source: Caselaw Access Project

author: BURGESS, J. —

license: Public Domain

text:
    CITY OF ST. LOUIS v. G. H. WRIGHT CONTRACTING COMPANY and CITY TRUST, SAFE DEPOSIT AND SURETY COMPANY of Philadelphia, Appellants.
    Division Two,
    March 17, 1908.
    1. BENEFIT ASSESSMENT: Contractor: Breach: Suit by City as Trustee. A city cannot sue as the trustee of the property-owners a contractor who has failed to perform his contract to improve a street, for the excess they have had to pay for said improvement, nor can it as such trustee sue for such excess the sureties on the contractor’s bond which obligated him to “faithfully and properly perform the foregoing contract according to all the terms thereof” and to “pay to the proper parties all amounts due for material used and labor employed.” [Following St. Louis v. Wright Contracting Co., 202 Mo. 451.]
    .2. JUDGMENT AND PETITION: Surplusage. The petition is as much a part of the record on appeal as is the judgment, and if the judgment is not authorized by the allegations in the petition it is erroneous. Nor do the statutes authorize an amendment of the petition by striking out an allegation relied on as a basis of the cause of action, nor do they authorize the court, for the purpose of upholding the judgment, to disregard such allegation as mere surplusage.
    3. -: -: Suit as Trustee: Property-Owner: Benefit Assessment: Abandonment: Personal Judgment. Where the city sued on the contractor’s bond as trustee for the property-owners for the excess they were required to pay for a public improvement above what they would nave been compelled to pay had the contractor performed his contract at the prices designated in his contract, it cannot, after judgment rendered in its favor, in order to avoid the fatal effect of such erroneous theory of recovery, abandon all the allegations of its petition which based its right to recover on the existence of such trusteeship, ask the court to disregard those allegations as surplusage, argue that the bond was made with the city for the personal benefit and indemnification of the city, and ask that the judgment be permitted to stand. It cannot sue as a trustee and recover a personal judgment. That would be an abandonment of the cause of action on which it recovered judgment, and the substitution of an entirely different judgment.
    4. APPEAL: Theory of Trial. A cause must be heard and disposed of in the appellate court upon the same theory as that upon which it was tried below. No other theory is possible.

      Appeal from St. Louis City Circuit Court. — Roto. Moses N. Sale, Judge.
    Reversed.

      Seddon & Holland and Fidelio C. Sharp for appellants.
    (1) "Where an action is brought by a trustee for the benefit of third persons, they are the real parties, and the trustee has no individual interest in the action unless he is a co-beneficiary, expressly or of the same class, and then he has no- greater or other interest than the other members of the class. St. Louis v. Gr. H. Wright Contracting Co., 202 Mo. 451; Natl. Bk. v. Ward, 100 U. S. 19'5; Lewis v. Land C'o., 124 Mo. 672; Rogers v. Gosnell, 58 Mo. 589; School v. Lewis, 147 Mo. 580; Crone v. Stinde, 156 Mo. 262; Ammonet v. Montague, 75 Mo. 43; St. Louis v. Yon Phul, 133 Mo. 561. (2) The lot-owners, not being mentioned as parties to the contract, cannot be made so by implication. There can be no implication to bind the defendant trust company, who is a mere surety. St. Louis v. G. H. Wright Contracting Co., 202 Mo. 451; Myers v. Parks, 6 Ohio St. 501; Harrisonville v. Porter, 76-Mo. 356; State v. Boon, 44 Mo. 354; State v. Johnson, 55 Mo. 80. (3) The city in making the contract was not acting as agent of the lot-owners or any third persons. St. Louis v. Wright Contracting Co., 202 Mo. 451; Thornton v. Clinton, 148 Mo. 663; Sweeny v. Kansas, 50 Mo. App. 265; Steffen v. City, 135 Mo. 144; Heft v. Payne, 97 Cal. 108; Scott v. Springfield, 81 Mo. App. 312. (4) The city in making the contract was not acting as the trustee of an express trust for the lot-owners or others. St. Louis v. Wright Contracting Co., 202 Mo. 451; Burton v. Larkin, 36 Kan. 246; Wright v. Terry, 23 Fla. 160; Smith v. Brown, 68 N. Y. 355; Porter v. Woods, 138 Mo. 539; Street v. G-oodale, 77 Mo. App. 318; Devers v. Howard, 144 Mo. 671; State v. Loomis, 88 Mo. App. 500; Anderson v. Fitzgerald, 21 Fed. 29'4; Barbour v. Eailroad, 49 La. Ann. 1608; Loeber v. Eailroad, 41 La. Ann. 1157; City v. Westar, 35 Pa. St. 427; Emery v. Bradford, 29 Oal. 83; Himmelman v. Spargel, 39 Gal. 389; City v. Peeot, 38 Mo. 125; Howsmon v. Trenton, 119 Mo. 304; Berker v. Water Works Co., 79 Iowa 419. (5) Tbe petition does not show tbat any valid taxbills were ever issued or tbat any valid liens were ever created. Eeed v. Bott, 100 Mo. 62; Burnham v. Boyd, 167 Mo. 185; Yieth v. Planet, 64 Mo. App. 210; St. Louis v. De Noue, 44 Mo. 137; Kansas v. Surety Co., 71 Mo. App. 315; Mallinckrodt v. Nemnich, 169 Mo. 507; North St. Louis v. O ’Bert, 169 Mo. 507; Hoester v. Sammelson, 101 Mo. 619; Wilson v. Polk County, 112 Mo. 126.'

      Charles W. Bates and Benjamin H. Charles for respondent.
    Tbe plaintiff in this action is tbe city of St. Louis. Such is tbe caption of tbe petition. Such also is tbe substance of tbe petition, viz: tbat defendants bound themselves . . . unto tbe city of St. Louis. Tbe judgment rendered followed tbe caption and tbe substance of tbe petition, and, in effect, disregarded tbe allegation tbat plaintiff sues as a private trustee for lot-owners, and would account to them. Tbe form of tbe judgment is, therefore, technically correct, even under St. Louis v. Wright, 202 Mo. 451; and no regard need be bad to this allegation. If, however, tbe court sees fit to go behind tbe form of tbe judgment, it may direct an amendment of tbe petition by striking out this surplus allegation to make it conform technically to tbe theory tbat tbe city sues in its corporate capacity as tbe representative of the public. E. S. 1899, secs. 660; 672, 673; Beattie v. Lett, 28 Mo. 596; Cruchon v. Brown, 57 Mo. 38; Kansas City Hotel Co. v. Sauer, 65 Mo. 279; Weil v. Simmons, 66 Mo. 619'; Bank to use v. Gilpin, 105' Mo. 17; State ex rel. v. Walbridge, 153 Mo. 194; Hunter v. Bank, 158 Mo. 262; Matney v. Gregg, 19 Mo. App. 107; Witte Iron Wks. v. Holmes, 62 Mo. App. 372; State v. Bookstruck, 136 Mo. 360. See, also, tke similar cases of: Bledsoe v. Simms, 53 Mo. 305; Cooper v. Ord, 60 Mo. 430; Snell v. Harrison, 83 Mo. 651; Mueller v. Kaessmann, 84 Mo. 332; Crispen v. Hannovan, 86 Mo. 168; Orr v. Rode, 101 Mo. 400; Bouton v. Pippin, 192 Mo. 469. Appellants do not skow tkat tkis allegation materially affects tke merits of tke action. R. S. 1899, sec. 865; Olney v. Eaton, 66 Mo. 563; Thompson v. Ins. C'o., 114 Mo. App. 119. (1) St. Louis v. Wrigkt, 202 Mo. 451, is not an authority against our position; but, on tke contrary, seems rather to take it for granted tkat tke city may recover substantial damages, in its corporate capacity, for tke breaches of these bonds, although tkat case holds tkat it cannot do so in tke capacity of trustee for tke owners of lots. (2) Adding to tke conditional clause of tke bond a provision in favor of third persons, not parties thereto, cannot have tke effect of taking away from tke obligee of tke bond its right to sue. Tke only effect of the former Wrigkt case is to deny an action to any third persons who were not parties to tke contract. St. Louis v. Wrigkt, 202 Mo. 451. (3). Tke city acts in tke interest of tke public at large. Whether, therefore, tke lot-owners who have paid increased taxbills can be represented by tke city or not is immaterial. St. Louis v. Wrigkt, 202 Mo. 462. (4) Tke charter powers of St. Louis are so broad tkat tke city has tke same right, in order to secure good work, to require of contractors any guaranties tkat private persons may take. And municipal officers who should neglect to take some kind of guaranty of tke perfection of tke work would be derelict in their duty. Bank v. Woesten, 147 Mo. 479'. (5) The law itself, in the charter of the city, requires a bond, not for merely nominal damages (as would be the effect if defendants’ contentions are sustained) but for a substantial thing, namely, compliance with the provisions of the contract. “No contract shall be made . . . without a bond for its faithful performance.” Charter, art. 6, sec. 27; R. S. 1899, p. 2514; R. S. 1899, sec. 6761.
   BURGESS, J. —

This is a suit for damages for breach of certain contracts and bonds for the doing of certain public work in the city of St. Louis. The petition cordains five counts, each based upon a separate contract. The contracts differ only in respect to dates, penalties; and the character and quantity of the work to be performed under each, and the several counts of the petition are varied to meet these minor differences. It will, therefore, be only necessary to refer to one, the first count of the petition, which alleges in substance:

That on the 28th day of June, 1900, the defendant contracting company, as principal, and the defendant surety company, as security, entered into a bond and writing whereby they bound themselves unto the city of St. Louis in the penal sum of $5,529.05, which said bond was subject to the conditions that if the defendant contracting company should faithfully and properly perform the contract preceding the bond, and of which the bond forms a part, according to the terms of said contract, and should, as soon as the work contemplated by the contract was completed, pay to the proper parties all amounts due for material and labor used and employed in the performance of the contract, then the obligation should be void, otherwise to remain in full force and effect. That the contract was entered into on the 28th day of June, 1900, and by its terms the defendant contracting company undertook and agreed with plaintiff to do and perform the work of reconstructing a certain portion of Easton avenue, and to furnish all the work, labor, materials and appliances necessary therefor, said work to be done in conformity with the plans on file in the office of the street commissioner and in strict obedience to his directions.

The petition sets out the items of the work to be performed and the prices to be paid therefor, and then states that plaintiff was to pay for the work and materials in special taxbills against the lots of ground adjoining Easton avenue in proportion to their frontage on the improvement. Continuing, the . petition states that the defendants did-not perform the conditions of their contract, and bond, but failed, neglected and refused to commence work as requested in writing dated October 8, 1900', and in subsequent notices, and failed to. comply with the specifications and stipulations of said contract in that said defendant contracting company failed and refused to perform the work or any part thereof, but abandoned both the work and contract; whereupon, plaintiff annulled and canceled said contract in the manner provided for in such case by the terms thereof. That thereupon the Board of Public Improvements of the city of St. Louis, in accordance with the terms of said contract, proceeded to relet the work to J. E. Perkinson, who was the lowest and best'bidder for the same, and proceeded to have the work completed by said Perkinson; but that plaintiff was compelled to pay said Perkinson, in the manner provided for by said contract with the defendant contracting company, certain prices and amounts for such work, all of which the petition sets forth in detail. Then follows the allegation that, under the said contract with the defendant contracting company, said defendant, for all of the materials and labor employed, would have been entitled to receive, at the prices fixed by the contract, the total amount of $6,772.16, but that plaintiff was compelled to pay to said Perkinson for the performance of the same work and furnishing the same materials the aggregate amount of $6,835.46, or the sum of $63.30 oyer and above' the sum for which the defendant contracting company agreed to perform and furnish the same; that the payments so made by plaintiff were, in conformity with said contract, made in special taxbills duly issued by plaintiff to said Perkinson.

The petition further states “that plaintiff brings and maintains this suit as the trustee of an express trust for itself and the owners of the several lots of ground against which the said' several taxbills were issued; and plaintiff in the event of recovery will distribute any amounts recovered among the owners of the several lots charged with the cost of the aforesaid improvements in the same proportion in which the said several owners were compelled to contribute for the -cost of said improvements.” That, “by reason of the breach of the contract on the part of said defendant, Gr. H. Wright Contracting Company, and its failure and the failure of defendant City Trust, Safe Deposit •& Surety Company of Philadelphia, to observe and fulfill the conditions of their said bond, the plaintiff, as trustee as aforesaid, has sustained and suffered -damages in the said sum of $63.30.”‘

Plaintiff prays judgment for the penalty of the bond, and asks that execution issue for the sum of $63.30', with interest and costs.

The defendants filed their answer to the petition, ■and to each count thereof, which answer admits that •defendants “entered into a bond whereby they bound themselves to the city of St. Louis in the penal sum stated, subject to the conditions thereunder written as stated in said count, but the defendants deny each and •every other allegation in said count not hereinbefore specifically admitted.” Defendants also-set up in said answer certain separate and affirmative defenses to each count of the petition, but the same are waived by them on this appeal.

The case was referred by the court to a referee, who heard the evidence and filed his report and findings. The referee found for the defendants and against the plaintiff in its alleged capacity of trustee of an express trust, and found for the plaintiff and against the defendants on each count'of the petition for the penalty of the bonds, and recommended judgment in favor of the plaintiff for nominal damages only.

Plaintiff filed exceptions to the referee’s report, which were sustained"by the court, and judgment was entered up in favor of plaintiff and against both defendants for the sum of the amounts prayed for in the several counts of the petition, to-wit, $10,033-.71, together with interest, which increased the judgment to $12,023.72.

The defendants duly excepted to the action of the court in rendering said judgment, and filed their motions for a new trial, which being overruled, they saved their exceptions and appealed.

The conditions of the bond are not fully set out in the petition, the language of the bond being as follows :

“In the event the said G. H. Wright Contracting Company shall faithfully and properly perform the foregoing contract according to all the terms thereof, and shall, as soon as the wort contemplated by said contract is completed, pay to the proper parties all amounts due for material and labor used and employed in the performance thereof, then this obligation to be void, otherwise of full force and effect, and the same be sued on at the instance of any material man, laboring man or mechanic, in the name of the city of St. Louis to the use of such material man, laboring man or mechanic, for any breach of the condition hereof.”

This ease, in all its salient features, is on all-fours with the case of St. Louis v. Wright Contracting Co., 202 Mo. 451, and that ease, under ordinary circum-' stances, would be res adjudicata of this. Counsel for plaintiff disclaim any disposition to reopen the question presented and passed upon in that case, to the effect that the city of St. Louis could not sue as the trustee of a private trust for lot-owners to recover the excess paid by them in special taxbills, due by reason of the defendant’s default and abandonment of. certain contracts to improve certain streets and alleys in said city; but, as if to evade the ruling in that case, they now argue and insist that the whole bond, including the provisions on which this suit is based, was made with the city for the personal benefit and indemnification of the city, and to which no third persons, except materialmen, mechanics and laborers who are specially named, are parties; that the suit was one prosecuted by the city for its personal benefit, and that the judgment was intended to be and is for the city and for its personal benefit, and that all of the allegations in the petition and record to the contrary are mere surplusage and ought to be stricken out to conform to that idea; that as the judgment rendered followed the caption and substance of the petitio'n, and in effect disregarded the allegation in the petition that plaintiff sues as a private trustee for lot-owners and would account to them, it was, even under the ruling in St. Louis v. Wright Contracting Co., supra, technically correct in form, and no regard need be had to this allegation. Plaintiff suggests that if the court sees fit to go behind the form of the judgment, it may direct an amendment of the petition, by striking out this surplus allegation, to make it conform technically to the theory that the city sues in its corporate capacity as the representative of the public.

The petition is as much part of the record in this case as is the judgment, and if the judgment rendered is not authorized by the allegations in the petition, it is of course erroneous. Those parts of the petition which plaintiff asks to be disregarded, in affirmance of the judgment, under sections 660, 672 and 673, Revised Statutes 1899, and authorities cited, are as follows:

“The plaintiff now brings and maintains this suit as the trustee of an express trust for itself and the owners of the several lots of ground against which the said several taxbills were issued; and plaintiff, in the event of recovery, will distribute any amounts recovered among the owners of the several lots charged with the cost of the aforesaid improvements in the same proportion in which the said several owners were compelled to-contribute for the cost of said improvement.
“Plaintiff says that by reason of the breach of the contract on the part of said defendant, G. H. Wright Contracting Company, and its failure, and the failure of defendant City Trust, Safe Deposit & Surety Company of Philadelphia, to observe and fulfill the conditions of their said bond, the plaintiff, as trustee •as aforesaid, has sustained and suffered damages in the said sum of $63.30."

These were among the most important allegations of the petition, and it was upon these same allegations that it was held in St. Louis v. Wright Contracting Co., supra, that plaintiff could not recover. Under the statutes and authorities referred to by plaintiff, this court has power after final judgment rendered in any cause, in furtherance of justice, and upon such terms as may be just, to permit the amendment, in affirmance of such judgment, of any record, pleading or process, by adding or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by rectifying defects or imperfections in matter of form; but the statute does not authorize an amendment by striking out an allegation relied upon as the basis of the cause of action, as in this case, and which was not inserted in the petition by mistake or inadvertence. If plaintiff has the right to abandon, in this court, said allegations, in furtherance of justice and in affirmance of the judgment, it is difficult to conceive of an amendment that might not be made, by adding to or striking from any pleading in a cause, in confirmation of a judgment. The statute specifies what pleadings and proceedings in a cause may be amended in affirmance of a judgment, but it nowhere authorizes the amendment of the petition upon which the judgment was rendered by the abandonment of the cause of action upon which predicated, and then the substitution for the original of an entirely different judgment upon the petition as amended.

All of the cases cited and relied upon by plaintiff as supporting its contention that it has the right to amend the petition by abandoning the parts heretofore indicated have reference to some matter specified in the statute, or which fairly came within its provisions; but none of them goes so far as is sought to be done in this case. Moreover, the case was tried upon a theory entirely different from that upon which plaintiff now seeks to submit it; that is, that the provisions of the general contract filed with the petition as an exhibit, for the breach of which the suit is prosecuted, was a contract between the defendants and the lot-owners, and that they were entitled to recover for the breach as parties thereto. It needs but a casual reading of the pleadings, and the proceedings before the referee and the court, to show that such was the ease, and the case must be tried in this court upon the same theory as in the court below. Had the city claimed that the bond was one of mere indemnity to it, and that it had been violated, the defendant might have shown, or at least been offered the opportunity of showing, that it had a defense against the city which it could not successfully interpose against the lot-owners. But as the petition calls for no such defense, it would be the greatest injustice to permit the plaintiff to change its position in this court and ask that a judgment supposed by the court below to have been rendered in favor of the lot-owners be affirmed as one in favor of another party.

It is well settled that a cause must be heard in the appellate court upon the same theory as that upon which it was tried in the trial court. [Walker v. Owen, 79 Mo. 563; Minton v. Steele, 125 Mo. 181; Dice v. Hamilton, 178 Mo. 81; Meyer Bros. Drug Co. v. Bybee, 179 Mo. 351.] And it may be said that no other theory is possible. Tried in this court, as it must be, upon the same theory it was tried in the court below, the able and exhaustive opinion of Judge Woodson in St. Louis v. Wright Contracting Co., supra, covers all the points at issue in this case. Following the law as declared in that case, the judgment is reversed.

All concur.


author: BITRGrESS, J. —

text:
    CITY OF ST. LOUIS, Plaintiff in error, v. JACOB GLONER.
    Division Two,
    March 17, 1908.
    1. LOAFING ON STREET: Personal Liberty: City Ordinance: Unconstitutional. Loafing, standing and lounging around and about and at certain public street corners, without interfering with the rights of any other person or in any wise engaging in disorderly conduct or disturbing the public peace, is not a public offense, and an ordinance so declaring is an interference with personal liberty, and is unreasonable and oppressive, and to that extent unconstitutional.

      2. -: -: -: -: Strikers’ Picket. A strike was on and defendant stood at tke street comer for two hours for each of several days and requested' men not to take the strikers’ places. He was engaged in what was termed “strikers’ picket duty,” which consisted in requesting men not to take the places of strikers. He was not talking to any one, or obstructing the sidewalk, or disturbing the public peace, or engaged in any disorderly conduct. Held, that his conviction under an ordinance declaring that “any person who shall lounge, stand or loaf around or about or at street comers or other public places shall be deemed guilty of a misdemeanor,” would be invalid, the ordinance itself being invalid as an interference with the personal liberty guaranteed by section 4 of article' 2 of the Constitution of this State.
    S. -Two Hours: Personal Right. Any citizen has the right for his own private purposes, whatever they may be, -to take his stand for a period of two hours each day upon a particular portion of the public street in a great and populous city, provided he conducts himself in a peaceful, orderly manner, disturbs no one, and commits no overt offense.
    Error to St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.
    AiTIEMED.

      Charles W. Bates and Charles P. Williams for plaintiff in error.
    (1) The city of St. Lords is given power by its charter “to construct and keep in repair all bridges, streets, sewers and drains, and to regulate the use thereof.” Charter, art. 3-, sec. 26, cl. 2. The power which the State primarily has over streets and highways in the State or. in any city of the State has in St. Louis been delegated to that city. State ex rel. v. Railroad, 151 Mo. 183. The words “to regulate the use thereof” are of broad import and confer comprehensive power upon the city. Sluder v. Railroad, 189 Mo. 129; St. Louis v. Tel. Co., 149 TJ. S'. 4691 In the very nature of things, a city vested with such a power of regulation not only has the right, but it is its duty, to enact measiures prohibiting conduct that tends unreasonably and unnecessarily to obstruct and impede the physical ■width and freedom of the entire street for purposes of public passage. No member of the body politic has any right to make any use of a public street unless it be such a use as is necessarily involved in and essentially incident to the fair and reasonable use of the street for purposes of passage by him as a member of the public. The city has no power to license occupancy or use of the street for any private purpose whatsoever. State ex. reí. v. Vandalia, 119 Mo. App. 417;. Schopp v. St. Louis, 117 Mo. 131; State ex. rel v. St. Louis, 161 Mo. 371; Brown v. Railroad, 137 Mo. 529; Coal Co. v. Coal Co., 62 Mo. App. 93. John Smith, as a member of the public, has no right for his own private purposes, whatever they may be, to take his stand for a period of two hours every day upon a particular portion of the public street in a great and populous city. If John Smith has such a right, then William Jones has an equal right for two or three or four hours to take his stand by the side of John Smith for the purpose of furthering his own particular ends. And if these two have the right, any hundred or thousand others acting not in concert, but each in the individual pursuit of his own purposes, can congregate on the same street corner, or on the same street, with no community of action, and with no community of purpose. The result of these entirely separate and unconnected acts is that the street is impassably blockaded. Now, whatever offense or wrong to the public has been committed under these circumstances, cannot be held as a joint charge against the individuals concerned, because we cannot charge nor prove any concert whatever or any community of purpose or design among the persons whose confluence and gathering together creates-the blockade and obstruction. Whatever offense, then, has been committed, is committed by each individual who undertakes, contrary to the inhibition of the law,, to use the street for other purposes than those for which the street was designed and for which it is being maintained by the State and by the city, namely, those necessarily and fairly incident to public passage. It is not' so much the purpose with which such an action may be done, as the effect of the act itself, which is intended to be guarded against. The acts of the defendants in this casé may have been and probably were directed by a high sense of their duty to themselves and to the cause which they represented, but in their actions they have overstepped, as the evidence plainly shows, their legal rights. (2) The ordinance does not. undertake to prohibit a casual stopping or waiting upon the public street or upon a public corner for any temporary purposes connected with and fairly incident, to the use of the highway as a means of public passage. The city probably could not undertake to prevent any such use as is fairly incident 'to or fairly implied in the nature of a street. But the defendants in these cases do not claim to have been making any such use of the public street. For two hours every day for a period of eight or ten days they made the public street and a particular corner thereof the theatre and scene of their own private purposes. They were not in a position therefore to test the question of the reasonableness or unreasonableness, the validity or invalidity, of the ordinance upon the ground suggested above ; but even if they were the city clearly has a right, under its power to regulate the use of its streets, to prohibit persons from lounging, standing and loafing around or about street corners. It has the right to prohibit one person from doing this, because if it has not the right to prevent one person, then it has not the right to prevent a hundred persons acting separately and individually and with no concert of action or purpose; and to take this position would be a rank reductio ad absurdum.

      C. J. Anderson for defendant in error.
    (1) The “report of the Chief of Police” on which this action is founded does not state facts sufficient to constitute a cause of action against this defendant. State v. Meyers, 174 Mo. 352; Ex parte Smith, 135 Mo. 232. (2) There was no evidence tending to prove any overt act on the part of defendant, and the finding and judgment of the judge of the court below and his discharge of the defendant should, under the law and the evidence, be sustained. State v. Meyers, 174 Mo. 352; Clothing Co. v. Watson, 168 Mo. 133. (3) The ordinance is unconstitutional in that it evades the right of personal liberty, is unreasonable and oppressive. Secs. 4 and 3Q, art. 2, Constitution of Mo.; St. Louis v. Roche, 128 Mo. 541; Pinkerton v. Verrberg, 78 Mich. 573.
   BITRGrESS, J. —

This was a prosecution under section 1460 of - the Municipal Code of the city of St. Louis, which reads as follows:

“Any person who shall, on Sunday or any other day of the week, disturb the peace by any noisy, riotous or disorderly conduct in any park, street, alley, highway, thoroughfare or other public place or public resort for pleasure or amusement or other purposes, or any person or persons who shall lounge, stand or loaf around or about or at street corners or other public places, in the day or night time, or who shall use indecent, loud or profane language on the public street or other public place or who shall purchase or otherwise obtain any beer, wine or spirituous- or malt liqnors by the measure or in quantities greater than one-half pint, and drink the same -upon the public streets, alleys, parks, or other public thoroughfares or places in the city, shall, he deemed guilty of a misdemeanor, and, upon conviction thereof, before either of the police justices, shall be fined in the sum of not less than five or more than fifty dollars. The above provision not to apply to workingmen drinking beer at lunch or dinner at their places of work.”

The information substantially charges that the defendant violated said ordinance on the 4th day of August, 1904, and on divers'other days and times prior thereto, by unlawfully lounging, standing and loafing around and about and at certain public street corners and other public places, to-wit, Eleventh street and Washington avenue, in the day and nighttime, in the city of St. Louis.

This case was first tried in one of the police courts of said city, whence an appeal was taken to the St. Louis Court of Criminal Correction.

The testimony tends to show that on August 4, 1904, there was a strike of the employees of the Harris Bros. Clothing Company, whose place of business was at 1128 Washington avenue, in the city of St. Louis, and that defendant and three other strikers were, doing what is termed “picket duty” at the corner of Eleventh street and Washington avenue, near the business place of said clothing company.

Officer Pierson, who arrested defendant on said August 4th, testified that he had seen defendant at the corner of Eleventh street and Washington avenue the morning he arrested him, and had seen him there on prior mornings and evenings. The police officer further testified as follows:

“Q. Was he doing anything but standing on the corner? A. No, sir.
“Q. Was he blocking the corner? A. No, sir.
“Q. How wide is the sidewalk there? A. Ten or twelve feet.
“Q. He was standing on the sidewalk on the corner, and you told him to move on? A. Yes, sir.
“Q. He wasn’t talking to anyone? A. No, sir..
“Q. There was a strike on, and these men were-simply doing what is called picket duty? A. Yes, sir..
“Q. As I understand, picket duty consists in standing around comers and requesting men not to-take strikers’ places. A. Yes, sir.
“Q. That was what this man was doing as they came from, work in the evening? A. Yes, sir.
“Q. In other words, during this time there was. nothing in his action that you as a police officer deemed it necessary, to arrest him for? A. I watched him for two or three days.
“Q. You made the arrest not because he was obstructing the sidewalk, but because he was doing picket, duty? A. Because he was doing picket duty, and I was informed that they must stop it. ’ ’

The witness further testified that he saw the defendant stop and talk to some of the employees of the-company against which the strike was directed. Three-other witnesses, employees of the said company, testified to seeing the defendant standing on the street corner several mornings and evenings before the day he was arrested.

At the close of the city’s case the defendant moved the court to discharge him, on the ground that the evidence introduced by the city was insufficient to support: a conviction, which motion was sustained, and the court, rendered judgment discharging the defendant.

Plaintiff filed motion for a new trial, which was overruled by the court. The case is before this court upon a writ of error.

While the city of St. Louis is given power by the second clause of section 26, article 3, of its charter, to regulate the use of its streets, the question here presented is as to whether it had the right, under the provisions of its charter, to pass the ordinance upon which this prosecution is based, and which makes it a misdemeanor, punishable by fine, for any person to lounge, stand or loaf around or about or at street corners or other public places, in the day or night time.

There is no pretence that defendant was at the time of this arrest in any way obstructing the street, or interfering with the rights of any other person, or conducting himself in a disorderly manner; the only charge against him being that he violated said ordinance on the 4th day of August, 1904, and on divers other days and times prior thereto, by unlawfully lounging, standing and loafing around and about and at certain public street corners and other public places, to-wit, Eleventh street and Washington avenue, in the day and night time. While the city has the undoubted right, under its charter, to regulate the use of its streets, it has no right to do so in a way that interferes with the personal liberty of the citizen as guaranteed to him by our Constitution and laws. Under this ordinance it is just as much an offense to stand or loaf around upon the comer of one of the streets in the city for five minutes as for two hours or more, time not being an ingredient of the offense, and this, too, regardless of the fact that the offender may not during that time impede the passage of other pedestrians or otherwise interfere with the rights of others. The defendant had the unquestioned right to go where he pleased and to stop and remain upon the corner of any street that he might desire, so long as he conducted himself in a decent and orderly manner, disturbing no one, nor interfering with any one’s right to the use of the street. Is the ordinance in question, then, restrictive of or in violation of the right of personal liberty guaranteed to every citizen by section 4, article 2, of the Constitution of this State?

In St. Louis v. Roche, 128 Mo. 541, a city ordinance making it an offense for any one to knowingly associate with persons having the reputation of being thieves, gamblers, etc., for the purpose of aiding and abetting such persons in their unlawful acts, was held invalid because an invasion of personal liberty. That case was followed in Ex parte Smith, 135 Mo. 223.

In the ease of Pinkerton v. Yerberg, 78 Mich. 573, it is said: “Personal liberty, which is guaranteed to every citizen under our Constitution and laws, consists of the right of locomotion, — to go, where one pleases, and when, and to do that which may lead to one’s business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens there, they will be protected under the law, not only in their persons, but in their safe conduct. The Constitution and the laws are framed for the public good, and the protection of all citizens, from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. Any law which would place th% keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees. These are rights which existed long before our Constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land.”

It is, however, said for the city that “John Smith, a member of the public, has no right for' his own private purposes, whatever they may be, to take his stand for a period of two hours every day upon a particular portion of the public street in a great and populous city. ’ ’ That he has such right there can, in onr opinion, he no question, providing he conducts himself in a peaceful, orderly manner, disturbs no one, and commits no overt act. In this case, according to the testimony of the officer who made the arrest, he arrested the defendant for the purpose of preventing him from doing “picket duty,” which, as explained by the court, consisted in requesting men not to- take the places of strikers.

In the case of Marx & Haas' Jeans Clothing Co. v. Watson, 168 Mo. l. c. 150, Judge Sherwood, speaking for the court, said: “If these defendants are not permitted to tell the story of their wrongs, or, if you please, their supposed wrongs, by word of mouth or with pen or print, and to endeavor to persuade others to aid them by all peaceable means, in securing redress of such wrongs, what becomes of free speech, and what .of personal liberty 1 The fact that in exercising that freedom they thereby do plaintiff an actionable injury, such fact does not go a hair towards a diminution of their right of free speech, etc., for the exercise of which, if resulting in such injury, the Constitution makes them expressly responsible.”

In passing upon a similar question in the case of Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, this court, said: ‘‘ They are free men, and have a right to quit the employ of plaintiffs whenever they see fit to do so, and no one can prevent them - and whether their act of quitting is wise or unwise, just or unjust, it is nobody’s business but their own, and they have a right to use fair persuasion to induce others to join them in their quitting.”

In Beaton v. Tarrant, 102 Ill. App. 124, it was held that workmen may use the streets and highways in a manner not inconsistent with public travel, for the purpose of entreaty, inducement and peaceable persuasion in good faith. The same rule practically is anuounced in Karges Furniture Co. v. Amalgamated Woodworkers Local Union, 165 Ind. 421, in which it is said: “Argument and peaceable persuasion are lawful means to prevent laborers from working for an -employer against wbom tbe labor union bas ordered a .strike.”

Our conclusion is that tbe ordinance is unconstitutional and invalid because it infringes upon tbe right of personal liberty, and is unreasonable and oppressive. Tbe judgment is affirmed.

All concur.