Marshall v. Kansas City

355 S.W.2d 877, 93 A.L.R. 2d 1012, 1962 Mo. LEXIS 706

• Court: Supreme Court of Missouri
• Decided: April 9, 1962
• Docket: 48419
• Status: Published

Opinions

STORCKMAN, Judge.

This case involves the constitutionality of an ordinance of the city of Kansas City, Missouri, purporting to render it unlawful for restaurants, hotels and motels to refuse to serve or accommodate any person for any reason directly or indirectly relating to the race or color of such person. The plaintiffs, all engaged in the restaurant business, filed this action against the city of Kansas City seeking a declaration of the rights of the parties under the ordinance. The trial court sustained plaintiffs’ motion for judgment on the pleadings, held the ordinance unconstitutional, and permanently enjoined the defendant from enforcing it against the plaintiffs. The defendant appealed. In addition to the briefs filed by the parties, three briefs by amici curiae in support of the ordinance have been filed by leave.

Jurisdiction of the appeal is in the supreme court since the constitutionality of the municipal ordinance was within the issues of law tendered by the pleadings and decided by the trial court. Art. V, § 3, Constitution of Missouri 1945, V.A.M.S.; Kansas City v. Hammer, Mo., 347 S.W.2d 865.

On January 25, 1960, the plaintiffs filed their petition for a declaratory judgment under S.Ct. Rule 87.01 et seq., V.A.M.R. and Chapter 527, RSMo 1959, V.A.M.S., with a prayer that the ordinance be declared unconstitutional and void and that the defendant be enjoined from enforcing the ordinance. The defendant’s amended answer admitted the passage of the ordinance as set out in the exhibit attached to plaintiffs’ petition and asserted among other things that the ordinance was constitutional and enacted in the proper exercise of the defendant’s police power. The case was heard on plaintiffs’ motion for judgment on the pleadings and the defendant’s motion to dismiss and, in the alternative, for judgment on the pleadings. The judgment of the trial court rendered on June 20, 1960, overruled the defendant’s motion to dismiss and alternative motion for judgment on the pleadings and sustained plaintiffs’ motion for judgment on the pleadings and found the ordinance to be unconstitutional and void and not enforceable against the plaintiffs and permanently enjoined the defendant from enforcing the ordinance against the plaintiffs.

The defendant attacks the right of the plaintiffs to maintain the declaratory judgment action. The Declaratory Judgment Act specifically authorizes any person whose rights, status or other legal relations are affected by a municipal ordinance to have the validity of the ordinance determined and, even though the plaintiffs did not assert an intention to violate the ordinance, there was a justiciable controversy because uncertainty and insecurity existed with respect to the rights, status and other legal relations of the parties. Sections 527.020 and 527.120, RSMo 1959, V.A.M.S.; Sta-Whip Sales Co. v. City of St. Louis, Mo., 307 S.W.2d 495, 497-498 [1]; City of Nevada v. Welty, 356 Mo. 734, 203 S.W.2d 459, 460 [2]; Hudson v. Jones, Mo.App., 278 S.W.2d 799, 804 [5]. The trial court did not err in overruling defendant’s motion to dismiss plaintiffs’ petition.

The ordinance passed on January 15,1960, is as follows:

“AN ORDINANCE AMENDING CHAPTER 39 OF THE REVISED ORDINANCES OF KANSAS CITY, MISSOURI, 1956, ENTITLED 'OFFENSES GENERALLY AND REGULATION OF CERTAIN BUSINESSES,’ BY ENACTING ONE NEW SECTION TO BE ADDED THERETO TO BE KNOWN AS SECTION 39.261.

“BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

“Section A. That Chapter 39 of the Revised Ordinances of Kansas City, Missouri, 1956, entitled 'Offenses Generally and Regulation of Certain Businesses,’ is hereby amended by enacting one new section to be added thereto to be known as Section 39.261, said section to read as follows:

“Section 39.261. (a) It shall be unlawful for any owner, operator or manager of any hotel, motel or restaurant in Kansas City, •Missouri, which offers lodging or food to the public, or for any agent or employee of such owner or operator to refuse, withhold from or deny to any person, for any reason directly or indirectly relating to the race or color of such person, any of the accommodations, advantages, facilities or services of such hotel, motel or restaurant.

“(b) The terms ‘hotel’ and ‘motel,’ as used in this ordinance, shall include every establishment offering lodging to transient guests for compensation, and which is not a bona fide private club, but said terms shall not apply to any such establishment if the majority of occupants therein are permanent residents.

“(c) The term ‘restaurant,’ as used in this ordinance, shall include every cafe, cafeteria, coffee shop, sandwich shop, snack bar, supper club, soda fountain, soft drink or ice cream parlor, luncheonette, or other similar establishment which offers food for purchase and consumption on the premises, and which is not a bona fide private club, but the term ‘restaurant’ shall not apply to taverns and bars.

“(d) There is hereby established a fair public accommodations committee, to be composed of three members of the commission on human relations, appointed by the Mayor for terms of one year. The committee shall receive and investigate, with assistance from the staff of the city counselor and the said commission, all complaints of alleged violations of this ordinance. The committee shall endeavor to adjust such complaints by education, persuasion, and conciliation between the parties affected. If these efforts fail to resolve the problem promptly, and no later than thirty days after receiving a complaint, the committee shall refer the complaint to the city counselor for appropriate action.

“(e) Conviction of any violation of the provisions of this ordinance shall be deemed a misdemeanor punishable by a fine of not less than $25 and not more than $200 for each offense.

“(f) This section shall neither add to nor detract from any civil remedies now available to persons subjected to racial discrimination in hotels, motels and restaurants.”

In general the plaintiffs contend that they have no common-law obligation to serve every orderly person who presents himself such as innkeepers have, that they have a constitutional right to serve or reject customers for any reason they may choose, and that the defendant city is without authority to enact a valid ordinance prohibiting their discriminating against customers on account of race or color. Whether restaurateurs are under a common-law obligation to serve all proper persons alike does not seem to have been decided in this state, but there are cases from other states tending to support the plaintiffs’ contention. We may assume for the purpose of this case that the common-law obligation of innkeepers does not extend to restaurateurs.

A number of states have adopted statutes designed to secure to all persons equal rights and privileges in places where the public is generally served, accommodated or entertained. In some instances violation of such statutes is made a misdemeanor and others provide a forfeiture to the party aggrieved or give him a right of action to recover damages. “Laws containing such guaranties are generally known as ‘civil rights statutes,’ and their validity has been made the subject of frequent attack, based upon the contention that they violate constitutional provisions prohibiting the deprivation of life, liberty, or property without due process of law. Where the question has been raised, however, it has been held that such legislation is a proper exercise of the police power of the state.” 10 Am.Jur., Civil Rights, § 8, p. 902. Under some of these civil rights statutes, restaurants are among the businesses specifically forbidden to discriminate on account of race or color. 10 Am.Jur., Civil Rights, § 21, p. 914.

Such statutes are in harmony with the 14th Amendment to the Constitution of the United States, § 1, which provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Since the decision in “The Civil Rights Cases”, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 83S, it has generally been held that these provisions of the 14th Amendment are prohibitory as to the states only, that acts of Congress with respect thereto are not operative directly upon private persons in the several states and that states, though not required to do so, may pass laws consistent with and not in violation of the provisions of the 14th Amendment. Unquestionably this state under its police powers has the right to pass civil rights laws of this sort hut has not done so. The essential question in this case is how much of the state’s police power to regulate businesses and vocations at the local level can he and has been delegated to the defendant city.

Businesses, trades, occupations and vocations carried on within a municipal corporation are subject to reasonable regulation by the municipal corporation under its police power which may be delegated to the municipal corporation in express terms or by implication. Komen v. City of St. Louis, 316 Mo. 9, 289 S.W. 838, 840 [4]; 7 McQuillin Municipal Corporations, 3d Ed., § 24.321, pp. 191-192. Generally the cases from other jurisdictions cited by the plaintiffs which hold that restaurateurs have the right to serve or not to serve persons as they may for any reason choose are damage actions and a prosecution under a statute or municipal ordinance of the kind before us was not involved. Younger v. Judah, 111 Mo. 303, 19 S.W. 1109, 16 L.R.A. 558, also a damage suit, held there was no actionable wrong in a theater operator having and enforcing rules for the separate seating of whites and negroes and stated, 19 S.W. 1109, 1110: “This state has enacted no law having any application to the present case. It does not undertake to say how theaters and other places of amusement shall be managed. As the state does not by itself or through the city of Kansas undertake to regulate theaters, and as the clauses of the fourteenth amendment before noted are prohibitory of state action only, they have nothing to do with the question in hand.” Emphasis added.

The defendant is a municipal corporation under a home rule charter as provided by Art. VI, § 19, of the Constitution of Missouri. As such it has the right to adopt and amend its charter and has such powers as are designated by its charter and which are consistent with the constitution and laws of the state. Article I, § 1, subd. § 57, of the Charter of Kansas City authorizes the city: “⅞ * * to license, tax and regulate any and every person, firm, association, or corporation engaged in the occupation, business, trade, pursuit, profession, calling, employment, vocation, avocation or practice of keeping, maintaining, conducting, managing, directing, operating, overseeing or superintending any * ⅛ * hotel * * * or * * * restaurant * * *.”

Other pertinent charter provisions are:

Article 1, § 1, subd. § 29: “To define, prohibit, abate, suppress, prevent or regulate all acts, practices, conduct, businesses, occupations, callings, trades, uses of property, and all other things whatsoever detrimental or liable to become detrimental to the health, morals, comfort, prosperity, safety, convenience or welfare of the inhabitants of the city, and to prescribe limits within which the same shall be prohibited.”

Article 1, § 1, subd. § 61: “To enact all needful ordinances for preserving order, securing persons or property from violence, danger and destruction, for protecting public and private property, for promoting the public health, safety, convenience, comfort, morals, prosperity and general interests and welfare, * * *.”

Article 1, § 3, of the charter provides: “The enumeration of any particular power granted in this charter shall not be construed to limit or impair any general grant of power in this charter contained.”

Thus Kansas City has the general power to define, prohibit and regulate acts, practices and conduct of businesses which are detrimental to the health, comfort, safety, convenience and welfare of its inhabitants as well as the specific power to license and regulate restaurants. The term “regulate” as used in a delegation of municipal powers is one of broad import; it means generally to prescribe the manner in which a thing licensed may be conducted. Wilhoit v. City of Springfield, 237 Mo.App. 775, 171 S.W.2d 95, 100 [10]; Lauck v. Reis, 310 Mo. 184, 274 S.W. 827, 832; State ex rel. Wagner v. Fields, 218 Mo.App. 155, 263 S.W. 853, 857 [5]; Sluder v. St. Louis Transit Co., 189 Mo. 107, 88 S.W. 648, 651, 5 L.R.A.,N.S., 186.

A grant of power to regulate a business or vocation carries with it the authority on the part of the city to exercise the police power impliedly and necessarily vested in it in order to accomplish the municipal function delegated. Komen v. City of St. Louis, 316 Mo. 9, 289 S.W. 838, 840 [3]; Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485, 488 [5] ; City of St. Louis v. Southcombe, 320 Mo. 865, 8 S.W.2d 1001, 1003 [3]; Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70, 73 [8, 9]; Wilhoit v. City of Springfield, 237 Mo.App. 775, 171 S.W.2d 95, 100 [10]; McGill v. City of St. Joseph, 225 Mo.App. 1033, 38 S.W.2d 725, 729 [10]; Roper v. Greenspon, 272 Mo. 288, 198 S.W. 1107, 1109 [4], L.R.A.1918D, 126; Dillon, Municipal Corporations, 5th Ed., § 237, pp. 448-449.

The plaintiffs contend, however, that the enactment of a “civil rights” ordinance is beyond the police powers of a municipal corporation, citing 7 McQuillin, Municipal Corporations, 3d Ed., § 24.430, which states: “While a municipality must observe and itself not violate constitutional or statutory guaranties of equality of civil rights irrespective of race or social condition, insofar as these guaranties bind municipal governments, a municipal corporation ordinarily is without power to legislate upon, or extend, equality of civil rights. For example, a 'civil rights’ ordinance relating to restaurants has been held to be beyond municipal power.” Another section of the same work throws additional light upon what is meant by a civil rights ordinance as used in § 24.430. 6 McQuillin, Municipal Corporations, 3d Ed., § 22, p. 281, states: “The well-established general rule is that a municipal corporation cannot create by ordinance a right of action between third persons or enlarge the common law or statutory duty or liability of citizens among themselves. Accordingly, an ordinance designed as a ‘civil rights’ measure is void.” Nance v. Mayflower Tavern, 106 Utah 517, 150 P.2d 773, is cited as the sole authority in support of McQuillin’s statement in these two sections that a civil rights measure or ordinance is beyond municipal power and void. Nance was an action to recover damages for defendant’s refusal to serve food to plaintiff. The ordinance of Salt Lake City provided in substance that “no orderly person shall be refused admission” to a restaurant during the time it was open for business. Whether the ordinance purported to create a civil liability for damages does not appear from the opinion. Without defining the kind of “civil rights” measure intended, the Utah court held that there was no statutory or constitutional authority for municipalities “to legislate in regard to civil rights.” 150 P.2d at page 774, column 2. It further held that the duties and liabilities placed upon inns and innkeepers did not .apply to restaurants and concluded that the complaint did not state a cause of action for damages because the defendant had breached no duty owed to the plaintiff under the common law, by statute or by valid city ordinance. If the Salt Lake City ordinance undertook to impose a liability for damages, it was broader in scope than the Kansas City ordinance which expressly disavows any intent or purpose to create an action for damages by expressly providing that the ordinance “shall neither add to nor detract from any civil remedies now available to persons subjected to racial discrimination”. Paragraph (f) of § 39.261. We regard the Nance case as authority only for the proposition that a municipal corporation absent statutory or constitutional authority cannot by ordinance create a cause of action for damages for denial of “civil rights”.

The pocket part annotation to § 24.430 cites a more recent case, apparently considered contrary to Nance; it is District of Columbia v. John R. Thompson Co., Inc., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480. The Thompson case was a prosecution for violation of an enactment by the legislative assembly of the District which provided a fine and forfeiture of license for the refusal of restaurateurs, among others, to refuse to serve a person on account of race, color, or previous condition of servitude. The District government was likened to a municipal corporation and the grant of police power was held to be broad enough and sufficient to authorize the adoption of a law prohibiting discriminations in the service at restaurants. In the course of the opinion in the Thompson case, the United States Supreme Court stated: “And certainly so far as the Federal Constitution is concerned there is no doubt that legislation which prohibits discrimination on the basis of race in the use of facilities serving a public function is within the police power of the states.” 73 S.Ct. 1012. With respect to the nature of such an antidiscrimination law, the court further stated: “The laws which require equal service to all who eat in restaurants in the District are as local in character as laws regulating public health, schools, streets, and parks.” 73 S.Ct. 1014. These are the only two cases touching directly on the powers of a municipal corporation to enact a “civil rights” ordinance. We consider the Thompson case to be more persuasive than the Nance case especially since the type of ordinance is shown to be essentially the same as the one involved in the case at bar.

A municipal corporation has been referred to as a miniature state within its locality and as an instrumentality of the state established for the convenient administration of local government. State ex inf. Ellis ex rel. Patterson v. Ferguson, 333 Mo. 1177, 65 S.W.2d 97, 99 [9], cert. den. 291 U.S. 682, 54 S.Ct. 559, 78 L.Ed. 1070; District of Columbia v. John R. Thompson Co., Inc., 346 U.S. 100, 73 S.Ct. 1007, 1012, 97 L.Ed. 1480.

We are constrained to hold that this municipal ordinance, designed to prevent discrimination by reason of race or color in restaurants, bears a substantial and reasonable relation to the specific grant of power to regulate restaurants and to the health, comfort, safety, convenience and welfare of the inhabitants of the city and is fairly referable to the police power of the municipal corporation. Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485, 490 [10]; Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 636-637 [8]; City of St. Louis v. Southcombe, 320 Mo. 865, 8 S.W.2d 1001, 1003 [3]; District of Columbia v. John R. Thompson Co., Inc., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480; City of Springfield v. Mecum, Mo.App., 320 S.W.2d 742, 748 [10],

State ex rel. Carpenter v. City of St. Louis, 318 Mo. 870, 2 S.W.2d 713, 722 [13], has adopted this definition of police power as it now appears in 16 C.J.S. Constitutional Law § 174, p. 889: “Police power is the exercise of the sovereign right of a government to promote order, safety, health, morals, and the general welfare of society, within constitutional limits.” The police power is an essential attribute of government without which constitutional guaranties of personal and property rights would be ineffective and meaningless. In their very nature, neither the police power nor constitutional limitations can be absolute; they are necessarily relative and dependent in the complexities of modern life. 5 Mc-Quillin, Municipal Corporations, 3d Ed., § 19.22, p. 531; Ex parte Smith, 231 Mo. 111, 132 S.W. 607, 609 [3].

In support of their contention that the ordinance violates their constitutional rights to contract with whom they choose in regard to their restaurant services, the plaintiffs cite Gideon-Anderson Lumber Co. v. Hayes, 348 Mo. 1085, 156 S.W.2d 898, which holds at p. 899 [2, 3] : “It is fundamental that liberty to contract is one of the rights protected by the due process clause. * * * But it is equally well established that the right is not absolute and universal. As stated broadly in the texts cited below, the state may restrict the right under the police power for the general welfare, and prescribe the manner in which contracts shall be made. However such restrictions must not be arbitrary or unreasonable and can be justified only by conditions calling for their imposition. * * * ” The case does not support the plaintiffs’ contention that the right to contract is an absolute one. It recognizes that the state may under its police power impose reasonable restrictions on the right.

It has not been demonstrated that the ordinance in question is an arbitrary or unreasonable exercise of the police power of the city; hence the ordinance is not unconstitutional as being in violation of the plaintiffs’ asserted rights under Art. I, §§ 2 and 10 of the Missouri Constitution to choose and contract discriminately with their customers on the basis of race and color. Readey v. St. Louis County Water Co., Mo., 352 S.W.2d 622 [2, 4]; Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485, 488 [1, 2]; Thompson v. St. Louis-San Francisco Ry. Co., 334 Mo. 958, 69 S.W.2d 936, 942 [7, 8]; Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 636-637 [8]; City of St. Louis v. Southcombe, 320 Mo. 865, 8 S.W.2d 1001, 1003 [4],

The plaintiffs further contend that the ordinance is a special law in violation of Art. Ill, § 40, of the Missouri Constitution, because it does not include other businesses such as clothiers whose services the plaintiffs contend are as necessary as their own. As a general rule, it is not what a law includes that makes it unconstitutional as a special law, but what it excludes, and a law is not special in the constitutional sense if it applies alike to all of a given class provided the classification thus made is not arbitrary or without a reasonable basis. It is common knowledge that “food and shelter” or “food and lodging” are among man’s basic needs and are often provided by the same establishment. They are often the subject of legislation either singly or in combination. There was no showing that any other business had been unreasonably or arbitrarily excluded from the Act. In these circumstances the businesses embraced by the ordinance do not constitute an improper classification and it is not a special law in violation of the constitutional provision. The Borden Co. v. Thomason, Mo., 353 S.W.2d 735 [5, 33-36]; ABC Liquidators, Inc. v. Kansas City, Mo., 322 S.W.2d 876, 885; Thompson v. St. Louis-San Francisco Ry. Co., 334 Mo. 958, 69 S.W.2d 936, 943 [9]; City of Springfield v. Stevens, 358 Mo. 699, 216 S.W.2d 450.

The plaintiffs further assert that the ordinance is illegal and void in that it attempts to establish a misdemeanor which is an offense beyond the municipal powers of the city. The nature or classification of the ordinance is not determined by its designation but rather by its content and character. The term misdemeanor is defined by statute as including “every offense punishable only by fine or imprisonment in a county jail, or both”. Section 556.040, RSMo 1959, V.A.M.S. The penalty of the ordinance is a fine only. Its character, content and form is that of a city ordinance. It is not rendered invalid by reason of being referred to as a misdemean- or.

We have considered all of plaintiffs’ attacks upon the validity of the ordinance and •find them to be without merit. The court •erred in holding and declaring that the ordinance was unconstitutional and invalid.

The judgment is reversed and the cause remanded with directions to enter a declaratory judgment not inconsistent with views expressed in this opinion.

■WESTHUES, C. J., and HOLLINGS-WORTH and HYDE, JJ., concur. EAGER, J., dissents in separate opinion filed. LEEDY, J., dissents and concurs in the dissenting opinion of EAGER, J. DALTON, J., dissents in separate opinion filed.