Baker v. Hasler , 218 Mo. App. 1 ( 1925 )

^* Headnotes 1. Injunctions, 32 C.J., Section 415; 2. Municipal Corporations, 28 Cyc., p. 370; 3. Municipal Corporations, 28 Cyc., pp. 369, 370; 4. Municipal Corporations, 28 Cyc., p. 910; 5. Municipal Corporations, 28 Cyc., p. 910; 6. Municipal Corporations, 28 Cyc., p. 910. Plaintiff filed his bill against the city marshal of the city of Caruthersville seeking an injunction to enjoin the enforcement of an ordinance of said city. Answer and reply were filed. Motion was then filed by defendant for judgment on the pleadings. This motion was sustained, and plaintiff's bill dismissed and he appealed.

The ordinance is as follows: "An Ordinance to prohibit any person, firm, company or corporation licensed to engage in or carry on the business of running or operating any automobile or jitney bus for the purpose of carrying passengers for hire from allowing or permitting any such automobile or jitney bus to be or remain stationary or parked on any public street or alley within the corporate limits of the City of Caruthersville, except for a reasonably sufficient length of time to permit passengers to embark or disembark from such automobile or jitney bus; and providing a penalty for the violation of this ordinance.

"Be it ordained by the council of the City of Caruthersville, Missouri, as follows:

"Section 1. It shall hereafter be unlawful for any person, firm, company or corporation licensed to engage in or carry on the business of running or operating any automobile or jitney bus for the purpose of carrying passengers for hire to permit or allow any such automobile or jitney bus to be or remain stationary or parked on any public street or alley within the corporate limits of the City of Caruthersville, except for a reasonably sufficient length of time to permit passengers to embark on or disembark from such automobile or jitney bus.

"Section 2. Any person, firm, company, or corporation found guilty of violating section 1 of this ordinance shall be fined in a sum not less than $1 nor more than $100 for each and every offense.

"Section 3. This ordinance shall take effect and be in full force from and after its passage and approval.

"Passed and approved this the 17th day of December, 1923.

"MORRELL DEREIGN, Mayor. "Attest, "THOS. D. WARD, "City Clerk."

Plaintiff operates an automobile in the city of Caruthersville, a city of the third class, for the purpose of carrying passengers for hire and challenges the validity of this ordinance. Defendant contends that nothing appears in the pleadings to show that plaintiff is entitled to relief on the equity side of the court. Plaintiff alleges and defendant admits that this ordinance is being enforced against plaintiff, and that he is not in said city permitted to stop his automobile used for carrying passengers for hire longer than is prescribed by said ordinance. Section 2 of the ordinance prescribes a penalty of one to one hundred dollars for each and every violation. We think that Jewel Tea Company v. Carthage, 257 Mo. 383, 165 S.W. 743, is authority supporting plaintiff's contention that he is entitled to injunctive relief if the ordinance is void. That case was to enjoin the enforcement of an ordinance defining a mercantile agent, and taxing that occupation a license fee, and making the doing of such business without procuring a license a misdemeanor punishable by a fine. In ruling on the question of whether the cause was one of equity cognizance the court said: "It is apparent from the agreed statement of facts that plaintiff could not have adequate remedy at law. It was entitled to prosecute the lawful business in which it was engaged without vexation, annoyance and irreparable damage of a multiplicity of suits growing out of an arrest and prosecution of its sales agent for each order and delivery of goods taken and made by him."

Plaintiff challenges the validity of the ordinance on the ground that it is not authorized by statute, and that it is void because unreasonable. In City of Monett v. Campbell, 204 S.W. (Mo. App.) 32, we had under consideration an ordinance alleged to be void because unreasonable. In that case we said: "Municipal corporations are prima facie the sole judges of the necessity of their ordinances, and courts will not ordinarily review their reasonableness when passed in compliance with authority given by the State. [City of Hannibal v. Missouri Kansas Telephone Co., 31 Mo. App. 23; City of Windsor v. Bast, 199 S.W. 722; City of St. Louis v. Green, 70 Mo. 562; Co. Ct. of St. Louis Co. v. Griswold, 58 Mo. 175.] However, courts may declare an ordinance void if upon inspection it appears to be unreasonable. [City of Windsor v. Bast, supra; St. Louis v. St. Louis Theater Co., 202 Mo. 690, 100 S.W. 627.] Also the courts may declare an ordinance void whether void on its face or not, for unreasonableness, if, by evidence, it is shown that such ordinance is unreasonable. [City of Windsor v. Bast, supra; City of St. Louis v. St. Louis Theater Co, supra; City of St. Louis v. Warren Commission, etc., Co., 226 Mo. 148, 126 S.W. 166; City of Carthage v. Block, 139 Mo. App. 386, 123 S.W. 483.]"

The ordinance at bar does not attempt to regulate the parking of automobiles used for carrying passengers for hire. It prohibits the parking of such automobiles. Laws 1921 (Extra Session), p. 100, subdivision b of Section 24, authorizes municipalities to regulate the parking of vehicles on the streets, but neither this or any other statute authorizes municipalities to prohibit the parking of vehicles on the streets. Said subdivision further provided that "no ordinance shall be valid which contains provisions contrary to or in conflict with this act, except as herein provided." And there is nothing therein provided which squints at authorizing such a drastic ordinance as the one at bar. The ordinance is unauthorized by statute and is void.

We also think that the ordinance is void because unreasonable. We are unable to find any case in this State directly in point, and able counsel state in their briefs that they were unable to find such case. In Ex Parte Battis, 48 S.W. 513, the Court of Criminal Appeals of Texas declared void, because unreasonable, an ordinance of the city of Fort Worth quite similar to the ordinance at bar. The ordinance there in judgment was as follows: "Any person or persons owning or using any street carriage, hack or other vehicle for the purpose of conveying passengers, goods, wares or merchandise from one part of the city of Ft. Worth to another, for hire, who shall stop, stand or detain any such carriage, hack or vehicle on Main or Houston streets, or upon any cross streets running east and west between said Main and Houston streets, commencing with Weatherford street on the north, and ending with Seventh street on the south, or in front of any public hotel in said city, except when actually engaged in receiving or delivering passengers, goods wares or merchandise, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum not less than five nor more than twenty-five dollars."

In passing upon the validity of this ordinance the Court of Criminal Appeals said: "The ordinance in question, it will be noted, inhibits the stoppage of vehicles on said streets in the city of Ft. Worth for any purpose, except to receive and discharge freight or passengers. Under it, no matter what the emergency might be, a person stopping a vehicle, outside of the exceptions, would violate the ordinance, and be subject to punishment. A great many exigencies might occur for a person to stop a vehicle for the transportation of goods or passengers, which he might be driving, entirely reasonable; but under the ordinance, if he delay but a moment, he would be subject to a fine. There can be no question that, under a proper ordinance, the municipality has authority to prevent the incumbering or obstruction of its streets, alleys, and highways by vehicles, and, to that end, can regulate their use, can fix stands for vehicles, and permit them to use no other place as stand. This would be a proper exercise of its power to regulate; but it occurs to us that the sweeping declaration in this ordinance, inhibiting the stoppage of vehicles for any purpose, outside of the exceptions mentioned, is oppressive, and is in contravention of common right, and so is unreasonable."

The Fort Worth ordinance is in degree less unreasonable than the ordinance at bar, because the prohibition there was limited to certain streets and in front of hotels, while the ordinance at bar covers the whole city. The language quoted from the Texas court as to the scope of the ordinance there in question is equally applicable to the ordinance under consideration.

The city has authority to regulate the parking of vehicles described in the ordinance, but it has no authority to prohibit the parking of such vehicles. The judgment should be reversed and the cause remanded with directions to enter judgment in accordance with the prayer of plaintiff's petition, and it is so ordered. Cox, P.J., and Bailey, J., concur.