Clutter v. Blankenship

• Decision Date: 31 October 1940
• Docket Number: 36679
• Parties: S. T. Clutter et al. v. L. H. Blankenship et al., Appellants
• Court: Missouri Supreme Court

144 S.W.2d 119

346 Mo. 961

S. T. Clutter et al. v. L. H. Blankenship et al., Appellants

No. 36679

Supreme Court of Missouri

October 31, 1940

Appeal from Christian Circuit Court; Hon. Robert L. Gideon Judge.

Affirmed.

Tom Moore, P. H. Graves and James E. Sater for appellants.

This court is vested with jurisdiction by reason of the fact that the defendants are deprived of their rights to the proper and beneficial use of their property in a legitimate business without due process of law as is guaranteed to them under Section 30, Article II of the Constitution of the State which constitutional violation is duly alleged in the answer filed in said cause and said constitutional question has been kept alive in said cause. Under the evidence the petition of the plaintiffs should have been dismissed and judgment rendered for the defendants. The principle announced in the case of Lester Real Estate Company v. St. Louis, 169 Mo. 227, is clearly applicable to the instant case. Normandy Consolidated School District v. Harral, 286 S.W. 86; Holke v. Herman, 87 App. 134; Aufderheide v. Polar Wave Ice & Fuel Co., 4 S.W.2d 777.

Gardner & Gardner for respondents.

(1) This court is without jurisdiction of this cause. Daniel & Henry Co. v. Bierman & Sons Metal & Rubber Co., 116 S.W.2d 26; Crescent Planing Mill Co. v. Mueller, 117 S.W.2d 247. (2) A funeral home may be a nuisance because of the manner in which it is operated or by reason of its location in a residential district. Tureman v Ketterlin, 304 Mo. 221, 263 S.W. 202; Streett v. Marshall, 316 Mo. 698, 291 S.W. 494; Rhodes v. Moll Grocer Co., 231 App. 751, 95 S.W.2d 842. (3) The courts will take judicial notice that the introduction of a funeral home into a residential neighborhood will inevitably depreciate the value of property as well as discommode the owner. Osborn v. Shreveport, 79 So. 542, 3 A. L. R. 955. (4) Neither the presence of the Callaway Funeral Home nor the Baptist Church constitutes any defense to this action and amounts to no justification for defendants' locating their funeral home in this residential district. 47 C. J. 670, 671.

OPINION

Hays, P. J.

Plaintiffs, owners of residential property situated near the intersection of Third and Dunn Streets in Monett, Missouri, seek to perpetually enjoin the operation by defendants of a funeral home in a building located at said intersection. From a decree granting such permanent injunction defendants appealed.

Respondents at the outset question our jurisdiction. Appellants, in their answer below, set up as a defense that the granting of an injunction would deprive them of their property in violation of the due process clause of the Constitution. [Sec. 30, Art. II, Constitution of Missouri.] This defense they kept alive throughout the trial, in the motion for new trial and in their brief filed here. We think that a substantial constitutional issue has been raised in good faith; hence we have jurisdiction.

The evidence in this case is to the effect that the plaintiffs all reside within a block of the intersection mentioned. Shortly before this suit was begun defendants bought a brick residence at the northwest corner of Third and Dunn Streets. They purchased it with the avowed purpose of converting it into a funeral home and carrying on therein their business as undertakers. Defendant L. H. Blankenship is a licensed embalmer and the other defendant is his wife and is associated with him in business. Soon after acquiring the property in question the defendants placed on the corner of the house a large illuminated clock advertising the "Blankenship Funeral Home." Both defendants admitted that they planned to use the property in question in the undertaking business. A portion of the house was to be made into a workroom in which they would embalm the remains of deceased persons. In another portion of the house they intended to establish a chapel in which dead bodies they had embalmed would remain pending the date of the funeral, and in which funerals would at times be held.

Shortly after the filing of the suit the circuit judge issued a temporary restraining order; and, because of this, the defendants did not actually operate their establishment before the trial, although they did remove to the house the body of an aunt of Mrs. Blankenship and there prepared the same for burial. During this period they also stored some caskets in the basement and occasionally stopped their funeral car in front of the house to load it with flowers.

The weight of evidence supports the contention of the plaintiffs that the neighborhood here involved is a residential one. It is located three blocks from the principal business district of the city and from the nearest store. Two blocks from the Blankenship house there is another funeral home which has been conducted in that locality for many years. It is operated by one Callaway. Across the street from the Callaway establishment there is a gasoline filling station. These are the nearest business establishments. It is true that one or two of the property owners in the immediate neighborhood rent rooms or apartments in their homes for residential purposes, and one neighbor seems to have a small private boarding house in which she serves meals to a few persons. There is evidence that several churches are located in the neighborhood, but this has no tendency to destroy its residential character. If the facts above outlined are compared to those which were before us in Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202, 43 A. L. R. 1155, it will be seen that the neighborhood must be classified as "residential."

As stated above, appellants contend that a perpetual injunction restraining the use of their residence as a funeral home deprives them of property without due process of law. It is true that one of the essential elements of property ownership is the owner's privilege to use his property as he sees fit; but this privilege is not a universal and unlimited one. It is limited by the doctrine expressed in the maxim sic utere tuo ut alienum non laedas. The law from the earliest times has recognized that there are certain uses to which property may be put which so seriously interfere with the use and enjoyment by others of their property or with the rights of the public that they must be forbidden. When such a use of property is enjoined by equity, the property owner is not deprived of his property at all since the privilege of using it to commit a nuisance was never his. One might as well say that the law of murder, in forbidding the use of a weapon to feloniously kill another, deprives the owner of his property therein.

Furthermore it is not every deprivation by the state of "life, liberty or property" which the Constitution forbids, but only such deprivation as is without due process of law. An action by a state through its Legislature, its executive or its judiciary in the proper exercise of the police power, even though it may interfere with the liberty or property of an individual, constitutes due process. True, such interference must not be arbitrary, unreasonable or a despotic spoliation of vested rights, and it must reasonably tend to protect and promote the public morals, peace, health, safety and general welfare; but if an exercise of police power meets these tests, it will not be held to violate the requirements of the due process clause even though it does interfere with the property rights of a citizen. [Chicago, Burlington & Quincy Railway Co. v. Illinois, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596; Bacon v. Walker, 204 U.S. 311, 27 S.Ct. 289, 51 L.Ed. 499; New Orleans Gas-Light Co. v. Louisiana, etc., Co., 115 U.S. 650, 6 S.Ct. 252, 29 L.Ed. 516; Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394.] The police power extends to the definition by the Legislature of acts constituting a nuisance; and the General Assembly, if it act reasonably, may declare that to be a nuisance which was not such at common law. [Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649.] If the Legislature be vested with the power to declare that certain uses of property are a nuisance, then certainly the courts have a similar power to enjoin acts which from their very nature would come within the classification of common law nuisances. The question therefore of whether...