City of St. Louis v. Dreisoerner

• Decision Date: 31 May 1912
• Parties: CITY OF ST. LOUIS v. HENRY DREISOERNER, Appellant
• Court: Missouri Supreme Court

147 S.W. 998

243 Mo. 217

CITY OF ST. LOUIS v. HENRY DREISOERNER, Appellant

Supreme Court of Missouri, First Division

May 31, 1912

Appeal from St. Louis Court of Criminal Correction. -- Hon. Wilson Taylor, Judge.

Reversed.

Leahy Saunders & Barth for appellant.

(1) This ordinance is in flat conflict with Laws 1871, p. 189 sec. 1. Also see Woerner's Rev. Code of St. Louis 1907 pp. 170-173, which undertakes to regulate the same subject-matter. The proviso in this ordinance is a curiosity. Apparently it gives the municipal assembly the right to establish nuisances by permit, and thereby ruin the property of others without compensation, whereas the ordinance itself destroys, without compensation, property which is not and could never be a nuisance. City ordinances must conform to State laws. Sec. 23, art. 9, Constitution; R. S. 1909, sec. 9582; art. 3, sec. 26, St. Louis Charter; St. Louis v. Meyer, 185 Mo. 583; St. Louis v. Tielkemeyer, 226 Mo. 130; State v. Stobie, 194 Mo. 15; St. Louis v. Williams, 235 Mo. 503; St. Louis v. Wortman, 213 Mo. 131. (2) The ordinance is unconstitutional, because in conflict with secs. 21 and 30, art. 2, Constitution, and the Fourteenth Amendment to the Federal Constitution, in that it undertakes to deprive appellant of his property without any compensation, and without due process of law. St. Louis v. Dorr, 145 Mo. 466. (3) The ordinance is null and void, because it undertakes to declare something to be a nuisance which is not a nuisance at common law, and, under St. Louis v. Packing Co., 141 Mo. 375, St. Louis has no power to declare by ordinance anything to be a nuisance which is not a nuisance at common law. This ordinance undertakes to forbid all manufacturing within a distance of 600 feet of Tower Grove Park. Few forms of manufacturing are a nuisance, but under this ordinance the knitting of socks by three women, in one house, within 600 feet of the park, earning their living thereby, would be illegal. (4) The ordinance is unreasonable, and for that reason null and void. It applies only to Tower Grove Park.

Lambert E. Walther and Byron F. Babbitt for respondent.

(1) This ordinance, even though it be a police regulation, is entitled to a fair and reasonable construction, having in mind all the facts and circumstances surrounding the case. Railroad v. Carlinville, 103 Ill.App. 251; 28 Cyc. 38. (2) The ordinance in controversy is fair and reasonable, and is a proper exercise by the city of St. Louis of its police power, both under art. 9, secs. 20-25, of the State Constitution; and also under art. 3, sec. 26, subdivision 5, and paragraphs 6 to 14. St. Louis v. Frein, 9 Mo.App. 590; State v. Beattie, 16 Mo.App. 131; City v. Russell, 116 Mo. 248; St. Louis v. Jackson, 27 Mo. 37; Ex parte Lacey, 38 L. R. A. 640; Meeker v. Van Rensselaer, 15 Wendl. (N. Y.) 397; McKnight v. Toronto, 3 Ont. Reps. 284; Adv. Co. v. St. Louis, 235 Mo. 99.

BOND, C. Brown, C., concurs.

OPINION

BOND, C.

Defendant is the owner of a two and a half stock brick building on Arsenal street, within six hundred feet of Tower Grove Park, in the city of St. Louis. The building was erected under a permit issued by the building commissioner on October 29, 1907. The testimony tends to show, that subsequent to the ordinance hereinafter referred to it was used by defendant for making altars, chancels and carved wood, such as are used in churches; that the material of which these articles were constructed was prepared at planing mills and delivered at the residence of defendant; that he maintained there three saws, propelled by an electric motor, which were used in adapting the material for the purposes had in view; that he employed on an average of six men to assist in this work, which was conducted and carried on after the adoption of an ordinance enacted by the municipal assembly of the city of St. Louis on the 19th of November, 1907, to-wit:

"Be it ordained by the Municipal Assembly of the City of St. Louis, as follows:

"Section One. Hereafter it shall not be lawful for any person, company of persons, firm or corporation, to operate, conduct or carry on a stone quarry, or brick kiln, or soap factory, or candle factory, or slaughter house or garbage works, or bone factory, or rendering factory, or livery stable, or vitriol factory, or tannery, or sawmill, or planing mill, or furniture factory, or box factory, or boiler works or rolling mill, or lumber yard, or scrap-iron yard, or rag yard and warehouse or manufacturing plant of whatsoever size, wherein machinery of any kind whatsoever shall be maintained or operated by means of steam, electricity, gas or other motive power, in any building, or any lot of ground within six hundred feet of Tower Grove Park, without permission to do so has first been obtained from the Municipal Assembly by a proper ordinance; nor shall any existing house, shed or structure be used, altered, changed, removed or repaired so as to establish, conduct, open, carry on or maintain any such business or occupation within said limits without similar authority. Any person, company of persons, firm or corporation violating the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars for each and every day such stone quarry, brick kiln, soap factory, candle factory, slaughter house, garbage works, bone factory, rendering factory, livery stable, vitriol factory, tannery, sawmill, planing mill, furniture, factory, box factory, boiler works, rolling mill, lumber yard, scrap-iron yard, rag yard and warehouse or manufacturing plant, wherein machinery shall be maintained or operated by means of steam, electricity, gas or other motive power, at or in the premises occupied by them within six hundred feet of Tower Grove Park at the time of the passage of this ordinance."

Defendant was charged with a violation of this ordinance by an information of the city attorney of St. Louis, filed in the police court, in that, on March 26, 1909, he "did then and there unlawfully, and without permission so to do having by him been first obtained from the municipal assembly of the city of St. Louis, by a proper ordinance, operate, conduct and carry on a certain manufacturing plant for the manufacture of altars, chancel rails and other articles of church furniture, wherein is, and at said time or times was contained machinery of divers kinds and character, and which said machinery so contained in said premises as aforesaid was and is maintained or operated by means of steam, electricity, gas or other motive power, contrary to the ordinance in such case made and provided." After a trial upon a plea of not guilty, defendant was discharged. An appeal was taken by the city to the St. Louis Court of Criminal Correction, where the defendant was again tried;...