Hays v. City of Poplar Bluff

• Decision Date: 09 February 1915
• Parties: W. B. HAYS v. CITY OF POPLAR BLUFF et al., Appellants
• Court: Missouri Supreme Court

173 S.W. 676

263 Mo. 516

W. B. HAYS v. CITY OF POPLAR BLUFF et al., Appellants

Supreme Court of Missouri

February 9, 1915

Appeal from Wayne Circuit Court. -- Hon. E. M. Dearing, Judge.

Affirmed.

N. C Whaley for appellants; Abington & Phillips and David W. Hill of counsel.

(1) Even though this court may believe and hold that while section 9228 confers authority upon cities of the third class to enact an ordinance prescribing fire limits and absolutely prohibiting the erection of inflammable buildings therein but that said section confers no authority upon such cities to regulate the construction of buildings therein, still the ordinance in question is not invalid and should not be declared void, for the reason that the portion of the ordinance providing for the regulation of buildings in the fire limits by the city council can be eliminated from the ordinance and there will still remain a valid and enforceable ordinance absolutely prohibiting the erection of an undesirable building within the fire limits, viz: the part of section 314 relating to erection reading: "Without obtaining special permission from the mayor and city council." And the attempt of the court in its opinion heretofore filed herein to hold that because a part of the ordinance was invalid that the remainder is invalid notwithstanding that the part remaining might constitute a valid and enforceable ordinance, is contrary to the following decisions, to-wit: State ex rel. v. St. Louis, 241 Mo. 247; Board of Commissioners v. Peter, 253 Mo 530; Simpson v. Iron Works Co., 249 Mo. 396; State ex rel. v. Gordon, 236 Mo. 170; State ex rel. v. St. Louis, 241 Mo. 231; Ex parte Loving, 178 Mo 203; State ex rel. v. Warner, 197 Mo. 656; State ex rel. v. McIntosh, 205 Mo. 602; State ex rel. v. Taylor, 224 Mo. 474; State v. Clark, 54 Mo. 17; State ex rel. v. Field, 119 Mo. 593; Ensworth v. Curd, 68 Mo. 282; State v. Bockstuck, 136 Mo. 335; State ex inf. v Washburn, 167 Mo. 680; State ex rel. v. Wright, 251 Mo. 336; St. Louis v. Klausmeir, 213 Mo. 130; St. Louis v. Wortman, 213 Mo. 131; Rockville v. Merchant, 60 Mo.App. 365; Lamar v. Weidman, 57 Mo.App. 507; Birmingham v. Railroad, 98 Ala. 134; Ex parte Florence, 78 Ala. 419; Ft. Smith v. Scruggs, 70 Ark. 549, 91 Am. St. 100, 58 L.R.A. 921; Rau v. Little Rock, 34 Ark. 303; Ex parte Christensen, 85 Cal. 208; Canova v. Williams, 41 Fla. 509; Augusta v. Clark, 124 Ga. 254; Railroad v. People, 161 Ill. 244; Indianapolis v. Bieler, 138 Ind. 30; McNulty v. Toof, 116 Ky. 202; State v. Robb, 100 Me. 180; Detroit v. Railroad, 95 Mich. 456, 21 L.R.A. 721, 35 Am. St. 578; People v. Armstrong, 73 Mich. 288, 16 Am. St. 578, 2 L.R.A. 721; State v. McFarland, 96 Minn. 482; Wykoff v. Healey, 57 Minn. 14; Duluth v. Krupp, 46 Minn. 435; St. Louis v. Liessing, 190 Mo. 464, 109 Am. St. 774, 1 L.R.A. (N. S.) 718; Brizzolara v. Ft. Smith, 87 Ark. 85; Webster v. Ferguson, 95 Ark. 575; Campbell v. Thomasville, 6 Ga.App. 212; Clark v. Fitzgerald, 7 Ga.App. 437; People v. Mohr, 252 Ill. 160; Exp. Co. v. Chicago, 135 Ill.App. 268; Macomb v. Jones, 158 Ill.App. 271; Rossberg v. State, 111 Md. 394; Gist v. Constr. Co., 224 Mo. 369; Zimmer v. Stuart, 88 Neb. 530; Borough v. Tel. Co., 26 Pa. S.Ct. 346; Greenville v. Pridmore, 86 S.C. 442; Salt Lake City v. Christensen, 34 Utah 38, 17 L.R.A. (N. S.) 898; So. Pac. Co. v. Portland, 227 U.S. 559. (2) The opinion of the commissioner should not be adopted by this court for the further reason that to do so would result in the overruling of the case of St. Louis v. Fischer, 167 Mo. 654, rendered at the October term, 1901, by Court In Banc. This case of St. Louis v. Fischer was carried to the Supreme Court of the United States of America, where it was argued on April 12, 1904, and decided May 16, 1904, by an opinion written by Mr. Justice Brown, in which the decision of the Supreme Court of Missouri was in all things affirmed and the constitutional issues raised by Mr. Commissioner Brown in his opinion in this cause, decided adversely to his ruling. St. Louis v. Fischer has been published in many of the reports of the various States of the United States, and cited as an authority. It is found reported in the 99 Am. St. Rep. 614; it is cited approvingly in St. Louis v. Galt, 179 Mo. 19, also in Myer v. City, 180 Mo. 409; City v. Leasing, 190 Mo. 480; City v. Dairy Company, 190 Mo. 504, and also in Construction Company v. Shovel Company, 211 Mo. 533, 63 L.R.A. 782, 1 L.R.A. (N. S.) 939, 1 L.R.A. (N. S.) 921, and 9 L.R.A. (N. S.) 660, foot note. We believe the court should have great hesitancy in overruling and repudiating a decision rendered by the Court In Banc, cited and published over the United States as the law of Missouri, and a decision that has been appealed to, and in all things affirmed by, the highest tribunal in the United States Government.

N. A. Mozley, Leslie C. Green and Ernest A. Green for respondent.

(1) It takes only a mere glance at section 9228, R. S. 1909, and at the ordinances of Poplar Bluff to see that in the enactment of its ordinances the city has not followed its charter powers. The charter granted to the city the right to pass a prohibitive ordinance with reference to the erection of buildings within the fire limits, but said city has not seen fit to exercise its charter powers in that respect, and instead of passing a prohibitive ordinance passed only a regulative ordinance, which regulations are void. 28 Cyc 736. Numerous cases are cited in Cyc. to support the doctrine announced therein. (2) The appellants next contend that even though the ordinances in question were void, because of the fact that they did not follow the charter powers of the city, but on the contrary were merely ordinances of regulation, that still the ordinances should not be declared void for the reason that the valid part of the ordinances could be separated from the invalid and there would still be left a valid and enforcible ordinance, prohibiting the erection of combustible buildings within the fire limits. This contention made in appellants' brief is fully answered by the decisions. Kirkwood v. Meramec Highlands, 94 Mo.App. 645; State v. Railroad, 162 S.W. 145; County Court v. Griswold, 58 Mo. 199; St. Louis v. Railroad, 89 Mo. 44; State v. Newell, 140 Mo. 282. (3) The greater portion, however, of the appellant's reply brief is devoted to the argument that the opinion of Commissioner Brown should not be adopted by this court, for the reason that to do so would result in the overruling of the case of St. Louis v. Fischer, 167 Mo. 654. That case deals with only one phase of the invalidity of the ordinances in question. The opinion of the learned commissioner declared these ordinances void for three separate and distinct reasons, as herein-before pointed out; and the opinion in the case of City of St. Louis v. Fischer has reference to one of these three phases. In other words, the commissioner declared the ordinances in question void in this case, because of the fact that, first, the ordinance was not in conformity with the charter powers; that is, instead of being a prohibitive ordinance, it was an ordinance of regulation; secondly, the opinion of the commissioner declared the ordinance void because of the fact that it delegated to the property owners in the block the legislative power of determining who should, or should not, construct buildings of combustible materials; and, third, it declared the ordinance void because the ordinance vested in the city council and mayor the arbitrary power of accepting one person's application and rejecting the application of another person, with the same character of petition, and desiring to construct the same character of building. St. Louis v. Fischer has no application to the case at bar, except as affecting the last phase above mentioned on which the ordinance in question was declared void. We submit that the opinion in that case is in conflict with the great weight of authority, and should be overruled. The following cases are in irreconcilable conflict with it: State v. Dubarry, 44 La. Ann. 1117; State v. Tenant, 15 L.R.A. 423; State v. Whitnell, 78 Neb. 33, 126 Am. St. 586; Boyd v. Frankfort, 117 Ky. 199, 111 Am. St. 240; State v. Mahner, 43 La. Ann. 496; Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239; Sioux Falls v. Kirby, 6 S.D. 62, 25 L.R.A. 621; St. Louis v. Russell, 116 Mo. 248; Ex parte Sing Lee, 96 Cal. 354, 31 Am. St. 218, 24 L.R.A. 195; Yick Wo v. Hopkins, 118 U.S. 356. In the closing portion of the opinion of Mr. Justice Brown, in St. Louis v. Fischer, 194 U.S. 372, the court expressly recognizes the fact that legislative power of determining whether or not a building such as the one in controversy can, or cannot, be constructed, cannot under any circumstances be delegated to adjoining lot owners; and the Supreme Court of the United States, to support its decision in that particular, cites with approval the case of St. Louis v. Russell, 116 Mo. 248; which decision the respondent primarily relies upon to support his contention that the ordinance in question in this case is invalid. We insist that the ordinances in question in this case are absolutely void for all three reasons hereinbefore enumerated; and that that fact is fully determined by the case of St. Louis v. Russell, 116 Mo. 248; which case is the controlling authority on almost all fours with the case at bar. The doctrine of the Russell case hereinbefore cited has been approved from the time of the rendition of that opinion until the present. The same case is reported in the 20 L.R.A. 721, and abundantly collaborated with notes from other jurisdictions. The case is cited with approval in 199 Mo. 151, 154 Mo. 498, 145 Mo. 501, 136 Mo. 288, 119 Mo. 47, 147 Mo.App. 514, 132 Mo.App. 33, 130 Mo.App. 93, ...