275 Mo. 501 | Mo. | 1918
Appellant was tried and fined in the police court of St. Louis. He appealed to the Court of Criminal Correction and met the same fate. He has appealed to this court, a constitutional question being involved.
The complaint, omitting formal parts, is as follows:
“Hugh Allen to the City of St. Louis, Dr.
“To one hundred dollars for the violation of an ordinance of said city, entitled, ‘An Ordinance in Revision of the General Ordinances of the City of St. Louis,’ being ordinance No. 26653, sections 1351, 1357, 1358, approved November 9, 1912.
“In this, to wit: In the city of St. Louis and State of Missouri, on the 9th day of July, 1916, the said Hugh Allen did then and there drive a vehicle over and upon the streets of said city and did fail to comply with the direction by voice or hand of a member of the police force as to stopping, starting, approaching or departing from any place, to-wit, in front of Metropolitan Building, Grand Avenue and Olive Street, contrary to the ordinance in such cases made and provided,” ,
“Sec.' 1351. Drivers must at all times comply with any direction by voice or hand, of any member of the police force, as to stopping, starting, approaching or departing from any place; the manner of taking np or setting down passengers or loading or unloading goods in any place.
“Sec. 1357. Any person violating any of the foregoing provisions, rules and regulations shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not to exceed one hundred dollars.”
In the Court of Criminal Correction and previous to the trial there, the defendant moved to quash the complaint on the ground that it did not state facts sufficient to constitute an offense under the ordinances of the city and because said Section 1351 of the- ordinance is contrary to the Fourteenth Amendment to the Constitution of the United States, in. that it deprives the defendant of his liberty and property without due process of law, and deprives him of the equal protection of the law. The motion was overruled.
The affair out of which this prosecution arose occurred on Grand Avenue in front of the. Metropolitan Building, which fronts west on that avenue about 150 feet, and south on Olive Street about the same distance. It is an eight-story office building, almost entirely occupied by professional men. About the middle of the west front at the curb are two posts twenty-three feet apart, on each of which is the sign, “Don’t stand between these posts.” The defendant was the chauffeur of Mr. Leahy, one of his counsel in this ease. On July 9,1915, near four o’clock in the afternoon, the defendant drove his car to said entrance. The wife of his employer was in the car on her way to the office of her dentist in that building. The defendant backed bis car so that the rear thereof was near the south post, and most of the car was in front of the entrance at an angle of about forty-five degrees. Backed
“I went out and said: ‘You will have to move your machine from the building here, you can’t block this entrance. ’ He said: ‘ Where will I go ? ’ I said: ‘ I don’t know where you will go, but you will have to move, ’ and he said: ‘Where will I park this car?’ I said. ‘You may have to go up to Washington or down on Lindell, but you can’t stop here.’ He said: ‘Huh, the madam was in the building and I will stay here until she comes down, ’ and I immediately placed him under arrest. ’ ’
The elevator boy testified that after defendant had been there fifteen or twenty minutes, he (witness) asked defendant to move, axxd that defendant said there was no other place to go, and that witness asked the officer to compel defexxdant to move.
The defendant on the stand said that after he had beexx there about fifteen or twexxty minutes, the elevator boy asked him to move, and that he (witness) told the boy to make the express wagons move then he would move, and that he told the officer the same thixxg. The arrest followed.
However meritorious the city’s rights may be if properly presented, the ordinance relied on by the city in its complaint is invalid.
That case is cited with approval in 1 Dillon on Mu. Cor. (5 Ed.), sec. 321.
In Richmond v. Dudley, 129 Ind. 112, it was held that city ordinances must specify rules and conditions to be observed in the conduct of business, and must allow all
’ In Hays v. Poplar Bluff, 263 Mo. 516, it was held by Court in Banc that though a city can prescribe “fire limits,” yet it has no power to ordain that no building shall be constructed of the proscribed materials without the permission of the mayor and council, and that such permission shall not be given without the written consent of all persons holding property in the block. It was there said that in such matters the ordinance must make rules applicable to all alike, and that such matters cannot be left to the arbitrary will of any one. That case cites with approval the Indiana cases above mentioned.
The ordinance here involved puts the citizen in the arbitrary power of the officer regardless of the circumstances of the case. Its invalidity is so glaring that the respondent has not cited any authority to uphold it. In Bessonies v. City of Indianapolis, 71 Ind. 189, and in City of Elkhart v. Murray, 165 Ind. 304, supra, it was held that such ordinances are violative of the constitutional provision which guarantees the equal protection of the laws. It was there said that what the Legislature cannot do, it cannot authorize a municipal corporation to do.
In our opinion the ordinance in question is subject to the objection that it may deprive persons of the equal protection of the laws, and that, though the city may have a most meritorious case, it cannot be based on that invalid ordinance.
The judgment is reversed.
PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.