City of St. Louis v. King

126 S.W. 495, 226 Mo. 334, 1910 Mo. LEXIS 67

• Court: Supreme Court of Missouri
• Decided: March 15, 1910
• Status: Published

Opinion

GANTT, P. J.

This was an action for the violation of an ordinance of St. Louis, known as Ordinance No. 19991, Section 1447, of the Revised Ordinances of said city, approved April 3, 1900, which provides: “Section 1447, Obscene Newspaper Advertisements Prohibited. — Any person who shall in the city of St. Louis advertise or cause to be advertised, in any newspaper printed or circulated in said city, or who shall print or publish any advertisement or notice in any newspaper printed or circulated as aforesaid, purporting to give information as to the treatment of venereal or private or womb diseases, or impotency, self-abuse, sterility or any disease pertaining to the genital organs, or purporting to give information from whom or where medical treatment or medicine may be procured in the above-mentioned cases, or any of them, shall be guilty of a misdemeanor and upon conviction, shall be fined not less than fifty nor more than five hundred dollars for each and every offense.”

Defendant was found guilty in the police court and appealed to the St. Louis Court of Criminal Correction, in which he filed a motion to quash, on the ground that the information did not state any offense under the law or the ordinance; that the ordinance was unconstitutional (hut without citing section or article of the Constitution); that it seeks to regulate matters which are not of municipal concern; that it unnecessarily prohibits the advertising of a legitimate and duly licensed business and is an unconstitutional invasion of personal liberty and imposes unnecessary restrictions upon the natural rights of physicians duly licensed by the State.

This motion was overruled and exceptions saved. The cause was then tried upon an agreed statement of facts, to-wit, that defendant was a duly licensed physician and had been practicing his profession a number of years in St. Louis; that the diseases set out in his advertisement are such as are recognized by the medical profession and their treatment is taught in the medical colleges and such diseases are commonly treated by the medical profession and in some cases the patient is cured and in some is only relieved. That the advertisement was put in the “Globe Democrat,” a daily newspaper published and printed and circulated in said city and throughout the State of Missouri; that the advertisement contained the following words and matter, to-wit:

“AN EXTRAORDINARY MEDICAL ANNOUNCEMENT.

“Free Examination and Diagnosing of any Deep-Seeded Disease of Man.

“Specific Blood Poison.

■ “It is well that all men should know the consequences of certain, terrible diseases, the consequences .if the disease is imperfectly treated. The gravest of these is specific, vital, contracted blood poison, the disease that is first manifested by a stubborn sore, later ■by a rash on the body, then by the breaking out of the ulcers, swelling of the glands, falling out of the hair .and eyebrows. You cannot mistake these symptoms.

“If you find yourself in the clutches of blood poison don’t waste time and money on hot-spring baths, specifics, mercury, potash or other mineral mixtures and poisons that will give only temporary relief.

“Dr. King’s cure for blood poison, originated and perfected by him, is absolutely safe, rapid and permanent, and leaves no injurious effects. Under his ■treatment every external symptom soon disappears, while the blood, the tissues, the nerve fibers, the bones and the whole system are cleansed, strengthened and restored to perfect health and purity.

“Nbevo-Yital Debility.

“Cerebral — When the mental forces are impaired.

“Spinal — When the spinal centers are involved and motor power is diminished.

“ Vital — When the great sympathetic nerve system is affected and the forces that govern the organs of life are reduced by the baneful reflex effects of diseases incident to the organs of the- pelvis.

‘ ‘ Private Diseases.

“Newly contracted and chronic diseases are cured by Dr. King. He relieves all burning and itching and stops inflammation and unnatural weakness in twenty-four hours; he effects cures in seven days. ’ ’

Upon the validity of section 1447 of the Municipal Code of St. Louis depends the correctness of the judgment of the Court of Criminal Correction, imposing upon him a fine for a violation of said ordinance.

On the part of the city it is asserted that the ordinance finds abundant authority in the charter of St. Louis, paragraph 5 of section 26 of article 3, wherein power was given to pass ordinances “to license, tax and regulate lawyers, doctors, doetresses . . . [Scheme and Charter of St. Louis, 2 R. S. 1879, p. 1586.] It is conceded that this power to license and tax doctors of medicine was nullified by an Act of the General Assembly of this State of March 6, 1879 (Laws 1879, p. 45), now known as section 5260, Revised Statutes 1899, but it is insisted that the power to regulate doctors was not affected by the said act of the Legislature, and under the grant of authority to regulate, it was competent for the municipal assembly to pass this ordinance. Moreover, it is insisted by counsel for the city that authority to enact this ordinance can be found in the “general welfare clause” of the charter, viz.: “to pass all such ordinances, not inconsistent with the provisions of this charter, or the laws of the State, as may be expedient, in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures and enforce the same by fines and penalties not exceeding $500’,” etc. [Par. 14, sec. 26, art. 3, Scheme and Charter of St. Louis, 1876.]

On the other hand, defendant maintains that the only power of attorney, so to speak, the city had to pass this ordinance, was this general welfare clause and that in the ascertainment of the powers of the city certain principles must be accepted, to-wit, that municipal corporations possess and can only exercise such, powers as are granted in express words or those necessarily incident to or implied by the powers expressly granted; they are creatures of the law, established for special or local purposes and their corporate acts must not only be authorized by their charters but their acts must be done by such officials or agents in such manner-as their charters direct. [Dillon on Municipal Corporations (4 Ed.), p. 145; City of Nevada v. Eddy, 123 Mo. 557.]

It is asserted by counsel for the city that it has the inherent police power to protect public morals, and that this advertisement flagrantly offends against public morals and decency. In the solution of this controversy it is well that we keep in view certain principles which must be regarded as settled in this jurisdiction.

In State ex rel. v. Telephone Company, 189 Mo. 83, it was said by this court In Banc, in the examination of the corporate powers of Kansas City under its special charter to regulate telephone tolls: “It is not every power that may be essayed to be conferred on the city by such a charter that is of the same force and effect as if it were conferred by an act of the General Assembly, because the Constitution -does not confer on the city the right, in framing its charter, to assume all the powers that the State may exercise within the city limits, but only powers incident to its municipality. Yet the Legislature may, if it sees fit, confer on the city powers not necessary or incident to the city government. There are governmental powers the exercise of which is essential to the happiness and well being of the people of a particular city, yet which are not of a character essentially appertaining to the city government. Such powers the State may reserve to be exr ercised by itself, or it may delegate them to the city, but until so delegated they are reserved.”

In Knapp v. Kansas City, 48 Mo. App. 485, the doctrine is tersely stated to be: “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and none others: First, those granted in express words. Second, those necessarily or fairly implied in or incident to the powers expressly granted. Third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. [Kansas City v. Swope, 79 Mo. 446; Leach v. Cargill, 60 Mo. 316; Kiley v. Oppenheimer, 55 Mo. 374.] And any fair reasonable doubt concerning the existence of the power is resolved by the courts against the corporation. [St. Louis v. Bell, 96 Mo. 623; Ex parte Mayor, 78 Ala. 419; Dillon, Mun. Corp., secs. 90 and 91.] But it is contended that in the [general welfare’ provision of the charter are to be found the police powers of the city; that this provision is a sort of general reservoir, wherein are pent up a vast store of illimitable and undefined police powers, and that from this source the disputed authority may be deduced. The logic of defendant’s contention is that this charter provision supplements the three classes of powers, which we have already mentioned, with- a fourth; that if the power to pass any ordinance that the city may deem expedient in maintaining the peace, order, good government, health and welfare of the city or its trade and manufactures cannot be found among any of the powers we have enumerated which a city may exercise, it may be drawn from this source. The police power has for its foundation the principles of the maxim, Sic utere tuo ut alienwn non laedas. The extent of this power of a city thus derived is subject to, and dependent upon, the limitations of its charter. The city is a creature of the State; and, before it can exercise a particular police power, it must fairly be included in the grant of powers by its charter. [Tiedeman’s Police Pow., sec. 212.] The exercise of any police power not within the limitations of its charter is a municipal usurpation and void. The general welfare clause of the charter of a city which follows a long list of specific 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.” [15 Am. and Eng. Ency. Law, 1187.]

In St. Louis v. Packing Company, 141 Mo. 375, it was ruled that under the charter power to declare and abate nuisances it was not competent for the city to declare that a nuisance, which is not so in fact, either at common law or by statute. In a number of well-considered cases, it has been ruled that the city’s power was only over such acts as may affect the public peace, decency and good order and does not authorize punishment for private conduct however reprehensible it may be in the matter of morals. Thus in State v. Horne, 115 N. C. 739, an ordinance prohibiting the use of profane language in the town was held invalid, but, added the court, it would be otherwise if the ordinance prohibited the use of such language as amounted to boisterous or disorderly conduct, or to a disturbance of the peace. In State of Minn. v. Hammond, 40 Minn. 43, the Supreme Court held an ordinance void which imposed a penalty upon any person who committed an act of indecency within the limits of the city, saying, the city’s power was only over such acts “as may affect the public peace, decency and good order, and does not authorize punishment for private conduct however reprehensible it may be in the matter of morals.” To a like effect are the cases of Bregguglia v. Vineland, 53 N. J. L. 168; State v. Buell, 45 Ark. 336; Paralee v. Camden, 49 Ark. 165. In Walsh v. The City of Union, 13 Oregon 589, though the city was authorized to “prevent and restrain any riot, noise, disturbance or disorderly assemblage in any street, house or place in the city,” the court held that an ordinance which imposes a penalty on any person “who shall draw any dangerous or deadly weapon upon the person of another” was invalid.

Prom these cases we deduce this principle, that although an act sought to he prohibited by city ordinance is vicious and properly within the power of a State Legislature to consider, it is not a proper subject for municipal legislation, unless the charter grants the power to the municipality. In the consideration of the validity or non-validity of this section 1447 of the municipal code, we are not called upon to consider the question of medical ethics, nor yet a question of private individual morals, but a question as to power and the scope of the grant of power by the State to the city of St. Louis, and unless authority, can be found either in the express language of the charter or necessarily or fairly implied in the powers expressly granted or essential to the declared objects and purposes of the corporation, then the mere fact that it is aimed to prevent the practice of something that is immoral, or even which a State Legislature might punish, will not sustain the ordinance. The advertisement in question does not fall within the condemnation of sections 2176, 2177, and 2178, which have announced the legislative policy of this State with respect to objectionable advertisements and it is quite evident that the ordinance in this case goes further than this legislative enactment and does not fall within the express authority given by the charter and is not indispensably necessary to the powers therein expressly granted. In this connection section 6258, Revised Statutes 1899, adds much to the proper settlement of the validity of this ordinance. By that section it is provided: ‘ ‘ Any municipal corporation in this State, whether under general or special charter, and having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the State, unless otherwise prescribed or authorized by some special provision of its charter, shall confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the State law upon the same subject.” And it is provided in the Constitution, section 23, article 9, that the charter and amendments thereto of the city of St. Louis shall always be in harmony with and subject to the Constitution and laws of Missouri. Under sections 2176, 2177 and 2178, we have laws enacted for the promotion of the morals of the people by prohibiting obscene and licentious publications and those of indecent and scandalous character. And the State in these sections has defined its policy by a general law, but this ordinance upon this same subject has gone further and enlarged the statute.

Nor can it be said that this ordinance is of a peculiarly local or municipal character. The vice or practice at which it is aimed is not necessarily and naturally connected with a congested city population. The conduct sought to be prohibited is no more injurious because committed in a city than if committed in a country district. Whatever may be said as to the indelicacy of this publication, after careful consideration, we have been unable to find any warrant for the ordinance making it an offense, either in the charter or by any necessarily implied incident to those powers. Nor can we believe that it is necessary to carry into effect the specific grants of power in the charter. While, as was said in Carpenter v. The Reliance Realty Company, 103 Mo. App. 480, the police powers of a city ought to be construed with reasonable liberality, before an ordinance is enforced which will change 'the fundamental theory of the law so that the change shall be sensibly felt in the law’s practical effect-, its validity should appear from some statute delegating the power to it, not be implied merely because the result would be wholesome.

But applying the ordinance itself to the advertisement in this case, it is obvious that the advertisement does not contain any reference to many of the diseases denounced in the ordinance itself. As to “whether the advertisement is obscene, we think it should be measured by the established judicial precedents as to what constitutes obscenity. In United States v. Moore, 129 Fed. 159, Judge Philips, quoting, says: “The word ‘obscene’ when used, as in the statute, to describe the character of a book, pamphlet or paper means containing immodest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall, whose minds are open to such immoral influences.” In People v. Muller, 96 N. Y. 411, the Court of Appeals said: “The test of an obscene book was stated in Regina v. Hicklin, L. R. 3 Q. B. 369, to be whether the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences and who might come into contact with it.” It is clear that some of the diseases are not covered by the ordinance and while some of them may be included therein, the reference to them is couched in language in and of itself not offensive. It is significant that though we have a statute aimed directly at obscene publication, no attempt has been made to prosecute the newspaper publishing this advertisement, but the effort is made to prevent its repetition by invoking this ordinance against the physician who resorts to the advertisement. It is conceded by the city that however indelicate it is in a physician to advertise his business, it is a matter with which the common law and no statute in this State has ever undertaken to interfere. The contention is that the defendant has advertised in such a way as to shock the public morals and lower the moral tone of the community. However opposed to a proper code of ethics and indelicate as it may be for a physician to advertise, if we accept the test of obscenity laid down in Regina v. Hicklin and followed in numerous cases in this country, we are unable to come to the conclusion that this advertisement is an invitation to any person to participate in any immorality or to corrupt or deprave the minds of those into whose hands the publication might fall. The learned counsel for the city have cited us to numerous cases, the majority of which áre in the Federal decisions interpreting the laws in regard to obscene publications passing through the mails and as to the meaning of the statutes denouncing this character of pamphlets, books, etc., but counsel have not been able to put their hands upon any-decision of a court of last resort, nor have we been able to find one, in which a city ordinance of the character of the one under which this prosecution is waged has been upheld as a valid exercise of the general police power of a city. We think this ordinance cannot find support in the charter provision in regard to the regulation of doctors nor in the general welfare clause of the charter of St. Louis.

Applying the well-established doctrine in this State, we are constrained to the opinion that this ordinance must fail because the power to enact it is not conferred in the charter and is not necessarily incident to any power that is expressly granted in the charter, and that the ordinance itself is not in harmony with the statutory' law of this State on this subject, but has endeavored to enlarge the powers of the city further than is necessary to carry into effect the specific grants of power. There are other propositions presented with great clearness by counsel, but the conclusion we have reached disposes of the controlling points in the case, and hence it is not necessary to discuss others. For the reasons given we hold the ordinance invalid, and the judgment of the Court of Criminal Correction must therefore • be and is .reversed.

Burgess and Fox, JJ., concur.