City of Springfield v. Stevens , 358 Mo. 699 ( 1949 )

Appellant, a taxicab driver, was charged with the violation of an ordinance of the City of Springfield as follows: "Defendant did then and there wilfully, unlawfully have in his possession and carry and transport in his taxicab, intoxicating beverage or liquor, towit: one bottle of wine." He was fined $10 and costs in the municipal court. He appealed to the circuit court where he waived a jury and submitted his case to the court. That court found him guilty but only of transporting intoxicating liquor. He appealed to this court. This court has ruled the ordinance under which he was convicted is a valid enactment, and is constitutional. It has, however, held the evidence did not support the judgment finding appellant guilty of transporting liquor, but does support a finding of guilt of possession of liquor, and has entered a judgment in this court accordingly.

[12] In my opinion the ordinance under which appellant was convicted is unconstitutional. A judgment of guilt for its violation in any respect is therefore void.

The ordinance provides:

"Sec. 554. Drinking or possessing intoxicating beverages, and transporting intoxicating [sic] persons. — No taxicab driver shall have in his possession, or shall carry or transport in his taxicab, intoxicating beverages of any kind, and no taxicab driver shall drink any intoxicating beverages of any kind while on duty. No taxicab driver shall transport in his taxicab a person or persons in an intoxicated condition.

"No taxicab owner, or any employee of the owner, shall have around his office or place of business of said taxicab company any intoxicating beverages of any kind. No taxicab owner, or any employee of the owner, shall have in his possession, or carry or transport in his taxicab and/or their taxicabs intoxicating beverages of any kind. No taxicab owner, or any employee of the owner, shall drink intoxicating beverages of any kind while on duty. (Ord. 255, 341b, passed Jan. 19, 1943.)"

The ordinance in question forms a part of a general comprehensive ordinance providing [460] for the licensing, regulation and control of taxicabs.

For its authority to adopt the ordinance in question, the city relies on Section 6609 R.S. 1939, Mo. RSA granting corporate powers to cities of the second class, in which class Springfield falls. The statute has seventy-two separate sections. The city contends it was authorized to enact the ordinance under three of the sections. These are Section XI which authorizes the city to regulate the use of streets and alleys. Section XVIII which authorizes the city to regulate more than one hundred businesses and occupations, and, pertinent to this case, to regulate in particular "street railway cars, omnibuses, hansom cabs, hackney coaches, drays, job wagons, carts, carriages, barouches, buggies, wagons, automobiles, motorcycles, bicycles and all vehicles, private or public." The third section relied on is Section XX, a general welfare clause, which states: "To define, suppress, prohibit and prevent all acts, practices, conduct, business, occupations, calling, trades and all other things whatsoever, detrimental to the health, good morals, comfort, safety, convenience and welfare of the inhabitants of the city, and all nuisances and causes thereof."

The ordinance is a police regulation. In determining whether a city has the authority to enact such a regulation as we have here several questions present themselves. The first question is, — What evil or danger is the city attempting to avoid? The next question is, — Has the city the authority to legislate in reference to such evil? Then other questions follow. Is the evil in this case reasonably incident to the use of the streets? Is the evil reasonably incident to the operation of public motor vehicles? Is the evil characteristic of taxicab owners, their employees, and drivers? If these questions may be answered affirmatively, then more questions arise. Is the regulation reasonable? Is it lawful? Is it constitutional?

We search the whole ordinance to seek out the evil it is aimed at. Clearly its purpose is to prohibit and regulate the use of liquor. To further this purpose it restrains the possession, carrying, and transportation of liquor. These are but initial steps to accomplish the ultimate purpose of regulating the use. Such acts are not considered as evils in themselves but they have been regarded as leading to the use of liquor. The restraint against possession is general. It is not limited as to place. There are limitations specifically applying to taxicabs and to a taxicab company's office or place of business. Liquor may not be carried in cabs or kept "around" the office.

The ordinance is even more general as to the persons it affects. It is not a regulation against the use of liquor by drivers alone, but covers everyone connected with the taxicab business and its customers. It specifically forbids the drinking of liquor by drivers and by everyone connected with the business from the owner down. It goes even further. It restricts the use of liquor by the company's customers both those who are passengers and those seeking delivery service. For instance, the ordinance operates to regulate the use of liquor by the "sick lady" in this case who sought the delivery of the bottle of wine. So clearly, the ordinance is one to regulate the use of liquor and not to regulate taxicabs in the use of the city's streets.

[13] The city's charter gives it no power whatever over the control of liquor generally, or specifically to control its use. The State Liquor Control Act which we refer to presently permits the city to charge license fees for making and selling liquor, and gives it concurrent authority to provide "for the regulation and control of the sale" of liquor. Its concurrent authority is limited to the sale only. The ordinance does not regulate or control the sale of liquor. The city has no statutory or charter power to prohibit or to regulate the use, possession or transportation of liquor. Furthermore, its attempted regulation violates rights guaranteed by the Constitution.

However, the city asserts the ordinance is not one to regulate and control liquor but comes within its power to regulate the use of its streets by taxicabs, and to prohibit the transportation of "merchandise" by taxicabs. Such is the only purpose of the ordinance asserted by the city. We will dispose of this contention first.

[461] It has long been the settled rule that municipalities in the exercise of the power to regulate the use of their streets may enact regulations for the government of motor vehicles within their boundaries so long as such regulations do not conflict with state laws. A taxicab is a public vehicle for hire which derives its income from the use of the public streets. It is subject to a license tax and to proper regulation by municipal ordinances.

The city points out that taxicabs are intended primarily as passenger carriers. Therefore, it contends it may lawfully restrain taxicabs from transporting "merchandise." Perhaps it may, but that question is not for decision here because the ordinance does not by its terms prohibit the transportation of merchandise. Merchandise has been defined as whatever is usually bought and sold in trade or market, or by merchants. The phrase "goods, wares, and merchandise" is a familiar one. The ordinance does not forbid the possession or transportation of merchandise generally or the drinking of liquid merchandise — only intoxicating beverages.

The city argues the ordinance is incidental to its express powers, so it is authorized under what is termed the welfare clause, that is Section XX, in that it is a regulation of the use of its streets by taxicabs.

In my opinion the ordinance does not regulate the use of the streets by taxicabs. The only possible connection it has with using the streets is the prohibition against a taxicab driver, owner or employee carrying with him or transporting liquor in his taxicab. This does not regulate the transportation of merchandise generally or to the business of hauling liquor, if such therebe. It is not a traffic regulation governing the use of the streets and incident to the business of operating taxicabs. In prohibiting the use of liquor it imposes only a rule governing the personal conduct of those who happen to be engaged in such a business, conduct not necessarily inherent in such business. The prohibitory measures are not even limited in their application to the use of the streets. They apply to the office or place of business of the owner as well. The owner while on duty sitting at his desk in his office may not drink. Nor may the mechanic in the taxicab garage. The ordinance does not pretend to forbid the operation of a taxicab by an intoxicated driver. A state law makes it an offense for any person to operate a motor vehicle while in an intoxicated condition. Elsewhere in the taxicab ordinance, the city has taken steps to insure the sobriety of taxicab drivers. Before the city will issue a license to a taxicab driver to drive a taxicab it requires he be examined by the city physician for "evidence of narcotic and alcoholic addiction." It also requires that he be "not addicted to the use of intoxicating liquors and drugs" as a requisite to obtaining a license as a taxicab driver.

In a very early case Judge McGirk, the first Judge and the original Chief Justice of this Court, considered the authority of St. Louis to forbid the operation of any licensed wagon, cart or dray by or in charge of a slave. This regulation was enacted under the city's authority to tax and regulate such vehicles. The court said: "We suppose ordinary regulations of a dray would be, to regulate the speed, the position of a dray, when standing or loading, with a view to the ease and comfort of other drays, carriages and persons that might be passing and repassing. In such cases, there might also be other things respecting drays and drivers, which could, under the direct power given, be regulated. It is believed to be a safe rule of construing powers, to confine resulting powers to those things, and those only, which are obviously necessary, proper, fit and act to accomplish the express or principal power. When that rule is applied to this case, we must ask ourselves the question, can drays be so regulated as to accomplish the use for which they are intended, without excluding slaves from being drivers. We think this question must be considered in the affirmative. We are of opinion that this ordinance, under the name of regulating drays, regulates slave labor, which is beyond the grant in the charter." The Mayor of St. Louis et al. v. Hempstead, 4 Mo. 242.

The city's contention that it has the power to enact such a regulation as incident to its express powers to control taxicabs in the use of the streets can not be sustained. The ordinance covers a subject that is not implicit [462] in or incident to such express powers. The city cannot draw the power to prohibit the use of liquor from the welfare clause.

"The general welfare clause of the charter of a city which follows a long list of powers like the one here, should not be construed so as to enlarge the powers of the city further than is necessary to carry into effect the specific grants of power." City of St. Louis v. King, 226 Mo. 334, 126 S.W. 495.

[14] The city is not expressly authorized, either by Section 6609 or by any other statute, to prohibit the possession, carrying, transportation or drinking of intoxicating beverages. The State Liquor Control Act covers both possession and transportation. Section 4884 forbids the possession of liquor only when the package is not properly labeled and sealed. Section 4932 forbids the transportation of liquor by automobile or other conveyance only when such liquor had not been inspected, labeled, and tax paid. Section 4904 permits municipalities to enact ordinances for the regulation and control of the sale of liquor, but any such regulation may not be inconsistent with the state law. However, authority to regulate the sale does not permit a municipality to prohibit generally the possession, transportation, or drinking of liquor where such is authorized by the state. It was held in City of Jacksonville v. C. A.R. Co., 274 Ill. 152, 113 N.E. 91, that the power to regulate the sale of intoxicating liquor does not confer authority to prohibit transportation, particularly for purposes recognized as legal by state laws. See 30 Am. Jur. Intoxicating Liquors, § 227.

[15] The ordinance is invalid also for the reason it violates the natural right of liberty guaranteed to all citizens. A citizen has the natural right to possess, carry, and use liquor. Of course this natural right is not absolute, and may be restricted for the benefit of society generally. The state under its police power may make reasonable regulations governing intoxicating liquor. But a city may not prohibit a citizen the use of liquor unless the state has authorized it to do so.

"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." City of St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30. And see City of St. Louis v. Roche, 128 Mo. 541, 31 S.W. 915; Ex Parte Smith,135 Mo. 223, 36 S.W. 628. "And while cities have great powers vested in them to pass ordinances which may be deemed expedient for the good government of the city and for the preservation of its peace and good order, there are certain fixed restrictions upon the exercise of this power, and against the enactment of oppressive ordinances under the guise of protecting the general public in their morals, peace and order. Municipalities are not guardiansof morals, as such, and therefore may not unduly interfere withthe liberty of the citizens by ordinances forbidding acts notunlawful or wrongful per se." (Emphasis mine.) City of Carthage v. Block, 139 Mo. App. 386, 123 S.W. 483.

But even if the state had delegated to the City of Springfield its police power to regulate the use of liquor, the ordinance would still be invalid. The ordinance must be considered in its entirety. It sweepingly prohibits everyone connected with the taxicab business the use of liquor. It regulates the use of liquor by customers. The ordinance does not attempt to protect taxicab passengers or the public using the streets by forbidding the operation of a taxicab by an intoxicated driver. As we have pointed out, addiction to liquor by taxicab drivers has been dealt with by another section of the whole ordinance, and drunken driving generally by state statutes. We find apposite in this case what was stated by the Illinois Supreme Court in City of Jacksonville v. C. A.R. Co., 274 Ill. 152, 113 N.E. 91, supra: "There is no statute which prohibits the drinking of intoxicating liquor, though the times, places and circumstances of such drinking may be and have been regulated by law." Citing Tarantina v. L. N.R. Co., 254 Ill. 624, 98 N.E. 999.

The "times, places and the circumstances" where the regulation in this case applies [463] are too general and too inclusive to be reasonable. As an example, we find where the state has enacted such regulations it has been specific. Section 4388 R.S. 1939, RSA provides: "Every person who, whilst actually employed in driving any stage, coach, wagon, omnibus, hack or other vehicle, shall be intoxicated . . . shall be deemed guilty of a misdemeanor . . ." Section 4389 provides a stiffer penalty for intoxication against every person while "actually employed in discharging the duties of "a pilot or engineer of any steamboat, or of an engineer on any railroad engine or of a motorman on an electric car. And Section 8401 states: "No person shall operate a motor vehicle while in an intoxicated condition." Thus the ordinance in question would be unconstitutional as its broad scope is an unreasonable invasion of a natural right, and not required for the protection of the public.

[16] I find the ordinance is unconstitutional for still another reason. Assuming for the purpose of argument only that the city has the authority to enact this ordinance as a regulation of the use of its streets, and that it invades no individual's constitutional rights, still it is unreasonable and arbitrary as class legislation. It does not apply to all drivers and to all owners of motor vehicles. Nor does it apply to all drivers and to all owners of all motor vehicles for hire, or even to all those which are engaged in hauling passengers for hire. It singles out taxicab owners, their employees, and drivers. It does not include motor busses.

"The state may not arbitrarily subject some to certain restrictions or requirements, leaving others, fairly and reasonably falling in the same class, free from the operation of such restrictions and requirements." Blind v. Brockman (Mo.)12 S.W.2d 742. And see State v. Julow, 129 Mo. 163, 31 S.W. 781. So in this case the city has not taken a natural class of persons, namely operators and owners of motor vehicles, or to classify even further, operators and owners of motor vehicles carrying passengers for hire. But it has decreed that within such a limited class, only taxicab drivers, owners, and employees may not use liquor.

The question of classification is a practical one. Not every person must be included under an ordinance. "It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the dangeris characteristic of the class named." (Emphasis mine.) Patsone v. Pennsylvania, 232 U.S. 138. The legislature "may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses." Central Lumber Co. v. South Dakota, 226 U.S. 157. "The legislative authorities may classify with reference to an evil to be prevented, and the legislation designed to prevent one evil is not void because it does not prevent another." Ballentine v. Nester,350 Mo. 58, 164 S.W.2d 378.

But in this case the city has decreed that of all the persons owning and operating motor vehicles on the streets, the use of liquor is an evil which is characteristic only of those in the taxicab business. It is true, we have held that in making traffic regulations there is a reasonable basis for the classification of taxicabs as distinguished from other motor vehicles, so that an ordinance for the regulation of traffic applicable only to taxicabs is not a special law. Jones v. Walker, 357 Mo. 476,209 S.W.2d 147. But the regulation we are considering is clearly not a traffic regulation, the evil aimed at is not even limited to the use of the streets.

The classification by the ordinance is plainly unreasonable and arbitrary on its face. The ordinance would be unconstitutional for this reason even if it could be held otherwise valid.

I dispute the ruling of the court that the City of Springfield has the authority to enact such an ordinance, and that the ordinance is valid. I am convinced the ordinance is void, so the judgment against appellant should be reversed.

Accordingly, I dissent.