It is within the power of a municipality when authorized by the
law of the state, to make a general police regulation subject to
exceptions, and to delegate the discretion of granting the
exceptions to a municipal board or officer and the fact that some
may be favored and some not, does not, if the ordinance is
otherwise constitutional, deny those who are not favored the equal
protection of the law.
The ordinance of the City of St. Louis prohibiting the erection
of any dairy or cow stable within the city limits without
permission from the municipal assembly and providing for permission
to be given by such assembly, is
Page 194 U. S. 362
a police regulation, and is not unconstitutional as depriving
one violating the ordinance of his property without due process of
law or denying him the equal protection of the laws.
Whether such an ordinance is violated is not a federal question,
and this Court is bound by the decision of the state court in that
respect.
This proceeding was originally instituted by a criminal
complaint filed by the City of St. Louis against Fischer in the
police court for a violation of an ordinance of the city in
erecting, building, and establishing on certain premises occupied
by Fischer at Nos. 7208 and 7210 North Broadway, a dairy and cow
stable, without first having obtained permission so to do from the
municipal assembly by proper ordinance, and for maintaining such
dairy and cow stable without permission of such assembly.
Motion was made to quash the complaint upon the ground, amongst
others, that section 5 of the ordinance under which the conviction
was held was in violation of the Fourteenth Amendment of the
Constitution of the United States.
The case was submitted to the court upon the following agreed
statement of the facts:
"The plaintiff, the City of St. Louis, is a municipal
corporation, organized and existing under the laws of the State of
Missouri, and defendant is and was on the sixteenth day of
November, 1898, the occupant of certain premises known as 7208 and
7210 North Broadway, in the City of St. Louis, State of Missouri,
upon which premises at said time, stood a dwelling house and frame
stable, which had been erected and built prior to the occupancy of
said premises by defendant."
"At the time of the approval of ordinance No. 18,407 of said
city and state, said premises, buildings, and stable were occupied
and in use by a certain party other than this defendant for the
purpose of operating a dairy and maintaining a cow stable, and this
defendant was at the same time operating a dairy and maintaining a
cow stable on premises known as No. 6305 Bulwer Avenue, in said
city and state. Sometime in the month of March, 1898, the said
premises at Nos. 7208 and
Page 194 U. S. 363
7210 North Broadway were abandoned as a dairy and cow stable,
and the dwelling house thereon was occupied by a private family for
residence purposes only, and no dairy or cow stable was maintained
on said premises from March, 1898, until sometime in September,
1898. In September, 1898, defendant moved his cows, about thirty in
number, from premises No. 6305 Bulwer Avenue onto premises Nos.
7208 and 7210 North Broadway, placed them in the old stable, and
did proceed to conduct upon said premises a dairy establishment,
and produce from said cows milk, and sell the same to his customers
for profit, and was so doing on the said sixteenth day of November,
1898, without having first obtained permission so to do from the
municipal assembly by proper ordinance, as provided by section 5 of
ordinance No. 18,407 of the City of St. Louis, approved April 6,
1896,"
a copy of which section is given in the margin.
*
Upon this state of facts, defendant was convicted and fined. An
appeal was granted to the St. Louis Court of Criminal Correction,
which affirmed the judgment. An appeal was then taken to the
supreme court of the state, where the judgment was again affirmed.
167 Mo. 654.
Page 194 U. S. 369
MR. JUSTICE BROWN delivered the opinion of the Court.
The authority of the City of St. Louis to adopt the ordinance in
question is found in the Revised Statutes of the state (1899, pp.
2484 and 2488), which declare:
"The mayor and assembly shall have power, within the city, by
ordinance not inconsistent with the Constitution or any law of this
state, or of this charter, . . . to . . . prohibit the erection of
. . . cow stables and dairies . . . within prescribed limits, and
to remove and regulate the same."
"Finally, to pass all such ordinances, not inconsistent with the
provisions of this charter or of 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 to
enforce the same by fines and penalties not exceeding five hundred
dollars, and by forfeitures not exceeding one thousand
dollars."
The authority of the municipality of St. Louis, under this
charter, to adopt the ordinance in question, was settled by the
decision of the supreme court, and is not open to attack here.
Considerable stress is laid upon the fact that, at the time the
ordinance was adopted (April 6, 1896), the dairy and cow stable had
already been erected, and at that time was occupied and in use for
that purpose, though such use was subsequently abandoned, and the
premises used as a private residence for a
Page 194 U. S. 370
short time, when defendant moved his cattle there and
established anew the dairy and cow stable which had theretofore
been used. The supreme court, however, found that defendant was
guilty of maintaining a dairy and cow stable, within the meaning of
the ordinance, without permission of the municipal assembly, and as
this construction of the ordinance involves no federal question, we
are relieved from the necessity of considering it.
Defendant's objection to the ordinance, that it is made to apply
to the whole city, when authority was only given by the charter to
prohibit the erection of cow stables and dairies "within prescribed
limits," is equally without foundation. If it were possible to
prescribe limits for the operation of the ordinance, it was held by
the supreme court to be equally possible to declare that those
limits should be coincident with the limits of the city. This is
also a nonfederal question.
Defendant's main contention, however, is that, by vesting in the
municipal assembly the power to permit the erection of dairy and
cow stables to certain persons, a discrimination is thus declared
in favor of such persons, and against all other persons, and the
equal protection of the laws denied to all the disfavored class.
The power of the legislature to authorize its municipalities to
regulate and suppress all such places or occupations as, in its
judgment, are likely to be injurious to the health of its
inhabitants, or to disturb people living in the immediate
neighborhood by loud noises or offensive odors, is so clearly
within the police power as to be no longer open to question. The
keeping of swine and cattle within the city or designated limits of
the city has been declared in a number of cases to be within the
police power. The keeping of cow stables and dairies is not only
likely to be offensive to neighbors, but it is too often made an
excuse for the supply of impure milk from cows which are fed upon
unhealthful food, such as the refuse from distilleries, etc.
In
re Linehan, 72 Cal. 114;
Quincy v. Kennard, 151 Mass.
563;
Love v. Judge, 128 Mich. 545.
Page 194 U. S. 371
We do not regard the fact that permission to keep cattle may be
granted by the municipal assembly as impairing, in any degree, the
validity of the ordinance or as denying to the disfavored dairy
keepers the equal protection of the laws. Such discrimination might
well be made where one person desired to keep two cows and another
fifty; where one desired to establish a stable in the heart of the
city and another in the suburbs; or, where one was known to keep
his stable in a filthy condition and another had established a
reputation for good order and cleanliness. Such distinctions are
constantly made the basis for licensing one person to sell
intoxicating liquors and denying it to others. The question in each
case is whether the establishing of a dairy and cow stable is
likely, in the hands of the applicant, to be a nuisance or not to
the neighborhood, and to imperil or conduce to the health of its
customers. As the dispensing power must be vested in someone, it is
not easy to see why it may not properly be delegated to the
municipal assembly which enacted the ordinance. Of course, cases
may be imagined where the power to issue permits may be abused, and
the permission accorded to social or political favorites and denied
to others who, for reasons totally disconnected with the merits of
the case, are distasteful to the licensing power. No such
complaint, however, is made to the practical application of the law
in this case, and we are led to infer that none such exists. We
have no criticism to make of the principle of granting a license to
one and denying it to another, and are bound to assume that the
discrimination is made in the interest of the public, and upon
conditions applying to the health and comfort of the neighborhood.
Crowley v. Christensen, 137 U. S. 86;
Davis v. Massachusetts, 167 U. S. 43;
Soon Hing v. Crowley, 113 U. S. 703,
113 U. S.
710.
The only alternative to the allowance of such exceptions would
be to make the application of the ordinance universal. This would
operate with great hardship upon persons who desire to establish
dairies and cow stables in the outskirts of the city, as well as
inconvenience to the inhabitants, who, to
Page 194 U. S. 372
that extent, would be limited in their supply of milk. It would
be exceedingly difficult to make exceptions in the ordinance itself
without doing injustice in individual cases, and we see no
difficulty in vesting in some body of men, presumed to be
acquainted with the business and its conditions, the power to grant
permits in special cases. It has been held in some of the state
courts to be contrary to the spirit of American institutions to
vest this dispensing power in the hands of a single individual,
Chicago v. Trotter, 136 Ill. 430;
In re Frazee,
63 Mich. 396;
State v. Fiske, 9 R.I. 94;
Baltimore v.
Radecke, 49 Md. 217;
Sioux Falls v. Kirby, 6 S.D. 62,
and in others that such authority cannot be delegated to the
adjoining lot owners,
St. Louis v. Russell, 116 Mo. 248;
Ex Parte Sing Lee, 96 Cal. 354. But the authority to
delegate that discretion to a board appointed for that purpose is
sustained by the great weight of authority,
Quincy v.
Kennard, 151 Mass. 563;
Commonwealth v. Davis, 162
Mass. 510, and by this Court the delegation of such power, even to
a single individual, was sustained in
Wilson v. Eureka
City, 173 U. S. 32, and
Gundling v. Chicago, 177 U. S. 183.
Whether the defendant be in a position to avail himself of the
alleged invalidity of the ordinance without averring that he
applied for, and had been refused a permit to establish the dairy
and cow stable in question, as was intimated in the latter case, is
not necessary to a decision here, and we express no opinion upon
the point.
It is sufficient for us to hold, as we do, that the ordinance in
question does not deprive the defendant of his property without due
process of law, nor deny to him the equal protection of the
laws.
The judgment of the Supreme Court of Missouri is therefore
Affirmed.
*
"Sec. 5. No dairy or cow stable shall hereafter be erected,
built, or established within the limits of this city without first
having obtained permission so to do from the municipal assembly by
proper ordinance, and no dairy or cow stable not in operation at
the time of the approval of this ordinance shall be maintained on
any premises unless permission so to do shall have been obtained
from the municipal assembly by proper ordinance. Any person
violating any of the provisions of this section shall be deemed
guilty of a misdemeanor, and, upon conviction, shall be fined not
less than $100 nor more than $500."
