source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE ex rel. ST. LOUIS TRANSFER COMPANY, Appellant, v. PATRICK J. CLIFFORD, License Collector.
    Division Two,
    May 26, 1910.
    1. EVIDENCE CONTRADICTORY OF SENSES: Wagon Tires. Testimony which contradicts and contests the evidence of the senses should be received with caution. It is contrary to common experience that wagon tires do not normally travel on the full face thereof, but only on their outer edge; and courts will not be visionless. And on appeal, though a majority of witnesses have testified that wagon tires normally travel on their outer edges, that will not be held to have been established as a fact.
    2. WIDE WAGON TIRES: Injury to Streets. An ordinance requiring wagons to have wide tires will not be held to be unreasonable on the theory that they result in a positive injury to streets.

      3. -: -: Reasonableness. Where the reasonableness of a municipal ordinance is in issue, all reasonable doubts are resolved in favor of the municipality. An ordinance requiring wagons, having axles of a specified diameter, to have tires of not less than a specified width, is not unreasonable, and will not be declared invalid on the theory that it is unreasonable and oppressive and works a hardship on a transfer company.
    4. -: Invalid Ordinance: Heavy Transportation: All Vehicles: Separable Parts. But where the charter gives the city the right to regulate by ordinance “the width of the tires of all vehicles for heavy transportation,” an ordinance which embraces vehicles of every kind and description, whether for light or heavy transportation, and requires the width of tires-of all vehicles to conform to a fixed schedule for width of" tires, is invalid. And as the proviso in which this invalid part: of the ordinance is found is inseparably connected with the-rest of the section and has a general influence over it, it. cannot be held to be a valid regulation of the width of tires; of wagons used in heavy transportation, and the whole section is invalid.
    5. -: -: -: Special and General Charter Provision: Exception. And since the charter gives the municipal assembly power to regulate by ordinance “the width of tires of all vehicles for heavy transportation,” an ordinance that applies to all vehicles alike cannot be upheld on the theory that this express power is merely a corollary of a general power (granted to the city by another paragraph of the same section of the charter) to improve the streets and regulate the use thereof. The special provision is an express grant of power for a certain purpose, and must be strictly construed, and the city’s power of legislation is limited to the object specified, all others being excluded by implication. The rule is that where there are two. charter provisions, one of which is special and particular and cértainly includes the matter in question, and the other is. general, and such that, if standing alone, it would include the same matter, and thus conflict with the special provision, the-special must be taken as intended to constitute an exception to the general provision and to limit its application, and especially is this true when the two provisions are contemporaneous.
    Appeal from St. Louis City Circuit Court. — Hon. Matt. ■ G. Reynolds, Judge.
    Reversed and remanded (with directions).

      Randolph Laughlin and Lehmann S Lehmann for appellant.
    (1) Where compliance has been, made with the requirements specified by law for procuring a license, and the officer in whom authority is lodged refuses.to issue the license, he may be compelled to do so by mandamus. St. Louis v. Wetzel, 136 Mo. 620'; Ex parte Lucas, 160 Mo. 227; State ex rel. v. Ruark, 30 Mo. App. 325. (2) It was the respondent’s duty to issue vehicle licenses to the appellant on demand, or to give appellant a statement that upon payment of the amount of the licenses the license receipts would be issued to it. Laws 1901, p. 81, sec. 5. (3) The proviso of section 1708 of the Municipal Code is void in that it conflicts with the fifth paragraph of section 26 of article 3 of the city charter. Said section of said charter limits the power of the municipal assembly to the regulation of the width of tires of vehicles for heavy transportation. The specific grant of power given by this paragraph of the charter is exclusive, and excludes the idea that any power to regulate the width of tires is to be found implied as an incident to any general grant. St. Louis v. Kaime, 180 Mo. 317; City v. Telephone Co., 96 Mo. 628'. (4) The proviso of section 1708 of the revised ordinances attempts to regulate the width of tires of “all.vehicles of every kind or description used on the streets of this city for any purpose whatever,” having axles in excess of one and one-fourth inches in diameter, and not having rubber tires. Either the assembly wholly lost sight’ of the limitation of the charter, or else this language is equivalent to a declaration that “A vehicle for heavy transportation is hereby declared and defined to be a vehicle having an axle of iron or steel one and one-fourth inches or more in diameter, and not having rubber tires, regardless of whether such axle be a solid bar or a hollow tube; regardless of whether such vehicle be a child’s velocipede, a man’s bicycle, a racing snlky, or an ordinary buggy; regardless of whether the other parts of said vehicle have a capacity for sustaining ten pounds or ten tons; and regardless of whether said vehicle be in fact used for light, for medium, or for heavy transportation.” (5) The words in the fifth paragraph of section 26 of article 3 of the city charter, which delegate to the mayor and assembly power “to regulate the width of tires of all vehicles for heavy transportation,” must be construed in their plain or ordinary and usual sense. R. S. 1899, see. 4160. (6)' The void portion of the ordinance is so inseparably connected with the valid as to admit of no line of demarcation to be drawn by either court or jury. Therefore the whole ordinance must fail. Railroad v. Day, 35 Fed. 866; Andrew Jackson ex parte, 45 Ark. 158; McConnell v. Mayor, 39 N. J. L. 38; Water Co. v. Neosho, 136 Mo. 498; Manhattan Co. v. Dayton, 59 Fed. 327; Hannibal v. Telephone Co., 31 Mo. App. 23; Mt. Olive v. Haslet, 26 Pitts. L. J. (Pa. St.) 400; Austin v. Murray, 16 Pick. 121. (7) If there is “any fair, reasonable doubt concerning the existence of the power,” the court will resolve the doubt in favor of the transfer company and against the city. City v. Telephone Co., 96 Mo. 628; City v. Kaime, 180 Mo. 309, (8) Under the evidence the ordinance is so grossly unreasonable as to justify and require the court to declare it void on that ground alone. State v. Rohart, 83 Minn. 261; Corrigan v. Gage, 68 Mo. 541; Halpin v. Campbell, 71 Mo. 484; Cape Girardeau v. Reilly, 72 Mo. 220; Kelly v. Meeks, 87 Mo. 396; Hannibal v. Telephone Co., 31 Mo. App. 23; Railroad v. Springfield, 85 Mo. 674; Plattsburg v. Hagenbush, 98 Mo. App. 669; Springfield v. Jacobs, 101 Mo. App. 339; Lamar v. Weidman, 57 Mo. App. 507; Gratiot v. Railroad, 116 Mo. 450; Morse v. Westport, 110 Mo. 502; Smith, Modern Law Mun. Corp., sec. '526; 1 Beach, Pub. Corp., secs. 90, 512 (9); Tugman v. Chicago, 78 111. 405; Caldwell v. Alton, 33 111. 416 ; Austin v. Murray, 16' Pick. 121. ' (9) In so far as the ordinance proviso applies to those véhicles of the appellant which are engaged ■exclusively in interstate commerce, it is an invasion of the exclusive power of Congress. U. S. Constitution, art. I, sec. 8; Leisy v. Hardin, 135 U. S. 100; .Schollenherger v. Pennsylvania, 171 U. S. 1; Collins v. New Hampshire, 171 U. S. 31; Austin v. Tennessee, 179 U. S. 343; Minnesota v. Barber, 133 U. S. 313; Henderson v. New York, 92 U. S. 259; Chy Lung v. Freeman, 92 U. S. 275; Railroad v. Huson, 95 U. S. 465; Scott v. Donald, 165 U. S. 58.

      Chas. W. Bates and B. H. Charles for respondent.
   FOX, J.

Relator applied to the circuit court of the city of St. Louis for a writ of mandamus to compel the license collector of said city to issue licenses for relator’s wagons and other vehicles used by it on the streets of the city. The defendant had refused to issue the licenses applied for on the ground that relator failed to make certain statements and affidavits required by section 1708, chapter 23, article 2, of General Ordinance No. 19991, and because the tires upon relator’s said vehicles were narrower than the width required by said section of the ordinance. Upon a trial of the cause, the peremptory writ was denied, and relator appealed to this court.

In its petition relator alleged that it was a Missouri corporation, engaged in carrying- freight, passengers and baggage within the city of St. Lords, Missouri, and within East St. Louis, Illinois, and in carrying freight between said, cities; that in its business it uses twenty-eight different kinds of vehicles, from “light baggage wagons, buggies, spring - wagons and road ■carts, which haul and carry light loads, to heavy stake wagons, half spring wagons, long reach wagons, bulk grain wagons and other wagons, which are designed to carry, and frequently do carry, heavy loads averaging in weight from four to ten tons; ’ ’ that certain other of its vehicles have rubber tires; that its wagons, road carts and passenger coaches have no rubber tires, and are so constructed as to make it impracticable to equip them with rubber tires ; that the operation of all its vehicles, except passenger coaches and baggage wagons, is confined to the down-town streets of the two cities, which are for the most part paved with cobble stones and granite blocks; that the defendant was' the duly qualified license collector of St. Louis.

Eelator then sets out in full section 1708 of the Eevised Ordinances of 1900, being a revision of Ordinance No. 18858, enacted in 1898.. This section provides for a license tax on all kinds of vehicles, graduated according to their character,.and contains the provision “that from and after the first day of January, eighteen hundred and ninety-nine, no vehicle of any kind or description shall be used on the streets of this city for any purpose whatever, unless all wheels of such vehicles shall be constructed with a width of tire corresponding to the size of the axle on the following scale, to-wit:

“Vehicles having axles of iron or steel, the wheels shall have width of tires as follows, to-wit: If the axle is of a width or thickness or diameter of one and one-fourth inches, the tires must be at least one and one-fourth inches wide; if the axle is of a width or thickness or diameter of one and one-half inches, the tires must be at least one and three-fourths inches wide; if the axle is of a width or thickness or diameter of one and five-eighth inches, the tires must be at least two inches wide; if the axle is of a width or thickness or diameter of one and three-fourths inches wide, the tire must be at least two and one-fourth inches wide; if the axle is of a width or thickness or diameter of one and seven-eighths inches, the tires must be at least two and one-half inches wide; if the axle is of a width or thickness or diameter of two inches, the tires must he at least two and three-fourths inches wide; if the axle is of a width or thickness or diameter of two and one-eighth inches, the tires must he at least three inches wide; if the axle is of a width or thickness or diameter of two and one-fourth inches, the tires must he at least three and one-half inches wide; if the axle is of a width or thickness or diameter of two and one-half inches, the tires must he at least four inches wide; if the axle is of a width or thickness or diameter of two and three-fourths inches, the tires must he at least four and one-half inches wide; if the axle is of a width or thickness or diameter of three inches, the tires must he at least five inches wide; if the axle is of a width or thickness or diameter of three and one-half inches, the tires must he at least five and one-half inches wide; if the axle is of a width or thickness or diameter of four inches, the tires must he at least six inches wide. ’ ’

Then follows a scale for wooden axles, hut this has no hearing upon the case at har, and will he omitted.

Trucks used for hauling boilers, engines, safes or dimension stones are required by the ordinance to have tires at least six inches wide, and those for hauling cable rope, eight inches wide, such trucks to he constructed with axles of such lengths that the hind wheels should he at least eight inches further apart than the front wheels thereof. Drays are required to have tires at least four inches wide, and sprinkling carts six inches.

Then follows a provision that vehicles which should he made to conform with the ordinance, prior to January .1, 1899, should from the date of such compliance with the ordinance and until said first day of January, 1899, be exempt from the license tax, hut that from and after January 1, 1899', all vehicles should he subject to the provisions of the section, and it was made unlawful, after said date, to use any vehicle on the streets of the city unless the tires thereof should conform to the requirements of said section. It was next provided that no license should he issued for any vehicle except upon the sworn statement of the applicant showing that the provisions of the ordinance in respect of width of tires had heen complied with.

Relator next alleged that it applied to the defend-. ant for license in the year 1905 for 132 two-horse wagons, fourteen carriages, two four-horse wagons, four one-horse wagons and seven buggies, and tendered the amount of license fees required, but that defendant refused to issue the licenses, assigning as his reason for such refusal that the relator did not accompany its application for such licenses with .the sworn statement required by the ordinance showing the width or thickness or diameter of the axles, and width of tires, and the vehicles for which such licenses were to be used.

The relator further alleges that its vehicles had not for years been constructed with a width of tire corresponding to the size of the axle on the scale mentioned in the ordinance, and then set out in its petition a table of the various kinds of vehicles used by it whose tires did not comply with the ordinance, as follows:

Description of Vehicle. Weight Width of Size of Steel Axle Tire. ^ Inch. of Wagon. Pounds.
Four-horse stake wagons 3¼ 4 (5) 5,850
Four-horse stake spring 3½ 4 (5½) 6.225
Two-horse four spring 2¾ 2½ (4½) 5.000
Two-horse half spring 2½ (4½) 4,700
Two-horse high stake stiff 2½(4) 3.050
Two-horse high stake spring 2½ (4) 3.050
Two-horse' low stake spring 2½ 2½(4) 3,350
Two-horse half spring 2½ 2½(4) 3.225
Two-horse bulk grain 2½ 2½(4) 2,925
Two-horse safe 2¾-3¼ 2½(4½-5) 5,100
Two-horse long reach 2½(4) 2,000
Pour-horse long reach 4 (5) 3,340
Two-horse light spring 2 2 (2¾) 2,000
Two-horse heavy baggage 2½ 3 (4) 4,100
Two-horse light baggage 1¾ 2¼ (2¼) 1,740
One-horse baggage 1¾ 2⅛(2¼) 1,550
Two-horse coaches 2½(2¼) 2,670

The two columns under the heading “width of tire” represent first, the actual width of tires on relator’s vehicles, and second (in the parentheses) the width of the tires required by the ordinance.

Relator next alleged that said section 1708 of the ordinance conflicts with the fifth paragraph of section 26 of article 3 of the charter of the city of St. Louis in that it attempts to regulate the width of tires for vehicles for light transportation and for medium transportation as well'as for heavy transportation; that the parts of said section are so closely related as to be inseparable; that the section does not define the term “heavy-transportation,” and that it is impossible to determine what vehicles fall within its provisions.

Relator further alleges that the ordinance is unreasonable in that it would necessitate the getting of new wheels, new axles and in many cases necessitate an entire change in the trucks and in the construction of wagon beds; that it would necessitate a cost of many thousands of dollars, would seriously cripple and injure the business of the relator, and would result in no g’ood whatever either to the city, the general public or to the streets. Then follows the allegation that it is the duty of the defendant to disregard the ordinance because of its unreasonableness, with the prayer for the writ.

In his return to the alternative writ the defendant admitted all the formal allegations of the petition, including the enactment of the ordinance, and that the relator was engaged in the business of carrying freight, passengers and baggage in the city of St. Louis, and that it owned the various classes of vehicles mentioned in the petition; alleged that the relator might lawfully operate all classes of its vehicles on any of the public highways of the city upon compliance with the ordinance provisions set out in the petition, and alleged that some of said highways are paved with brick, some with asphaltum, some with wooden blocks, some with cold tar cement and granite, some with macadam, and some not paved' at all; admitted the tender of the amount of license tax provided hy the ordinance, but alleged that d either the relator, nor any one for it, made the application for licenses in due form; alleged that neither the relator, nor any one for it, accompanied said application with statements or affidavits, as required by the ordinance, but, on the contrary, refused to make said statements and affidavits; alleged that defendant refused to issue licenses or receipts because relator refused to make the affidavits, as required by the ordinance, and because the tires on its vehicles were narrower than the width of tires prescribed by the ordinance; admitted the relator’s allegation that its tires were not constructed with the widths required by the ordinance, and alleged that it was unlawful for the defendant to issue licenses without compliance by the relator with said ordinance; alleged that defendant was anxious, ready and willing to issue licenses and tax receipts for relator’s vehicles upon the relator’s compliance with the ordinance, but that relator refused, and still refuses, to comply. Defendant denied all the other allegations in the petition, and prayed the court to quash the writ and dismiss the action.

The reply was a general denial of the return.

OPINION.

The relator strongly insists that the proviso of said section 1708 of the ordinance in question is so unreasonable as to warrant this court in holding said section void on that ground. In support of this contention a great mass of testimony, mostly in the form of depositions, was introduced in the court below. Nearly all this testimony, introduced by the relator, appears to be directed to the establishment of its theory that a wagon wheel, whether having a wide or narrow tire, does not normally travel on the full face of the tire, but rather on the outer edge thereof, and that therefore the ordinance as to wide tires does not serve its purpose, and is unreasonable. This theory is combated by quite a respectable crowd of witnesses for the defense, including experienced wagon-makers and teamsters, all of whom maintain that wheel tires do not roll on their outer edges alone; that when new the tire usually bears more heavily on its outer edge, but that this edge soon wears down, so that the whole face of the tire comes in contact with and bears upon the ground over which it rolls. We must confess that the theory advanced by the relator is to us a novel one, and the literature of the law sheds no light on the subject. Although there be more witnesses in support of than opposed to the theory, that fact does not move us, for it cannot be claimed that a numerical preponderance of witnesses should be decisive of the controversy. Courts will not be presumed to be visionless; and we have never yet seen any kind of wagon tire, rolling on the surface of ground soft enough to receive the impression, which did not leave its full imprint on the narrow strip of earth over which it had rolled. Theory should not outweigh practice and experience, and1 evidence which contests and contradicts the evidence of the senses must be received with caution.

It is further insisted by the relator that the ordinance would impose such intolerable hardships upon wagon-owners as to amount to confiscation of their property, and that the changes in the construction of wheels and tires required by the ordinance would result in positive injury, instead of benefit, to the city and its streets, and that it is therefore unreasonable and oppressive. After reading the evidence in support of this contention, we are still unconvinced. As said in People v. Wilson, 16 N. Y. Supp. 583, “It is reasonable to protect paved streets from being crushed and ruined by loads of enormous weight, borne upon vehicles with wheels of narrow tires, which cut through the pave ment, when a broader tire will bear the load without causing such injury. It is reasonable that the carrier of heavy loads should so exercise-his own rights as not injuriously to affect those of others.”

The rule is that where the question of the reasonableness of a municipal ordinance is in issue, all reasonable doubts are to he resolved in favor of the municipality. “When the courts are called.upon to exercise the judicial power in declarihg a municipal ordinance unreasonable, they will make such a declaration only when, the prima-facie ease made by the passage of the ordinance is overcome in the most satisfactory manner.” [Morse v. Westport, 110 Mo. l. c. 509; Stafford v. Railroad, 110 Wis. 331.]

The ordinance cannot he said to he discriminating, nor in derogation of common right, and neither upon its face, nor from proof aliunde, does it appear to us unreasonable.

But whether the particular provision of the ordinance regulating the width of vehicle tires is a valid and reasonable exercise of the power granted the city by the Legislature is another question. The fifth paragraph of section 26, article 3, of the charter of the city of St. Louis, empowers the municipal assembly to regulate by ordinance “the width of the tires of all vehicles for heavy transportation. ’ ’ This is an express grant of power for a certain purpose, and must he strictly construed, for where a corporation is empowered by its charter to make ordinances for certain purposes, its power of legislation is limited to the objects specified, all others being excluded by implication. [St. Louis v. Kaime, 180 Mo. 309; New Orleans v. Philippi, 9 La. Ann. 44; Douglass v. Placerville, 18 Cal. 643; Leavenworth v. Norton, 1 Kan. 405; Kyle v. Malin, 8 Ind. 34.] The defendant, however, contends that this express power is merely a corollary of the general power granted to the corporation in another paragraph of the same section of the charter to improve the streets, etc., and to regulate the use thereof, and that the general power so granted is not limited by the special power as to the regulation of the width of tires of vehicles for heavy transportation. That contention does not consist with the rule of construction laid down in the case of Ruschenberg v. Railroad, 161 Mo. 70: “When there are two acts, or charter provisions, or ordinances, one of which is special and particular and certainly includes the matter in question, and1 the other general, and such that, if standing alone, it would include the same matter, and thus conflict with the special act, the special act must be taken as intended to constitute an exception to the general act, and especially is this the law when such general and special acts are contemporaneous.” That rule is approved in the Kaime case, supra, wherein the court also said: “Even though it be conceded that the express grant of power . . . would not prohibit the exercise of the power under a general clause, yet such exercise of power cannot abrogate the limitations contained in the express grant. Hence, at last, we are relegated, as to the extent of power which can be legally exercised, to the express grant on the particular subject-matter to which the legislation is to be made applicable. ’ ’

Comparing the ordinance with the charter provision on the subject of wide tires, it will be noticed that the ordinance nowhere uses the term “heavy transportation,” nor makes any discrimination between vehicles for light and heavy transportation. The charter empowers the corporation to regulate the width of tires of vehicles for heavy transportation only, while the ordinance provision embraces vehicles of every kind and description, whether for light or heavy transportation. As the charter does not state what kind or character of vehicle should be regarded1 as a vehicle for heavy transportation, it is assumed that the Legislature .intended that the matter should be left to the discretion of the Municipal Assembly. But there is no way of determining from the words of the ordinance what constitutes a vehicle for heavy transportation. The ordinance simply requires all vehicles having axles of iron or steel of a thickness or diameter of one and one-fourth inches and over to have on their wheels tires of a certain width, corresponding to the size or thickness of the axle; and to say that the Municipal Assembly intended by that provision to declare that all such vehicles are vehicles for heavy transportation, would be an arbitrary and unwarranted assumption. We cannot read into the ordinance a thought which the framers thereof may have had, but did not express, nor can we give the words of the ordinance a strained and artificial meaning. The words of the charter are: “The mayor and assembly shall have power within the city ... to regulate the width of tires of all vehicles for heavy transportation.” Under the decisions of this court, this express provision must be held to be a limitation on the powers of the Municipal Assembly. By section 4160, Revised Statutes 1899, “words and phrases shall be taken in their plain or ordinary and usual sense,” and it is quite plain that the words “vehicles for heavy transportation,” as used in the charter, mean vehicles constructed or built for carrying or transporting heavy loads. Contrary to the provision of the charter limiting the power of the mayor and assembly to regulate the width of tires of vehicles of a certain class, or for a certain purpose, the mayor and assembly, by this ordinance, attempt to regulate the width of tires of vehicles “of every kind and description.”

In St. Louis v. Bell Telephone Company, 96 Mo. 623, this court said: “Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.” See also St. Louis v. Laughlin, 49 Mo. 562.

We are of opinion that the proviso of the ordinance in question is in excess of the power granted the city by the charter provision on the subject-matter of the regulation of the width of tires of vehicles, in that it makes no discrimination as between vehicles for light and heavy transportation.

It is true that an ordinance may be valid in part and void in part, and that the valid part may be given effect, if what remains after the invalid part is eliminated contains the essential elements of a complete ordinance. Where, however, an ordinance is entire, each part having a general influence over the rest, and a particular provision thereof is void, the entire ordinance will be so declared. [Kirkwood v. Meramec Highlands Co., 94 Mo. App. 637; Attorney-General v. Lowell, 67 N. H. 198; Chicago v. Gunning System, 114 Ill. App. 377.] This we find to be the case here.

The proviso of said section 1708 of General Ordinance No. 19991 is undoubtedly void as being in excess of the charter grant of power, and the proviso having a general influence over the remaining portion of the section, and being inseparably connected therewith, the whole of said section must be declared invalid.

Relator also insists that the ordinance under review conflicts with section 8 of article I of the Constitution of the United States, in that, as contended, it is an invasion of the power of Congress to regulate interstate commerce, and that it also conflicts with section 1 of the Fourteenth Amendment to said Constitution. These questions were properly raised in the lower court. While we are not impressed with the arguments in support of these propositions, we do not deem it necessary to discuss or pass upon them, as the ordinance is held invalid for the reasons previously stated.

The judgment is reversed and the cause remanded, with a direction to the lower court to grant a temporary writ of mandamus to the relator for the relief asked.

All concur.


text:
    CITY OF ST. LOUIS, Plaintiff in Error, v. GUST COOL.
    Division Two,
    May 26, 1910.
    1. WIDTH OF WAGON TIRES: Invalid Ordinance: In Excess of Charter Powers. Where the charter gives to a city the power “to regulate the width of tires of all vehicles for héavy transportation,” ¿n ordinance that undertakes to prohibit the use upon the streets of all vehicles unless they have tires of a specified width, whether they are used in heavy transportation or not, is invalid, since it is not limited to the express power granted.
    2. -: -: -: Inseparable Parts. And if the ordinance is so drawn that its invalid portions cannot be separated from its other parts, the whole is invalid and it cannot be upheld as an inhibition upon the use for heavy transportation of wagons with tires wider than the ordinance specifications.
    Error to St. Louis Court of Criminal Correction.— Hon, Hiram N. Moore, Judge.
    Affirmed.

      Chas. W. Bates and B. H. Charles for plaintiff in error.

      Randolph Laughlin for defendant in error.
   FOX, J.

The defendant in error was convicted in the First District Police Court of the city of St. Louis, of a violation of an ordinance of said city, entitled, “An ordinance in revision of the ordinances of the city of St. Louis,” being General Ordinance No. 19991, chapter 23, article 2, sections 1708 and 1710. The complaint alleged that: “In the city of St. Louis, State of Missouri, on the 15th day of June, 1905, and on divers other days and times prior thereto, the said Gust Cool, being the owner and driver of a two-horse wagon, did then and there, and on said other days, drive and cause to be driven said vehicle from place to place, on Seventh and Olive streets, which said streets were then and there public streets of said city, and did use and cause to be used said1 streets for the purpose of trade and traffic, and for private purposes with said vehicle so driven as aforesaid, without first having paid for and obtained a license thereon from the city collector of said city; contrary to the ordinance in such case made and provided.”

Defendant appealed from the judgment of conviction to the St. Louis Court of Criminal Correction. The case was submitted to said court without the intervention of a jury, the parties offering and the court receiving in evidence the following stipulation, together with the documentary evidence therein described:

“The parties to the above cause hereby stipulate and agree as follows:

“This cause shall be submitted to the court as follows: The defendant will admit, and does hereby admit, the averments of fact contained in the plaintiff’s complaint, statement or petition, and will rest, and does hereby rest his defense on the proposition that the ordinance on which the plaintiff’s case is predicated is void for two reasons, to-wit: (1) Because it is in violation of the city charter; and (2) because it is so unreasonable and oppressive as to justify the court in declaring it void on that ground alone.”

It is then stipulated by the parties that the case should be submitted to the court upon precisely the same record as in the case of State of Missouri ex rel. St. Louis Transfer Co. v. Clifford, theretofore tried in. the circuit court of said city, with the addition of the following facts:

“The axles of the wagon driven by the defendant at the time of his arrest were made of iron- or steel. and said wagon was at tbe time, and still is, a delivery-wagon, belonging to tbe St. Lonis Transfer Company, and driven by tbe defendant as its driver, for tbe purpose of delivering trunks, to and from tbe Union Station in tbe city of St. Louis, tbe tires of wbicb did not conform to tbe provisions of section 1708 of tbe Eevised Ordinances, and on wbicb said St. Louis Transfer Company bad been refused a license for that reason. Said wagon then bad, and still has, axles one and three-fourths inches in diameter, and is capable of bolding and carrying a load of not to exceed three thousand pounds. ’ ’

Other facts are stated and agreed to in said stipulation, but wbicb we do not regard as of any importance, and will therefore omit them.

Tbe court banded down an opinion finding that tbe ordinance (section 1708) upon wbicb tbe plaintiff’s case was predicated was invalid as not being-authorized by tbe charter of tbe city of St. Louis. Judgment of acquittal was accordingly entered, and tbe defendant discharged.

Tbe cause comes to this court by writ of error.

Save as to tbe additional matter contained in tbe stipulation filed in tbe case by tbe parties, this case was submitted upon tbe same record as in tbe case of State of Missouri ex rel. St. Louis Transfer Co. v. P. J. Clifford, tbe opinion in wbicb case is banded down at this sitting of tbe court, and as both cases involve tbe same issues and tbe construction of tbe same ordinance, tbe decision in tbe Clifford case must be held as decisive of this. Tbe judgment is, therefore, affirmed.

All concur.


author: BURGESS, J.

text:
    HENRY L. CORNET et al., Appellants, v. A. F. CABRILLIAC et al.
    Division Two,
    May 26, 1910.
    1. COMMISSIONS FOR SELLING REAL ESTATE: Agency Not in Writing: Unconstitutional Statute. Section 1 of the Act of March 28, 1903, Laws 1903, p. 161, providing that in cities of three hundred thousand inhabitants or more any person who shall offer for sale any real property without written authority of the owner thereof, or of his attorney-in-fact, or of a person who has made a written contract for the purchase of such property with the owner thereof, shall be guilty of a misdemeanor, is unconstitutional and void, and is no bar to the recovery by an agent whose appointment is not in writing, of commissions which he has justly earned in the sale of defendant’s real estate.
    2. -: -: -: Appeal: From Order,Sustaining Motion For New Trial. But where the trial court granted to defendant a new trial on the sole ground that the said unconstitutional statute barred plaintiff’s right to commissions for making said sale, and the evidence on the question of plaintiff’s agency and of his finding a purchaser is conflicting, the Supreme Court will, on plaintiff’s appeal, simply affirm the judgment granting a new trial.
    Appeal from St. Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge.
    Affirmed.

      Julius T. Muench for appellants.
    (1) Upon this appeal, from the trial court’s order sustaining the motion for a new trial, the whole record is before this court for review. Scullin v. Railroad, 192 Mo. 5, 184 Mo. 695. (2) As the Law of 1903 (p. 161), making it a misdemeanor to offer real estate for sale “in cities of three hundred thousand inhabitants or more, ’ ’ can never, under its terms, apply to more than one city in the State, and the exigencies of the- case were not such that a general law could not have heen made applicable, it is both local and special and therefore unconstitutional, as violative of article 4, section 53, of the Constitution of Missouri. State ex rel. v. Turner, 210 Mo. 77; State ex rel. v. Messerly, 198 Mo. 351; Henderson v. Koenig, 168 Mo. 375;' Murnane v. St. Louis, 123 Mo. 479; State ex rel. v. County Court, 89 Mo. 237; State ex rel. v. Herrmann, 75 Mo. 353. (3) The Law of 1903, even if held constitutional, should not bar plaintiffs’ recovery in this case, for the reason that the defendants ratified plaintiffs’ act and received the benefit of their services. Tooker v, Duckworth, 107 Mo. App. 231; Prince v. Baptist Church, 20 Mo. App. 332; Smyth v. Hanson, 61 Mo. App. 285; Prietto v. Lewis, 11 Mo. App. 600; Trust Co. v. Niggeman, 119 Mo. App. 56; Trust Co. v. Hartmann, 128 Mo. App. 233. (4) Even though the law should be held constitutional, it could not be retrospective in its operation, and could not, therefore, affect existing agreements for the sale of real estate. Leete v. Bank, 115 Mo. 184; Minter v. Bradstreet Co., 174 Mo. 489; Shield's v. Johnson Co., 144 Mo. 82; Reed v. Swan, 133 Mo. 107; State ex rel. v. Auditor, 41 Mo. 25; State ex rel. v. Ferguson, 62 Mo. 77; State ex rel. v. Hays, 52 Mo. 578; Thompson v. Smith, 8 Mo.. 723. (5) Judgment was properly rendered by the circuit court for the full amount against all the defendants who were in court. Paper Co. v. Bosbyshell, 14 Mo. App. 534. (6) This court will take judicial notice of the fact that the city of St. Louis is the only city in the State which had 300,000 inhabitants at the time the law went into effect. State ex rel. v. Herrmann, 75 Mo. 340; State ex rel. v. County Court, 89 Mo. 237.

      Franje A. C. Mac'Manus for respondents.
    (1) "When the motion for a new trial can be supported on any of the grounds assigned therein, the appellant must fail, and the judgment be affirmed. Bank: v. Amstrong, 92 Mo. 280", Ittner v. Hughes, 133 Mo. 693. .And where the motion has been sustained on the grounds of the verdict being against the greater weight of the evidence, appellate courts will not review the action of the trial court in granting or sustaining the motion. McKay v. Underwood, 47 Mo. 187; Eidenmiller v. Kump, 61 Mo. 342; Reed v. Insurance Co., 58 Mo. 429; Whitsett v. Ransom, 79 Mo. 260; Baughman v. Fulton, 139 Mo. 559. The Scnllin cases do not overrule the above propositions. They are not in point. The motion for new trial in this cause should have been sustained on all the grounds specified, and especially on the 5th. All the evidence offered by plaintiffs on the subject of having authority to offer the property for sale, after the admission that there was no authority in writing, should have been excluded. Bartlett v, Donohue, 72 Mo. 563. It was legally insufficient for the purpose for which it was offered. (2) 'The petition, or “statement,” filed in this cause, does not state a cause of action. The justice before whom the action was first instituted never had jurisdiction, and the circuit court on appeal never acquired any. Jurisdiction of the subject-matter must be shown on the face of the pleadings in a case such as this. Fisher v. Davis, 27 Mo. App. 321; Kansas City v. Ford, 99 Mo. 91. (a) The Laws of 1903 prohibit the offering of services of the character mentioned, unless ‘ ‘ authority in writing was had from the owner of the real estate. ” A person suing must show statutory requirements necessary to confer the “right of action,” and this must appear in the petition or statement, otherwise it will not show a “cause of action.” Barker v. Railroad, 91 Mo. 86. (b) The peremptory instruction offered by defendants should have been given. The statement as filed shows a conclusion, and does not aver the substantive and basic fact that such “services or commissions were earned” within the statute requirement of written authority. Such authority is a condition precedent to the creation of a right of action and mnst appear in the statement, or the writing itself mnst be filed with the statement showing charges. A legal cause of action must he stated. Jones v. Puller, 38 Mo. 363; Butts v. Phelps, 79 Mo. 302. (c) The “authority” of the persons offering the property “for sale” should have been filed with the statement, or at least referred to in the “statement;” at all events, the paper which is the foundation of the action must be filed before trial, or the justice is without power to hear or determine. Insurance Co. v. Poster, 56 Mo. App 197. No authority in writing from the owners was ever filed; in fact, it is conceded none was ever obtained. (3) Instructions prayed the court hy defendants and hy it refused, should have been given, viz.: Nos. 1, 2, 3, 4 and 5. The court erred in giving the “third” declaration of law of its own motion, (a) In a suit by a real estate broker to recover commission for his services in offering (and negotiating) the sale of real property, the agent or person must have authority in writing from the owner, or his attorney-in-fact, appointed in writing, and cannot recover for such services without such authority. Page on Contracts, sec. 692.; Clark & Skyles on Agency, sec. 749'; Laws 1903, p. 161, sec. 1; Rothwell v. Gibson, 121 Mo. App. 279; Findley v. Handley, 121 Mo. App. 358. Decisions from other States supporting a similar law. McCarthy v. Loupe, 62 Cal. 299; Nigres v. Surryhaul. 67 Cal. 657; McGreary v. Satchwell, 129 Cal. 389;' Dolan v. 0 ’Toole, 129 Cal. 488; Castor v. Richardson, 18 Colo. 496; Ballou v. Bergunden, 9 N. D. 285; Longstrah v. Korb, 64 N. J. L. 112. (b) Such requirement of specific authority being a mere power not coupled with an interest, was provided for upon the taking effect of the Act of 1903, so far as all large cities of this State are concerned. Clark & Skyles, secs. 181-2; sec. 39 a and h; Hitson v. Brown, 3 Colo. 304; Johnson v. Haling, 103 Pa. St. 498; Buckley v. Humason, 50 Minn. 195; Stevenson v. Ewing, 87 Tenn. 46. “Agreements to do acts in violation of a criminal statute are unenforceable.” Bick v. Seal, 45 Mo. App. 475; Mitchel v. Branham, 104 Mo. App. 487; Tandy v. Elmore, 113 Mo. App. 459; Sawyer v. Sanders, 113 Mo. App. 233; Tyler v. Laramore, 19 Mo. App. 445. The constitutional guaranty of equal rights is not infringed by making a police regulation applicable in certain cities of a State. People v. Warden, 183 N. Y. 223. The New York courts have held that a similar statute “is a valid exercise of the police pow'er of the State.” People v. Stuecker, 75 App. Div. 449, 78 N. Y. Sup, 316, 82 N. Y. Sup. 89.
   BURGESS, J.

This suit was instituted to recover the sum of $250, claimed by plaintiffs as commissions due them for selling a lot of real estate belonging to the defendants, situate in the city of St Louis.

The trial before the justice of the peace resulted in a judgment in favor of the defendants; upon an appeal to the circuit court, a trial de novo was had, which resulted1 in a judgment against four of the defendants and in favor of the defendant Amelia A. Altenbaumer,' she not having been properly served. A motion for a new trial was sustained, and plaintiffs duly appealed to this court.

There are a number of errors assigned, but the principal one assails the constitutionality of section 1 of an act of the Legislature, approved March 28, 1903, Laws 1903, p. 161, providing that in cities of three hundred thousand inhabitants or more any person who shall offer for sale any real property without the written authority.of the owner thereof, or of his attorney-in-fact, appointed in writing, or of- a person who has made a written contract for the purchase of such property with the owner thereof, shall be guilty of a misdemeanor.

It is conceded that no such written authority was given to plaintiffs.

Upon that state of facts the court, by sustaining the motion for a new trial, held the act in question valid, and, consequently, that plaintiffs were not entitled to a recovery because their authority was not in writing.

This identical proposition was decided adversely to the contentions of defendants by Division No. 1 of this court at its last sitting in the case of Woolley v. Mears, 226 Mo. 41.

Upon the authority of that case we hold that said act is unconstitutional, null and void, and, consequently, plaintiffs are entitled to a recovery in this case, if they were authorized by the proper parties to sell said! real estate; and provided plaintiffs found a purchaser who was able, ready and willing to purchase upon the terms they were so authorized to sell. However, the evidence upon this question was conflicting; and, as the court sustained the motion for a new trial upon the ground, among others, that the verdict was against the weight of the evidence, we have no authority to disturb the order and judgment of the court sustaining the motion for a new trial, for the reason that such an order rests largely within the sound discretion of the trial judge, and should never be disturbed except where the record shows the court has already abused that discretion. No such showing is disclosed by this record.

We, therefore, affirm the order and judgment of the trial court in sustaining the motion for a new trial.

All concur.