City of St. Louis v. Warren Commission & Investment Co.

• Citation: 126 S.W. 166,226 Mo. 148
• Parties: CITY OF ST. LOUIS v. WARREN COMMISSION AND INVESTMENT COMPANY, Appellant
• Decision Date: 01 March 1910
• Court: United States State Supreme Court of Missouri

126 S.W. 166

226 Mo. 148

CITY OF ST. LOUIS v. WARREN COMMISSION AND INVESTMENT COMPANY, Appellant

Supreme Court of Missouri, First Division

March 1, 1910

Appeal from St. Louis Court of Criminal Correction. -- Hon. Hiram N Moore, Judge.

Affirmed.

Truman P. Young for appellant.

(1) The ordinance numbered 22022, under which this prosecution was brought, applies only to buildings to be erected in the future. This appears from an inspection of the ordinance itself. See also: De Leone v. Long Branch, 55 N. J L. 108; Buffalo v. Chadeayne, 135 N.Y. 163; Regina v. Howard, 4 Ont. 377, 4 Am. and Eng. Corp. Cases, 377; Glenn v. Baltimore, 5 Gill and J. 430; Commonwealth v. Alger, 7 Cush. 103; Allison v Richmond, 51 Mo.App. 136; State v. Tenant, 110 N.C. 618; Louisville v. Webster, 108 Ill. 414; Wadleigh v. Gilman, 12 Me. 403; Klinger v. Bickel, 117 Pa. St. 339. (2) The power to compel a remodeling of existing buildings is not within the charter powers of the city. A municipal corporation can exercise the following powers and no others: First, those expressly granted; second, those necessarily implied in or incident to the powers granted; third, those essential to the declared objects and purposes of the corporation -- not simply convenient but indispensable. St. Louis v. Kaine, 180 Mo. 309; St. Louis v. Telephone Company, 96 Mo. 628; Joplin v. Leckie, 78 Mo.App. 13; City, to use, v. Eddy, 123 Mo. 546; Kansas City v. Swope, 79 Mo. 446; Knapp v. Kansas City, 48 Mo.App. 485; City v. Laughlin, 49 Mo. 559; Butler v. Milwaukee, 15 Wis. 493; Regina v. Howard, 4 Ont. 377; Buffalo v. Chadeayne, 134 N.Y. 166; Newton v. Belger, 143 Mass. 598; Allison v. Richmond, 51 Mo.App. 133; Pye v. Peterson, 45 Tex. 312; Carpenter v. Realty Co., 103 Mo.App. 480; Bostwick v. Sams, 59 L. R. A. 282; Wygant v. McLaughlin, 54 L. R. A. 636; Grossman v. Oakland, 36 L. R. A. 593; Evansville v. Miller, 38 L. R. A. 161. (3) The ordinance if meant to apply to existing buildings is invalid as applied to such buildings because such provisions are not within the scope of the title of the ordinance. Charter, art. 3, sec. 13; State v. St. Louis, 161 Mo. 371. (4) Ordinance 18964 and section 193 of the municipal code were repealed by ordinance 22022 under which this prosecution was brought. They were therefore immaterial and should have been excluded from the evidence. State v. Roller, 77 Mo. 120; Yall v. Gillham, 187 Mo. 393; State v. Hickman, 84 Mo. 79; Kern v. Legion of Honor, 167 Mo. 483; Delaney v. Police Court, 167 Mo. 676; Berkshire v. Railroad, 28 Mo.App. 228; Crumley v. Railroad, 32 Mo.App. 505; Gumm v. Jones, 115 Mo.App. 597.

L. E. Walther and C. P. Williams for respondent.

(1) The authorities cited by appellant under subdivision one of his brief are not in point, and do not bear upon the proposition involved. The true reading of the ordinance is to make it apply to all buildings, whenever erected, that are used for mercantile or manufacturing purposes. (2) The power to enact is to be found in the charter, art. 3, sec. 26, clauses 12 and 14. The enactment is plainly justifiable as a police measure. (3) The title of the ordinance is sufficient.

OPINION

GRAVES, J.

This cause originated in the first district of the police court of the city of St. Louis by a statement filed by the city attorney of said city, in which it was charged that the defendant had violated sections 101, 182 and 184 of ordinance No. 22022, approved April 7, 1905. Upon being convicted the defendant appealed to the St. Louis Court of Criminal Correction, wherein he was again convicted, and fined the sum of $ 25, from which judgment he has appealed to this court.

Defendant is the owner and occupant of a certain building four stories high and used for manufacturing and mercantile purposes. This building was erected prior to 1865. There is no question that the building had not been equipped with the things required by section 101 of ordinance No. 22022, supra. This section is a part of the Building Code of the city of St. Louis and reads:

"Every building more than three stories in height, above the basement, occupied for manufacturing or mercantile purposes, shall have fire doors, blinds or shutters hung to iron hinge eyes or pin blocks built into the wall on every window and every opening above the first story thereof, excepting on openings of buildings fronting on streets or vacant lots which are more than forty feet in width; said doors, shutters or blinds shall be standard; constructed of pine or other soft wood of two thicknesses of matched boards at right angles with each other and securely fastened and covered with tin or galvanized iron on both sides and edges, with folding lapped joints; the nails for fastening the same shall be driven inside the lap. The hinges and bolts or latches shall be secured or fastened to the door or shutter by bolting after the same has been covered, and such door or shutter shall be hung independent of the woodwork of the windows and doors and to be of sufficient area to lap two inches all around such opening. Sliding shutters of the above construction may be used instead of hinged shutters, of such mechanism as may be approved by the commissioner of public buildings. They shall in any case comply with all requirements provided for standard hinged fire shutters. In lieu of standard fire doors and shutters wherever mentioned in this ordinance, approved metal frames of adequate strength, with wire glass panels in same may be used. It shall be the duty of the commissioner of public buildings to require fire doors, blinds or shutters, as provided in this section, to be placed on the openings of buildings in cases where lots which were vacant when the buildings were constructed are built upon, so that said openings come within forty feet from any building."

The case was tried upon an agreed statement of facts, which is not necessary to set out here, for the reason that the defendant is guilty, if the ordinance is valid, and if the ordinance applies to the building in question under the facts. The contention of the defendant is three-fold, and is well stated in the brief thus:

"The evidence showed that the building in question was erected in Saint Louis prior to 1865. Ordinance No. 22022, under which this prosecution was brought, was passed on April 7, 1905. It was contended by the defendant at the trial that this ordinance applied only to buildings erected after its passage. In the first place, that the ordinance on its face applied only to such buildings; in the second place, that the city has no powers under its charter to pass such an ordinance and make it applicable to buildings already constructed, and in the third place, that the title of the ordinance refers only to buildings to be erected in the future, with certain exceptions not applicable here."

Of these questions in their order.

I. The point first urged is that upon its face the ordinance in question does not apply to buildings theretofore erected. Ordinance No. 22022 is composed of one hundred and ninety-seven sections, referring practically to as many different things. It is the Building Code of the city of St Louis. Many sections out of the number contained in the ordinance clearly refer to buildings to be constructed in the future, and many more refer to buildings theretofore constructed. It would be an unwarranted task to set out and describe the different sections of these two classes. The question is what does this section 101 mean? To what buildings does it apply? It refers to a certain subject-matter within itself and speaks for itself irrespective of other sections of the Building Code. But little light can be gathered by comparing its phraseology with that of other sections clearly pointing to buildings to be erected in the future, as learned counsel have elaborately and painstakingly done. Whether this particular section refers to prior constructed buildings must be gathered largely from its own context. We are impressed that it applies to all buildings whether erected prior or subsequent to the passage of such ordinance, if the size of the building and the occupancy of the building brings it within the purview of the ordinance. It will be observed that the section under review does not apply to all four-story buildings, but only to such four-story buildings as are occupied for particular purposes, and as are located within forty feet of another building. Future buildings four stories in height may be built, but if not used for mercantile or manufacturing purposes the ordinance would not apply. Or if they were so used, and yet were forty feet or more away from another building, the ordinance will not apply, until such time as another building was erected so as to be within forty feet of the four-story building thus used for mercantile or manufacturing purposes. This ordinance does not therefore apply so much to the time the building was erected as it does to the occupancy of the building. The present building, now under discussion, may by reason of its occupancy be subject to the provisions of the ordinance this year, but next year the character of its occupancy might be so changed that the ordinance would not apply. The ordinance therefore strikes at the danger of fire by reason of the particular occupancy of such a building, rather than at the date of its erection. To guard against fires and the destruction of property is one of the police powers of a city....