State ex rel. Schmitz v. City of St. Louis

551 S.W.2d 848, 1977 Mo. App. LEXIS 2155
CourtMissouri Court of Appeals
DecidedApril 5, 1977
DocketNo. 38120
StatusPublished
Cited by4 cases

This text of 551 S.W.2d 848 (State ex rel. Schmitz v. City of St. Louis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Schmitz v. City of St. Louis, 551 S.W.2d 848, 1977 Mo. App. LEXIS 2155 (Mo. Ct. App. 1977).

Opinion

NORWIN D. HOUSER, Special Judge.

Irwin H. Schmitz, a resident of the Shaw District, an area in the City of St. Louis bounded by Shaw, Tower Grove, Magnolia and Grand Avenues, sued the city, mayor and director of the department of streets, to have an ordinance declared void, and to secure a judicial declaration that barriers erected at designated intersections constitute a nuisance and to have the court order their removal and restore previously existing traffic regulations in the area, etc. Eight other residents of the area intervened as parties plaintiff. The court found against plaintiffs. Plaintiff Schmitz has appealed.

The trial court’s findings of fact, incorporated in appellant’s brief as his statement of facts and agreed to by respondents, cannot be improved upon and are adopted by this Court as the facts of the case, as follows:

On or about March 1, 1975, defendant William J. Wilson, the Director of the Department of Streets of the City of St. Louis, in furtherance of a comprehensive traffic pattern program for the area bounded by Shaw, Magnolia, Tower Grove, and Grand Avenues, erected barricades on certain thoroughfares within the area and designated certain streets for one-way traffic. This action was taken by the director pursuant to Section 821.060, Revised Code of the City of St. Louis, as amended by Ordinance No. 56455, approved March 7,1973. As amended, the ordinance provided that any emergency and temporary regulations made by the traffic commission would remain in full force and effect until modified or set aside by the commissioner or by the Board of Aldermen.

[850]*850Plaintiffs, residents of the affected area, filed an action seeking, in effect, to have the barricades removed and the one-way street designations set aside, to have the ordinance declared unconstitutional as a delegation of legislative authority and to permanently enjoin the City from enforcing the traffic pattern program. The original petition alleged that § 821.060 as amended, constituted an unconstitutional delegation of legislative power to the Director of the Department of Streets and that the action taken pursuant thereto was unlawful and further alleged that plaintiffs were caused to travel greater distances at great expense thereby endangering their lives.

On November 21, 1975, the Board of Aldermen of the City of St. Louis enacted Ordinance 57087, entitled “An ordinance pertaining to the establishment and changes in one-way street patterns in the Shaw Neighborhood area and authorizing the Director of Streets to install barricades to effect the closing and/or diverting of traffic at certain intersections and containing an emergency clause.” The ordinance was signed and approved by the Mayor on December 11, 1975. It covered the same geographical area and adopted most of the regulations of the Director’s comprehensive traffic pattern program, although certain one-way streets were eliminated as were some of the barricades. However, the ordinance expressly authorized the installation of barricades at the intersection of Flora Place and Tower Grove Avenue to restrict the flow of vehicular traffic and the installation of traffic diverters at two intersections to control the direction of vehicular traffic.

The barricades and traffic diverters consist of metal posts imbedded in the surface of the street linked by heavy chain and they effectively prevent the passage of vehicular traffic. The comprehensive traffic pattern plan was adopted after several public meetings, and modifications of the plan were made from time to time. At the time of the Circuit Court’s ruling, all traffic signs, signals, devices, barricades, one-way streets, and regulations in effect in the pertinent geographical area were in conformity with the specifications of Ordinance No. 57087.

Subsequently, plaintiff Schmitz filed his second amended petition, alleging that Ordinance No. 57087 was in direct violation of § 229.030, RSMo 1969 and that the enactment of said ordinance was in excess of the constitutional limitation of power granted to the City of St. Louis by Article YI, § 19(a) of the Missouri Constitution, and in excess of the power granted to the City of St. Louis by § 304.120, RSMo 1969, and that the barricades authorized by said ordinance constituted a nuisance per se, and should be removed.

Thereafter, plaintiffs and defendants filed motions for summary judgment, each side praying for judgment as a matter of law, as there was no genuine issue as to any material fact.

The Court denied plaintiffs’ motion for summary judgment, and sustained defendants’ motion for summary judgment, and issued its findings of fact, conclusions of law denying plaintiffs any relief.

Section 229.030, RSMo 1969 provides: “Public roads shall be cleared of all obstructions therein that hinder or interfere with travel or traffic thereon, * *

Section 304.120 2., RSMo 1969 provides: “Municipalities, by ordinance, may: (1) Make additional rules of the road or traffic regulations to meet their needs and traffic conditions; (2) Establish one-way streets and provide for the regulation of vehicles thereon; * *

Section 82.190, RSMo 1969 provides: “Such city shall have exclusive control over its public highways, streets, avenues, alleys and public places, and shall have exclusive power, by ordinance, to vacate or abandon any public highway, street, avenue, alley or public place, or part thereof, any law of this state to the contrary notwithstanding.”

Section 71.010, RSMo 1969 provides: “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 [851]*851state, 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.”

The first question is whether the ordinance violates § 229.030. Appellant contends that by passing § 229.030 the General Assembly preempted the whole field relating to obstruction of public roads and has eliminated any action by municipal governments on this subject, and therefore as long as an area is a public road no obstruction can be placed thereon which will interfere with or hinder traffic; that the barricades not only interfere with and hinder but completely eliminate traffic over and along the points where erected, and that these barricades may not be approved on the ground that they are traffic control devices like traffic islands and diverters (which may be “negotiated around” and which facilitate traffic) because they eliminate traffic and completely prevent passage of automobiles.

The barricades are obstructions and they not only hinder and interfere with but also literally eliminate traffic at the points where they are erected. In determining whether the ordinance violates § 229.030, however, we are not confined to a literal, mechanistic interpretation of the statute without regard to other pertinent statutory and charter provisions. Our duty is to ascertain the legislative intent from a consideration of all applicable statutes relating to the subject. The City of St.

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Cite This Page — Counsel Stack

Bluebook (online)
551 S.W.2d 848, 1977 Mo. App. LEXIS 2155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-schmitz-v-city-of-st-louis-moctapp-1977.