
    The City of St. Louis, a Municipal Corporation, Respondent, v. Ida Friedman, Appellant.
    No. 40717.
    216 S. W. (2d) 475.
    Division One,
    December 13, 1948.
    Rehearing Denied, January 7, 1949.
    
      J. C. Hopewell for appellant.
    
      
      George L. 8temmler, City Counselor, Albert Miller and Francis M. Barnes III, Associate City Counselors, for respondent.. ;,
   [476]

CLARK, J.

Defendant .appeals fronda decree, of-.thecir-cuit court, enjoining Rer from psing-,her real, estate in a. certain manner .in-violation of-the city’s zoning-ordinance. . ,

Respondent questions our jurisdiction, ■ which appellant ■ attempts to invoke on two grounds-.- (1) this is, a..eiyil suit in which: .one of-the parties, City of S.t- Louis, is a political subdivision,of the State; (2) the decree, and,the application, of thei zoning ordinance to, the use.,of , appellant’s property violates appellant’s constitutional..rights .by, taking her, property without,just compensation and,without due,process ! of law as giiaranteed by both the FederaLanR;State constitutions.

St, Louis operates both as a. city,.and,. as-a counfy, but no . county rights or functions arp involved in:.this case, As a city it is not a political.subdivision so as,,to give us jurisdiction.o.f this appeal under Article -V, Section 3, ..of the .State constitution. ,.., [Superior Press Brick Co. v. City of St, Louis, (Mo.) 152 S. W. (2d) 178; Lovins v. City of St. Louis, 336 Mo. 1194., 84 S. W. (2d) 127.]

The petition filed by the city ,as- plaintiff, is long,-but so far as we are concerned here it alleges: that defendant,'.operating.-, under .the name of Continental Auto 'Salvage ¡Company.,, is using .her. property, for storage of scrap iron and,, junk j ,that her property. is ..situate. in -a portion of'the city zoned as an industrial .district, where, the ordinance provides thé .propérty may .be used ,-for -.any -purpose except, -. among 'others, “storage of scrap paper, iron, bottles, rags or,.junk.’.’ -, .

[477] Appellant’s answer denied,,that-she. was using her property for storage of scrap iron or junk and, aniong other defenses, stated:
'“Further answering, this, defendant,states,that the,said, ordinance, known as the Boning .Ordinance of the City of;St- Louis, Missouri,.so far as it involves the use. of this defendant’s property mentioned in plaintiff’s petition) is- rinl awful,..unconstitutional, and invalid in'that-it is unreasonable and oppressive that it imposes restrictions upon the use of private property that have no1 relation? to -the health, safety, comfort oi' welfare of-thc inhabitants of the citythat it is an unlawful deprivation of the use of defendant’s property'without compensation or. due process of -law, a'denial- of the enjoyment of the gains of her own industry, and that the enactment of the ordinance is- not within the-'powers’delegated to-the city.” .

'•In -her motion for new trial', renewed in substantially the same- language in her brief, appellant-stated':' ■ " '■ 1 ' ■' ■ *'■

That the judgment and decree of the Court herein is wrong and ■ erroneous'because-it-:is'based Upon an--ordinance- pleaded in Plaintiff’s petition, valid in=its general'-scope-and application, bnt as ap- - plied: to the-use of this particular piece of property is unconstitutional in that-under the evidence'and-the law said1 judgment and decree cori-f stitutes á taking-of'-Defendant’s property without compensation Un-dep’thei guise of--an -exercise of-the police'power and is in'violation of the Fourteenth--Amendment-of'the"Federal Constitution.” ! '■ "

In many cases we have said that, in'order to 'give this' court -juris'-: diction-of .-an, appeal on the ground, that’a Constitutional question is involved; the question-must be raised'at "'the "first'opportunity and the particular provision''of .the constitution alleged to 'have'been' violated' must-be -pointed out. ' [Hunts, Missouri'Pleading and Practice,' Vól. ‘2, page1237; and cases-cited.] - "Appellant did raise'the question at the1 first opportunity, in her answer; and, while-she'did not point out by section'-and'article -a particular constitutional'• provision, ’ she stated thefmatter: with; sufficient ‘'Clearness to' apprise the trial court arid this court of the provisions-she'Was attempting to "invoke. 'That is substantial compliance with our'requirement-in this -respect!

Appellant-concedes that-the zoning- Ordinance is constitutional in its. general aspect. -She-does not eom-plain of -the classification of the district i® .which her property is sitúate áS ^industrial]”'hut she claims that one, clause of- the-'or dinance'is unconstitutional'as applied to the use of-henpropertyvi This raisesm point as to whether á constitutional question -is properly’before :us in view' of'' our-many previous decisions, such Sas State ex rel Volker v. Kirby, 345 Mo. 801, 1. c. 806, 136 S. W. (2d) 319,' where we-state "the rule as follows: “To raise' that .question. the- contention must be that the law is unconstitutional whatever it.means :and under any construction- of which it js susceptible.” ...Whether or not the! caSes approving that formula state‘it too broadly, we do not believe they rule the instant case. Certainly appellant was withinrher< fights--in attacking one clau.se of ofie section of. tbe,ordinance although cbhceding'that'. the-'-ordihance generally is valid*....Constitutional .-'questions frequently ■ come before‘us in that manner, especially-in uonstruiqg-zoning ordinances. [Glencoe Lime & Cement Co. v. St. Louis, 341 Mo. 689, 108 S. W. (2d) 143.] It wap not-inconsistent fór appellant to-deny-that she had violated the., ordinampe aud^alsoAs'sert that the drdináneé’is invalid/ 'Section'42 of our. Code of- Civil Procedure says, “A party may also state as many. separate claims or defenses as he has whether based -on legal or on equitable grounds or on both.” .

. In State ex rel. Volker v. Kirby, supra, the separate concurring, opinion argues that the majority opinion in that case and similar-opinions in other cases are wrong in stating that a constitutional question may never be raised conditionally or contingently. We need not decide that question here, for we think appellant has raised the ques- - tion unconditionally. * '

As we 'understand appellant’s position, considering together :her - answer, motion for new trial and brief, it is this: she,denies that she violated the ordinance by [478] storing scrap iron and junk and then - states that the particular clause of the ordinance invoked against her is.unconstitutional in so far as it prohibits the storage of scrap iron and junk in the district zoned as “industrial.” That, amounts to say- ■ ing that the clause of the ordinance upon which the suit is baséd is unconstitutional however interpreted.

In Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, the. Supreme Court of the United States settled the question of the legality of zoning ordinances. Since that decision/, the Supreme Court of Missouri has often upheld the power of cities to enact such ordinances and define the uses to which property maybe put in specified districts.

. In this state all incorporated cities are expressly vested by statute-with authority to enact and enforce such ordinances. - [Sections 7412- - 7423, inclusive, Revised Statutes of Missouri 1939; Mo. R. S.-A.} The purposes of the law are set forth in Section 7412, “promoting health, •- safety, morals, or the general welfare of the community ;'”- and more specifically in Section 7414, “to lessen congestion in the streets;-to secure safety from fire, panic and other dangers; to:promote health- and the general welfare; to provide adequate light and air-; to prevent the overcrowding of land; to avoid undue crowding of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things," to' the character of the district and its peculiar suitability for. particular uses, and with a view to conserving the, values of buildings and encouraging the most appropriate use of land throughout such municipality..”;

The purposes stated cover a wide range. Of course, the classifica-' < tion must not be arbitrary or unreasonable and must have some ref erence to the objects stated in the law. Esthetic values‘alone are-not a sufficient basis for classification, but are- entitled to some weight' where other reasons for the exercise of the power are present." [37 Am. Jur., p. 930, sec. 289; Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303; State ex rel. v. Christopher, 317 Mo. 1179, 298 S. W. 720; Landau v. Levin, No. 40449, filed July 12, 1948, 358 Mo. 77, 213 S. W. (2d) 483, ánd'-fisés cited.J In the-last-case cited we said “the/ city’s’legislative body has the duty to' determine . the use classification to be given any particular area; - Unless it should '- appear that the conclusion of'the'city is legislative body in the respect in 'issue’ here is clearly-arbitrary and''unreasonable, we cannot-’substitute our opinion for that- of the ‘eitys Roar'd of Aldermen in zoning the'property in -question ■: If" thecity’s action ... 'is reasonably doubtful or even fairly-debatable we- cannot do so.”

Wé cannot say that the'-provision of the ordinance which prohibits the storage of' scrap -iron- and' júnlt m certain/' defined-districts is en- ■ tirely’-unconnected with-the broad-'-purposes "of the statute above' quoted. [Euclid v. Ambler Realty Co., supra:]' ^We hold that the ordinance "does not violate thé-Federal-or Sfiate constitution.' ■

- On the-merits the contest’resolves itself into- a question of what constitutes the storage pf “-scrap5 iron” and-<ii junk'.” The ordinance does not define-those terms, but'does define “junk'merchant” as “Any person, firm or corporation engaged in the bdsiness of buying, selling, exchanging or-dealing-in old'junk/metals, bottles/syphons,- old rope, old iron, brass, copper;- tin or lead, second-’hand plumbing materials, second-hand-gas and-electric fixtures,-old- rubber tires or other used ' or old articles- commonly designated a's junk,’ and having a store, stand or place of business

The evidence shows that appellant owns two’parcels of real estate' in the same city block, one-with' a frontage of about 200 feet on Cass ‘ Avenue and the-other with- afrontage'of 25 feet On 'Sheridan Avenue. ' The land is-partly covered by buildings and sheds. On this.property' appellant’s’son conducts--an'“autcr-parts or auto salvage business”’ and has done so for'about fourteen years. Old or wrecked cárs are brought there; a.few-of-them are"feconditiohed’and sold as cars, but generally all usable parts are-removed and Stored both inside and outside- -the [479] buildings for sále fo 'the public. ' After all usablé' parts are. removed the-accumulated remnants aré "hauled away and sold, tp junk dealers.' Np scrap-1 paper, iron Or rags were handled. Appellant put in evidence a: number of pictures.' They show á large number of automobiles in'various states" of disrepair, tires, fenders and other parts, in an-Open lot adjacent t6'-a street. One of these pictures shows such things piled high against, or nearly against, the back porch of a building upon the wall of which is a sign “Foster’s Confectionery.” ■ Appellant offered three witnesses who testified that they were conducting “auto parts business” similar to that of appellant’s son and that same did not.constitute “junk” business. Appellant proved that a number of regular junk dealers operate in the vicinity of her property.

The trial court found that the evidence shows that the use of appellant’s property constitutes a violation of the ordinance and enjoined her from storing “scrap iron and junk and other waste metals and as a place to store wrecked automobiles, scrapped automobiles, junked automobiles and junked trucks, which are of no further use as automobiles or trucks” etc.

We think the evidence fully justifies the court’s finding.

In Weinstein v. City of Raleigh, 219 N. C. 643, 14 S. E. (2d) 661, the.trial court found that the plaintiff there was regularly engaged in,the business of buying old automobiles, old tires, old car frames and cars in. a .unit, and selling individual items from old cars to garages-and mechanics, and then held as a matter of law “that plaintiff is engaged in the business of buying and selling and dealing in what is commonly known as junk.” The Supreme Court of North Carolina affirmed-the decree.

Without. confining ourselves to a specific definition of the term “junk/!.applicable to all cases, we feel sure that the remnants of old cai’,s remaining’ after the removal of all usable parts come within that term and that such remnants were kept on appellant’s premises a sufficient, length of time to amount to “storage.”

Appellant says tfiat the proof shows that many other automobile .salvage concerns and many regular junk dealers are operating in the same vicinity, and that it is unjust discrimination to enforce the. ordinance against her alone. That goes to the manner of the enforcement of the ordinance, not to its validity. The fact that others may be violating the ordinance .is no defense for appellant. Nor is it any defense that she. fias been using her property in the same way for.,many years. The first zoning ordinance was enacted before her property had been put to such use, but, even if that were not so, her property would have been and is subject to future zoning legislation. [St. Louis Poster Adv. Co. v. City of St. Louis, 249 U. S. 269.]

We overrule appellant’s contention that injunction is not the proper remedy because the ordinance provides for enforcement by fine. Tbe proceeding is not a prosecution for crime. It is more in the nature of a civil, action for the abatement of a continuing nuisance and is .withip the jurisdiction of a court of equity. [State ex rel. Burns v. Shain, 297 Mo. 369, 248 S. W. 591; Glencoe Lime & Cement Co. v. St Louis, 341 Mo. 689, 108 S. W. (2d) 143.]

The decree of the trial court is affirmed.

All concur.  