City of Clayton v. Nemours ( 1942 )

ON MOTION FOR REHEARING. Defendant (respondent) has filed a motion for rehearing in which he earnestly insists that in overruling his motion to dismiss plaintiff city's appeal, thereby upholding the right of a municipality to appeal from a judgment in favor of the defendant in the case of a prosecution for violation of an ordinance, we have brought ourselves into conflict with the two statutes referred to in the principal opinion (Secs. 7140, 7363, R.S. Mo. 1939, Mo. R.S.A., secs. 7140, 7363), and have reached a result which is counter to the obvious purpose of the statutes.

We cannot agree with defendant that our decision on his motion to dismiss is either in conflict with the statutes or violative of their obvious purpose, which, in view of the recognized criminal aspects of a civil proceeding for violation of a city ordinance, was merely to set at rest, by positive legislative enactment, the uncertainty prevailing as to the proper procedure to be followed in the trial of appeals from city courts.

All that such statutes purport to do is to provide that such an appeal shall be "in the nature" of a criminal appeal in the sense that its trial shall be proceeded with in the same manner as is provided in cases of appeals from judgments of justices of the peace in cases of misdemeanor. But while thus providing that the criminal, and not the civil, code shall govern the procedure to be followed on the appeal, the statutes do not in anywise undertake to alter the character of such a proceeding as inherently civil in its nature, nor do they deny the subsequent right of appeal which the civil character of the proceeding affords equally to either of the parties to it who may be aggrieved by the judgment of the circuit court. Indeed, insofar as the statutes may be thought to indicate a legislative purpose or policy in that respect, it is inconceivable that in specifically providing that either the city or the defendant may appeal from the judgment of the city court (Sec. 7140), the Legislature should at the same time have intended that at the conclusion of the trial in the circuit court, the defendant alone, and not the city, should have the right of further appeal.

As for matters having to do with the merits of the case, that is, with the question of the validity of the ordinance prohibiting the parking of automobiles along Glen Ridge Avenue for a distance of 115 feet north of Clayton Road, defendant complains of our decision insofar as it constitutes an effectual holding that the city, as an incident to its power to "regulate" the parking of vehicles on streets (Sec. 8395, R.S. Mo. 1939, Mo. R.S.A., sec. 8395), may absolutely "prohibit" the parking of automobiles at the point and within the limits prescribed by the ordinance.

For his assumed authority, defendant cites the case of Baker v. Hasler, 218 Mo. App. 1, 274 S.W. 1095, which involved the validity of an ordinance of the City of Caruthersville, Missouri, providing that it should be unlawful for any person, firm, company, or corporation engaged in operating any automobile or jitney bus for the purpose of carrying passengers for hire to 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 said city, except for a reasonably sufficient length of time to permit passengers to enter or alight from such automobile or jitney bus.

Asserting the power of the courts to declare an ordinance void if the same appears or is shown to be unreasonable, the court held the particular ordinance to be invalid upon the obvious ground that its sweeping declaration prohibiting the stopping or parking, upon any public street or alley within the entire corporate limits of the city, of the one special type of motor vehicles for any purpose outside of the one exception noted, was oppressive, in contravention of common right, and therefore unreasonable.

The above decision was eminently sound and just on its particular facts, but it constitutes no authority for the proposition that a city may not, as a reasonable police regulation, designate streets or parts of streets within its limits upon which parking shall be either prohibited absolutely or else restricted to a limited time. On the contrary, a city, under its power to regulate parking, may define and establish zones where parking shall be either limited or prohibited (Cavanaugh v. Gerk, 313 Mo. 375; 280 S.W. 51); and so long as the ordinance is reasonable and necessary for the pubilc safety, the courts will have no recourse but to enforce it, if no other obstacle to its validity exists. Incidentally, in the case at bar, defendant has never contended that the ordinance in question is unreasonable or unnecessary for the public safety; and that the ordinance constitutes a proper police regulation may therefore be taken for granted, if the city's power to regulate the use and operation of automobiles extends to Glen Ridge Avenue.

As in the original submission of the case, the burden of defendant's complaint is that the effect of the ordinance denying him (in common with every one else) the right to park on Glen Ridge Avenue for the distance of 115 feet adjacent to his mother's residence, where he resides as a member of her family, is to take private property for public use without just compensation. The answer to this contention is that the city has not taken any private property for public use or otherwise. On the contrary, the owners themselves have voluntarily extended permission to the general public to use Glen Ridge Avenue for public travel in the manner and to the extent that the evidence discloses; and it is the fact of the license thus granted by the owners which casts upon the city both the power and the duty of imposing reasonable regulations upon the exercise of such license so long as the owners allow the same to be continued. To be sure, the revocation of the license, if the owners should so elect, would not work an actual repeal of the ordinance, although the practical effect would be the same by removing the sole basis upon which the ordinance depends for its validity.

It follows that respondent's motion for rehearing should be overruled; and the Commissioner so recommends.