trustees
vested in three enjoyment use and for the exclusive joint to hold the same as tenants assigns. their heirs in the Addition and lots owners caring for duty of thereafter with the impressed were trustees they were em- maintaining streets, purpose ^for Addition, in the lots powered levy against the several assessments in a against the lots to and appоrtioned with the to be assessments upon the made that manner the deed. specified in Provision designated originally three death of the trustees last survivor deed, thereupon in the should vest then title to streets free Addition, owners located in to be of the* lots said title subject conditions, re- trust, continuing easements; but to all the strictions,- and bind- covenants, charges applicable made thereto *8 ing upon the however, thereon. It further provided, was trust, termination of might in Addition the owners the lots the. object respect continue to perpetuate and intent with its the use and by choosing agents maintenance of the to act streets them, powers substantially regard.should whose duties the same as original those a fact, of the As this trustees. matter very situation had about; come and at time of defendant’s arrest the control of agents reposed streets three who had been duly by chosen lotowners, by' pre- as evidenced instrument pared and filed of record on January 1934.
Notwithstanding privаte ownership, undisputed evidence was that save for year one week when its north and south entrances are closed off alternately, Ridge Glen only permitted Avenue is not 'to open traffic, extensively but indeed is used for such by traffic, both persons residing in Addition, by and also those general public members of the who desire and have occasion to make thoroughfare use of a Clayton Wydown between Road and continually Boulevard. is in fact trucks, used for automobiles, and other vehicles, just as is true of all the other privately owned streets in the Addition as to which a similar license extends. Inci- dentally, the evidence shows that was open at both thug ends for public travel at the time of defendant’s charge arrest on involved proceeding. this
By ordinance No. which is entitled “An Ordinance' Regulating Traffic the Public Streets of the of Clayton,” it is made any unlawful for operator “to park any any vehicle on street or in any lawfully designated district by place aas where parking сontemplation within highway,' A street or prohibited.” for vehicular open “every way place or is defined as ordinance, such regardless legal status, and regardless of its by public, travel authority by constituted legally established has been of whether it highway.” a statutory of time as by period for the or user regulation any rule or the ordinance For violation of in the provided a thereto, penalty pursuant Street Commissioner days, exceed $100, imprisonment $1 a form of fine (Or subsequent ordinance A imprisonment. both fine and such conjunction with along and read No. to be dinance which is erect standard Commissioner No. directs Street Ordinance any standing, stopping, signs prohibiting traffic Clayton a Road and Ridge vehicle “on between both sides Glen Clayton point 115 feet north of Road.” párking for only restriction impose Not. did the.ordinance Clayton on either side north of Road of 115 feet distance effective traffic Ridge Avenue, in order to establish of Glen but signal at the stop-and-go erected an electric control the also and out intersection, whereby the flow traffic into of' point of the have or markers Ridge automatically Avenue Lines Glen controlled. dividing painted the whole been of the street the surface traffic three Ridge Avenue into paved feet width of Glen lanes, placed pad, a metal which there has been center one of the red of an causes the wheel automobile contact lights Road, signal Clayton stop traffic on electriс making Ridge into permits the of a left turn from of Avenue off Glen Clayton may at east all Road. The lane used vehicles right Clayton Ridge Avenue, times make into Glen turn Road Ridge while the west lane turn at times from permits Clayton into Avenue Road. family, Defendant of his resides, as member of the home
_ mother corner which is located on northeast of Glen Avenue *9 Clayton Clayton Road; and Road. The house faces on and the area Ridge parking in is on Glen to prohibited Avenue extends the along a point rear the west of the lot to a within feet of side few driveway garage. the the which leads into fact of his arrest was an admitted that at the time defendant’s ’ parked no-parking in the zone on the east of automobile was side Ridge alongside property. A Glen Avenue his mother’s conviction police court, upon his the followed but to court he circuit discharged with a directed verdict which was accordance re- evidence; already indicated, at the close of all thе As turned the city’s this court the from such judgment comes to on case acquittal of in the circuit court. ownership Ridge of Glen being of the Avenue character what poses question being before the court
it.is, the defendant one of
177 of an the city prohibit parking to power whether has plaintiff the geographical limits. within its private on a street located automobile and situation, the only of partial a view however, represents This, features of modifying and patently material omits all reference to thе the depends. ques If the case upon the evidence which the result city might prohibit merely whether the tion, in were one of abstract, undoubtedly would be private property, the answer W. 602, 287 S. Corvey, App. 220 negative (Ex Mo. parte by say nothing city, ordinance, its has to of fact that the under thing. contrary, taken the ordinance which no such On the purporting charged having is, by an ordinance title, is violated its Clayton, regulate City of upon public to traffic streets whether, undisputed question presented under thаt is n ,a may public facts of the said to be ease, Avenue obviously street contemplation so, within the If it is of the ordinance. question, because of the it applied; use to which is and actual may is therefore, police whether regulatory power Ridge Avenue, notwithstanding extended over Glen private its ownership maintenance, by permis and view the fact that sion and public use, invitation of is owners, its it devoted to and extensively by general used public with the license accordаnce granted. Every of,the citizen holds property subject his valid exercise police power, and in the event.of conflict between individual his society interests and whole, those he must his as a subordinate private rights to proper power reasonable and police exercise for the promotion and furtherance of what is conceived be the State, welfare. it is duty So fulfilling when its' protecting the property persons using lives and upon while may roads State, supervision duly extend its roads public constituted highways commonly if piiblic (Phil used for travel lips Henson, v. 30 1065); W. so likewise [2d] power delegated State, exercise of the by regulate the use of transportation vehicles other means roadways streets rightfully are made use of public within municipal regardless its limits, legal of their status.- It use to which a street is put gives city’s rise duty regulate the flow of upon it; traffic and if the situation is such that a permitted street is to be made use for the pleasure and convenience lаrge, at the character of ownership its immaterial being subject regulation control and proper ordinances. [Crossler Safeway Stores, Inc., Idaho, 413, (2d) Pac. 151.] As an adjective, “public” the word has dual depending meaning, upon the sense in employed. which it In one sense be em- *10 ployed to describe the character in thing which a is held, while an- thing use to which may equally
other denote proper and sense it put. C. J. [50 845.] escaping be no In the term there seems the latter sense as insofar street Ridge public is a Avenue conclusion' that Glen and control plaintiff right of' concerns This upon it. motor vehicles regulate operation the use and of its permission and solely by sufferance for the reasons way vehicular open for place it has been allowed to become a owners street, to all by words, a de public, or, travel other facto just amounting highway public ato practical purposes intents and alleys and public streets legally constitutеd in the case of the as Inc., Safeway Stores, v. municipality. supra.] within the [Crossler way encroach any Nor this conclusion entrench does city any title rights to confer private property, or serve may ex- Concededly Avenue to the the owners Glen street. any they heretofore The license public clude the from it at wish. time only granted general will so to the to use the street continue long power of those whose as suit convenience street, grant deny long But owners of or to the license. by the to be used do allow the permission, sufferance street discloses, the general manner neces- which the evidence be the sity regulation degree than would will exist in no less publicly maintained; and and the case if the street were owned during may prescribe rules which the time, reasonable by all privilege enjoyed members of thus extended including proper public, the owners of the and the street regula- families, of their conform members who must likewise (23 imposed. Gammons, tions thus 40 Mass. [Commonwealth Pick.) 201.] from all follows that has been said that the court was in circuit peremptorily directing defendant, error in a verdict for judgment circuit must and the court therefore reversed remanded. The cause Commissioner so recommends. foregoing opinion Bennick, C., adopted
PER CURIAM:—The opinion Respondent’s of the court. motion to dismiss the overruled, judgment court circuit reversed and Hughes, J., Anderson, JJ., cause remanded. P. McCullen concur. Rehearing. Motion
On kor BENNICK, (respondent) C. Defendant filed a has motion re- hearing earnestly in which he overruling insists his motion to city’s appeal, thereby plaintiff upholding dismiss municipality favor the *11 ordinance, an we have of for violation prosecution the case o£ in into statutes referred the with the two brought ourselves into conflict A., 1939, Mo. R. S. R. Mo. principal opinion (Sees. 7140, 7363, which is counter a result 7363), secs. and have reached purpose obvious of the statutes. on decision his motion agree defendant that our cannot with
We their violative to either in conflict with the statutes or of dismiss is aspects which, recognized of criminal purpose, obvious in view the ordinance, merely city to set proceeding civil for violation of a uncertainty legislative enactment, prevail- at the rest, positive ing appeals of in the trial proper procedure to be followed as from courts. an provide
All that that such purport such do is to statutes appeal “in the sense appeal shall be the nature” оf criminal provided that its trial proceeded shall be with in the manner as is same appeals justices peace cases of judgments from of the in cases of criminal, providing misdemeanor. But while that thus not civil, govern on procedure code shall to be followed appeal, anywise statutes do not undertake to alter the char- .the they acter of such a proceeding inherently nature, as civil nor do deny subsequent right which the civil character the proceeding еqually parties may affords either of the to it who aggrieved by Indeed, circuit court. inso- far thought legislative as statutes purpose to indicate or policy in that respect, specifically pro- is inconceivable that viding that either the or the defendant judgment of the city (Sec. court Legislature should at the same time have intended at that the conclusion trial circuit court, the alone, defendant city, should have the right of appeal. further
As for having matters question case, is, do the merits of the that with the validity prohibiting the ordinance parking of along automobiles Avenue for a distance of Clayton feet north of Road, complains ,our decision insofar an holding constitutes effectual the city, power “regulate” incident to its on vehicles streets (Sec. 8395, R. S. Mo. A., R. S. sec. 8395), may absolutely “prohibit” the parking of automobiles point at the and within the prescribed limits the ordinance.
For his assumed authority, defendant cites the case of Baker Hasler,
alley limits of the'corporate within alight from to enter passengers length permit of time sufficient jitney automobile or bus. if void an ordinance declare courts to Asserting the power held unreasonable, the court to be is shown appears or the same that its ground upon the obvious invalid to be particular any parking, stopping prohibiting the sweeping declaration corporate limits alley public street or within entire *12 outside any purpose for type of motor vehicles special the one common noted, in contravention oppressive, exception was one right, and therefore unrеasonable. particular on its eminently just sound above decision city authority proposition for but it no
facts, constitutes or parts designate streets regulation, may not, police aas reasonable pro either be shall upon parking which of streets within its limits contrary, -On absolutely a limited time. else hibited restricted and establish regulate define parking, power under its (Cava prohibited be limited or zones where shall either long Gerk, naugh 375, 51); v. S. W. so 313 Mo. safety, pubilc the courts necessary for оrdinance is reasonable and to its if no other obstacle it, will have no recourse to enforce but has validity bar, at Incidentally, exists. in the case is unreasonable never contended that ordinance con unnecessary the ordinance public safety; for and that granted, taken for proper regulation therefore be police stitutes city’s if automobiles operation power regulate the use Ridge extends to Glen Avenue. original defendant’s case,
As the burden оf submission denying (in him complaint ordinance common the effect every Ridge else) park on Glen Avenue for one residence, he adjacent distance of feet to his where mother’s family, resides private property as a member her is to take for public just compensation. use without The answer to contention this any private property public that the has taken for use contrary, voluntarily otherwise. On the the owners themselves have permission extended use Avenue for travel manner and the extent that the evidence discloses; granted and it the fact of the license thus the owners power both the duty casts of imposing regulations upon exercise of such reasonable long license so allow the same to be To sure, the owners continued. the revocation if license, elect, owners should so would not work actual although ordinance, repeal practical of- effect would be the by removing the sole basis same depends validity. fоr its rehearing over- respondent’s motion for follows that should ruled; and the Commissioner recommends. foregoing opinion adopted C., Bbnnicic,
PER CURIAM:—The rehearing is, opinion Respondent’s as the of the court. motion for accordingly, Hughes, J., Anderson, overruled. and MeCuUen and P. JJ., concur. Chrisman, Jr.,
William M. Respondent, Terminal Railroad Appellant. Louis, Association Saint (2d) 157 W. 230. Appeals. Opinion 6, January St. Louis Court of filed 1942.
Appellant’s rehearing January 20, motion for 1942. overruled granted by Supreme Petition writ of certiorari 1942. Court March January quashed Supreme ofWrit certiorari Court 1943. rehearing by Supreme motion overruled
Relator’s March Court 1943.