State v. City of St. Louis

• Decision Date: 27 November 1907
• Citation: 207 Mo. 354,105 S.W. 748
• Parties: STATE ex rel. PARKER-WASHINGTON CO. v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

105 S.W. 748

207 Mo. 354

STATE ex rel. PARKER-WASHINGTON CO. v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. MUNICIPAL CORPORATIONS — NUISANCES — JUSTIFICATION.

A contractor constructing a street improvement cannot justify the commission of a nuisance while preparing the material for the improvement, either by relying on the contract with the city, or the ordinance under which it was made, since the city may not lawfully commit such a nuisance, or authorize another to do so.

2. SAME.

A general ordinance prohibiting the manufacture of any article which is injurious to the public health, or which in the manufacture thereof makes an offensive odor to the extent of creating a nuisance, without first having obtained permission from the municipal assembly by ordinance, does not empower the municipal assembly to authorize by ordinance the carrying on of a business destructive of public health or loading the atmosphere with offensive odors, to the serious annoyance of the surrounding inhabitants.

3. CERTIORARI — PROCEEDINGS OF PUBLIC BOARDS—REVIEW.

Certiorari to quash the record of a city board of health, declaring a manufacturing plant a nuisance, brings up for review only the record proper, and does not bring up the evidence, and the court cannot determine whether the evidence justified the conclusion of the board in adjudging the plant a nuisance.

4. MUNICIPAL CORPORATIONS—ACTS OF BOARDS OF HEALTH—DISQUALIFICATION OF MEMBER OF BOARD.

St. Louis City Charter, art. 12, § 3 [Ann. St. 1906, p. 4882], requires the health commissioner, made a member of the board of health, to enter premises and examine their condition as affecting public health, and to declare and abate nuisances. An ordinance requires the commissioner when he has knowledge, or when a citizen complains to him, that a business is being conducted in a manner injurious to public health, to notify the person conducting the business to appear before the board of health. Held, that the health commissioner must, when a matter injurious to the public health is brought to his notice, declare it a nuisance by force of his own official judgment, and give notice to the offending person to appear before the board of health and show cause why the nuisance should not be abated, and he is not disqualified from sitting as a member of the board at the hearing.

5. CONSTITUTIONAL LAW — DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW.

The board of health of a city, in the exercise of its authority under the charter and ordinances, determined, after a hearing, that an owner maintained a nuisance in operating a plant in the city, and notified him to abate it, under penalty of prosecution. Held, that the owner was not deprived of his property without due process of law, nor deprived of any other constitutional right, since on his prosecution for a violation of the ordinance his constitutional rights could be protected.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Certiorari by the state, on the relation of the Parker-Washington Company, against the city of St. Louis and others, to quash the record of the board of health of the city declaring a plant operated by relator a nuisance. From a judgment quashing the writ, relator appeals. Affirmed.

Barclay & Fauntleroy, for appellant. Charles W. Bates and Charles P. Williams, for respondents.

VALLIANT, P. J.

The relators sued out a writ of certiorari in the circuit court against the defendants, the city of St. Louis, the board of health, and the health commissioner of the city, the aim of which was to quash the record of the board of health declaring a certain plant, which relators were operating in the city, a nuisance, inimical to the public health. Upon the final hearing the court quashed the writ of certiorari, and from that judgment the relators have taken this appeal.

From the record it appears that the relators had contracts with the city for the improvement of certain streets which required the use of a material called "binder," in the composition of which melted asphaltum at a high degree of temperature mixed with other material was used, which process of melting and mixing was being conducted by relators within the city limits, when a written complaint was filed with the health commissioner by 28 resident taxpayers in the vicinity saying that the operation "sends out, fills, and permeates the surrounding atmosphere in and about our homes and the streets fronting the same with a most offensive, obnoxious, and foul smelling odor, which is a constant source of annoyance and makes life in and about the neighborhood in which we live intolerable." And, besides the discomfort, it was charged that the fumes, etc., were injurious to health. Four days after receiving that complaint, the health commissioner caused to be served on the relators a written notice that in his opinion the business, as they were conducting it, was a nuisance and injurious to public health and would be so reported to the board of health on the 23d day of July, 1903, and notified them to appear before the board on that day and show cause why the nuisance "should not be abated, discontinued, or removed." The relators appeared before the board and were represented by counsel. A trial was had, proof pro and con, documentary and oral, was introduced, and the result was that on August 17, 1903, the trial was ended, and the board of health entered on its record an order declaring that: "As operated at present the vapors evolved by the plant are offensive to the residents of the vicinity, impair the reasonable and comfortable enjoyment of their homes, are prejudicial to health, and therefore constitute a nuisance as defined by section 617 of the Municipal Code." And the health commissioner was directed to order the abatement, discontinuance, or removal of said nuisance within such time as he might deem reasonable. Four days thereafter the health commissioner issued a notice in writing to the relators, reciting the order of the board and notifying them to remove, abate, or discontinue the operation of the plant or by making such additions, alterations, and improvements as would prevent the escape of the odors, noxious fumes, gases, and dust, etc., within 20 days from the service of the notice, and that on failure to do so they would be subject to prosecution and fine not less than $20 nor more than $500 according with the charter and ordinances on the city.

The following provisions of the city charter are discussed in the briefs as bearing on the merits of the cause: article 3, § 26, cl. 6, p. 2486, Rev. St. 1899 [Ann. St. 1906, p. 4814], defining the powers of the legislative department of the city government: "* * * And to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health, or the manufacturing or vending of articles obnoxious to the health of the inhabitants; and to declare, prevent and abate nuisances on public or private property and the causes thereof." Clause 14, same section, p. 2488, is: "Finally 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 to enforce the same by fines and penalties not exceeding five hundred dollars, and by forfeitures not exceeding one thousand dollars." Article 12 relates to the health department. Section 1 of that article creates the office of health commissioner and board of health [Ann. St. 1906, p. 4881].

"Sec. 2. The board to consist of the mayor, the president of the council, a commissioner of police, two physicians and the health commissioner. Three members to constitute a quorum.

"Sec. 3. The health commissioner shall have general supervision over the public health of said city, and see that its regulations, and the laws and ordinances of said city in relation thereto, are enforced and observed, and for that purpose he is authorized and empowered to make such rules and regulations, with the approval of the board, not inconsistent with this charter or any city ordinance or law of this state, as will tend to preserve and promote the health of said city; to appoint such employés, with the approval of the board of health, as may be necessary for the execution of his orders; to enter into or authorize and require any employé or police officer to enter into and examine, in the day-time, all buildings, lots and places of every description within the city, and to ascertain and report to him the condition thereof, so far as the public health may be affected by it; to declare and abate nuisances in such manner as may be provided herein, or by ordinance; but all condemnations must first be approved by the board of health, whose action thereon shall be final. He shall obey all orders not inconsistent with this charter and city ordinances, emanating from the board of health, and shall annually report to the mayor the general operations of his department during the year then ended, with such suggestions for the improvement of the same as he shall consider expedient."

Section 6 is in part as follows: "In order to effect the abatement of nuisances or removal of accumulated filth, the health commissioner shall have power whenever in his opinion such nuisance or filth exists, and after officially so declared of record by the board of health to notify the owner or owners thereof, or his or their agents to abate or remove the same. * * * If the owner shall fail within the time * * * to comply with such order, or shall fail to show good cause to said health commissioner why he cannot or ought not to comply with such order, for which purpose he shall be entitled to be heard before said health commissioner and board of health, if he so request it, he shall be deemed guilty of a...