191 S.W.2d 612 | Mo. | 1945
Lead Opinion
The issue for determination is whether an ordinance of the City of Kansas City suppressing and punishing fortune telling as an offense is constitutional and valid. We answer in the affirmative.
Beulah Turner owns and operates a cafe in Kansas City and in connection therewith conducts a business "commonly known as fortune *861 telling" for pay. She instituted this suit to enjoin said City and certain individuals, officers of said City charged with the enforcement of its ordinances, from enforcing the provisions of Ordinance No. 10-14 (quoted in the margin*) prohibiting fortune telling for pay. Her bill was dismissed for failure to state a cause of action. She thereupon perfected this appeal.
Many issues are presented as bearing on the ultimate conclusion. Some may be eliminated. With commendable frankness counsel for plaintiff stated that if the provisions in the City Charter of Kansas City were valid, then "we are out." The primarily contested issue is the validity of the charter provision.
Article 9, Sec. 16, of the Constitution of the State of Missouri, provides: "Any city having a population of more than one hundred thousand inhabitants may frame and adopt a charter for its own government, consistent with and subject to the Constitution and laws of the State . . ." Section 7589, R.S. 1939, conforms to the quoted provisions.
The City of Kansas City adopted a charter under the quoted provision. Its charter, after defining what constitutes the municipal corporation of "Kansas City." provides in part as follows:
"Subject only to the necessary extent of limitations imposed by the constitutions and laws of the United States and the State of Missouri, it shall have power: . . .
"To regulate, prohibit, or suppress any act, conduct, pursuit, employment, practice, . . . whatsoever, which may be injurious or detrimental to the public morals, health, safety, comfort, convenience, prosperity or general welfare. . . . . . to regulate or prohibit . . . fortune tellers, clairvoyants and palmists, . . .: and to punish any and all persons who may engage in such game or games or who keep or frequent such houses or places, or who set up or permit the same, or who conduct lotteries, or sell lottery tickets . . ." Article I, Sec. 1, Para. 44, Charter of Kansas City. See also paragraphs 29, 61 and 63 of said section and article, they being more general in their terms.
Plaintiff's position is that the exercise of any "governmental power," such as an exercise of the police power here involved, by *862 municipalities operating under charters adopted under Art. 9, Sec. 16, of the Missouri constitution must be conferred by[614] statute, expressly or by necessary implication; and, hence, the attempt by Kansas City to arrogate to itself governmental power in its charter, absent an express statutory delegation of such power, is futile and void.
[1] Defendants state they recognize "that a municipality may not exercise a governmental function — taxation, police power — unless such power has been given, either by statute or by charter, and then only to the extent so given"; "that the power so given may be withdrawn by the State"; but they contend that "until it has been withdrawn the city has full power to proceed in any reasonable exercise thereof." The instant review may be determined on rulings short of the contentions advanced.
Plaintiff cites cases considering the different functions of municipal governments; that is, mere corporate functions and functions of a governmental nature. The latter embraces exercises of the police power, such as here involved, over which Missouri municipalities exercise delegated authority. The cases stressed are: State ex rel. Garner v. Missouri Kan. Tel. Co. (Banc, 1905),
The strongest of these cases supporting plaintiff is State ex rel. Garner v. Missouri Kan. Tel. Co., hereinafter designated the Garner case.* That was a mandamus proceeding to compel the Telephone Company to furnish Garner telephone service at the rate or charge established by an ordinance. A charter provision authorized the city, by ordinance, "to regulate the prices to be charged by telephone . . . companies . . ." The charter also contained a general welfare clause. The precise ruling of Court en Banc was that the Missouri Constitution (Art. 9, Sec. 16) did not authorize the adoption of charter provisions vesting the City with power to regulate, by ordinance, the charges for telephone service within the city; and, also, that specified statutes (Laws Mo. 1887, p. 51, Secs. 50 and 51, R.S. 1889, Secs. 1889, 1890) vesting the City with exclusive control over the streets and the regulating of the exercise of a public franchise *863 in the streets of the City were restricted to the purposes of municipal government, which was said to embrace the regulation of poles, wires and other obstructions to the end that the use of the streets by the telephone company would not unduly interfere with the use of the streets by the public; but that said statutes did not authorize the City to regulate the charge for telephone service. The opinion contains some broad observations. Making a distinction between corporate or municipal and governmental functions to be exercised by cities, the court stated the constitutional authorization (Art. 9, Sec. 16) was restricted to "powers incident to its municipality," municipal functions, and, that the State reserved the governmental powers (embracing powers "essential to the happiness and well being of the people of a particular city, yet which are not of a character essentially appertaining to the city government") "to be exercised by itself, or it may delegate them to the city, but until so delegated they are reserved." The court considered the issue before it to involve "the protection of the rights and regulation of the duties of the inhabitants in the city as between themselves." (189 Mo. l.c. 100, 88 S.W. l.c. 43.) The conclusion followed that the charter authorization to regulate the charge for telephone service was not authorized by Art. 9, Sec. 16, of the Constitution and said charter provision and the ordinance adopted thereunder were unconstitutional and void. However, in considering Sec. 50 of the Laws of 1887, supra, the Court stated: "The exclusive control of its streets as granted in section 50 is an attribute of municipal authority, and could have been adopted in the charter, under the authority of the Constitution, without the express [615] sanction of the General Assembly." (l.c.s. 101 and 43, respectively.)
Now: Long prior to the Garner case it was recognized that the regulation of the uses of public streets and highways for the protection of the public rested primarily in the State in the exercise of its police power — a governmental function. Ferrenbach v. Turner (1885),
The point to peg in the Garner case is: The court was ruling the validity of a charge for telephone service established by the municipality. The regulation of rates for telephone service operates upon *864
private property devoted to general public use. The Garner case viewed this in the light of an adjustment of rights and duties between individual citizens of the community. That power in Missouri, the regulation of such charges, was considered not to exist in municipalities unless expressly and specifically delegated by the State. See also St. Louis v. Bell Telephone Co. (1888),
State ex rel. Carpenter v. St. Louis (Banc, 1928),
Kansas City v. J.I. Case Threshing Mach. Co. (Banc, 1935),
"`Subject to,' that is, placed under the authority, the dominion of the constitution and laws of the State." Ewing v. Hoblitzelle,
"` . . . consistent with and subject to the Constitution and laws of the State' . . . means that inconsistent charter provisions or ordinances, concerning the exercise of governmental functions, are void." State ex rel. Rothrum v. Darby (Div. I, 1940),
We think the holding in Kansas City v. Frogge (Banc, 1944),
State ex rel. Reynolds v. Jost (Banc, 1915),
State ex rel. Field v. Smith (Banc, 1932),
The cases above mentioned establish, whether therein explicitly stated or not, that the language used in the Garner opinion is too broad wherein it requires an express delegation in every instance of governmental functions to municipalities operating under a constitutional charter. Kansas City v. J.I. Case Threshing Mach. Co.,
We hold plaintiff has failed to establish error.
[2] Defendants also assert that Kansas City is within the class of municipalities empowered by statutory delegation to ". . . enact all needful ordinances for preserving order, securing persons or property *867
from violence, danger and destruction, protecting public and private property and for promoting the general interests and insuring the good government of the city" et cetera. (Section 7644, R.S. 1939.) Plaintiff says the quoted provisions are subject to the rule of ejusdem generis and when so construed are not sufficiently broad but are limited, we understand, to the "suppression of mobs, foot-pads, burglaries, and other crimes of violence." So far as urged upon us by the City, not disputed by plaintiff, this is the only statutory delegation to Kansas City of municipal police power. The ascertainment of the intention of the lawmaker is the primary and fundamental factor in the construction of statutes. 59 C.J., p. 948, Sec. 568; 50 Am. Jur., p. 200, Sec. 223; West, Mo. Dig., Tit., Statutes, Secs. 180-186. We think it too narrow a construction to hold that the General Assembly intended to vest Missouri cities having between 200,000 and 500,000 inhabitants with full authority to protect against acts of violence to individual citizens and items of property, usually fully covered by state legislation, and withhold from them all the other innumerable governmental functions peculiarly within a proper exercise of the police power and so essential to the community life of a densely populated urban center; its public safety, health, morals, convenience, welfare, interest, and general prosperity, varying with the specific locality and the changing requirements of life from time to time. Plaintiff does not contend the words: ". . . all needful ordinances for preserving order" are limited by what follows. She contends the closing words "and for promoting the general interest and insuring the good government of the city" are limited by the particular preceding words. The quoted phrases are in harmony. We think, considered together, they evidence a legislative intent to delegate authority to the extent of the general words used. The police power extends to all great public needs. Ex parte Williams (Banc, 1940),
Plaintiff has failed to establish error on this contention of defendants.
[3] Plaintiff says that the ordinance as a whole is invalid because the second provision thereof is unreasonable; that is, the provision forbidding any person to "reveal or attempt to reveal future events *868
in the life of another"; admittedly not contending that the prior provision making it unlawful "for any person for pay to tell or pretend to tell fortunes" — the provision we hereinbefore have been discussing — is void because of unreasonableness. Plaintiff argues the questioned clause will prevent engineers advising contractors how to achieve given construction results; a physician advising a patient how to improve his health; a lawyer applying the law to facts related by his client; a scientist advising a manufacturer how to produce a synthetic product; a banker advising a customer he will extend credit; an inventor predicting he will enable people to overcome space at unheard of heights and speeds, and a radio genius predicting he will carry the human voice from city to city, state to state, and nation to nation. The ordinance provisions are quoted in the margin at the beginning of this opinion. Plaintiff is not engaged in any of the endeavors last above specified. Usually a litigant champions his own rights; not the rights of others. The ordinance, read as a whole, evidences a purpose to protect against deception and fraud through the suppression of the acts therein enumerated. Insofar as the matters mentioned by plaintiff are the result of legitimate business endeavors, they are without the pale of the ordinance provisions. [618] Plaintiff's position twists the language and warps the manifest purpose of the ordinance. It is without merit. Plaintiff's contentions are founded upon the ordinance invoking the police power. Individual personal and property rights are subordinate to an appropriate exercise of the police power. Bellerive Inv. Co. v. Kansas City,
The judgment is affirmed. Westhues and Barrett, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.
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