178 S.W. 243 (Mo.App. 1915), Shelton v. Lentz

Citation:178 S.W. 243, 191 Mo.App. 699
Opinion Judge:[191 Mo.App. 702] ALLEN, J.
Party Name:W. F. SHELTON, JR., Appellant, v. MARGARET L. LENTZ et al., Respondents
Attorney:Jones & Jones for appellant.
Judge Panel:ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.
Case Date:July 02, 1915
Court:Court of Appeals of Missouri
 
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Page 243

178 S.W. 243 (Mo.App. 1915)

191 Mo.App. 699

W. F. SHELTON, JR., Appellant,

v.

MARGARET L. LENTZ et al., Respondents

Court of Appeals of Missouri, St. Louis

July 2, 1915

Appeal from Dunklin Circuit Court.--Hon. W. S. C. Walker, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Jones & Jones for appellant.

The court erred in dissolving the temporary writ of injunction and overruling plaintiff's motion for new trial: (1) Because the Board of Aldermen of the city of Kennett had the express power to pass an ordinance establishing fire limits and regulating the kind and character of buildings to be erected within such limits in conformity with law. R. S. 1899, sec. 5958, Laws 1895, page 65; R. S. 1909, sec. 9372. (2) Because the ordinance as passed by the Board of Aldermen was in conformity with the law and charter of the city of Kennett and was a reasonable exercise of its power, and was in pursuance of express legislative authority. (a) Ordinances passed under express legislative authority are not unreasonable and where the reasonableness of a municipal ordinance is in issue all reasonable doubts are resolved in favor of the municipality. A large and liberal discretion is allowed muncipal authorities. State ex rel. v. Clifford, 228 Mo. 194; Morse v. Westport, 110 Mo. 508; St. Louis v. Weber, 44 Mo. 550; Stafford v. Railroad, 110 Wis. 331; St. Louis v. Kellman, 235 Mo. 693; Waterworks Co. v. Webb City, 78 Mo.App. 422; Chimine v. Baker, 75 S.W. 330; 28 Cyc. 389; Doniphan v. White, 110 Mo.App. 507; Tarkio v. White, 120 Mo. 9; St. Charles v. Elsner, 155 Mo. 681; Skinker v. Heman, 148 Mo. 355; Centralia v. Smith, 103 Mo.App. 438; Eichenlaub v. St. Joseph, 113 Mo. 405. (b) Private encroachments upon public rights are not to be favored by construction. Elec. Light Co. v. Alpena, 130 Mich. 413; Traverse City Gas Co. v. Traverse City, 130 Mich. 17; Philadelphia v. Western Union, 11 Phil. (Pa.) 327; Stafford v. Railroad, 110 Wis. 331; Rogers Park Water Co. v. Fergus, 180 U.S. 624; Danville Water Co. v. Danville, 180 U.S. 619; Freeport Water Co. v. Freeport, 180 U.S. 587; 28 Cyc. 388; Kerz v. Water Co., 139 Ill.App. 598. (3) Because the permit granted by the board to Mrs. Lentz is invalid and constituted no defense, being by mere entry upon council record, and wholly unauthorized. Chimine v. Baker, 75 S.W. 330; 28 Cyc. 387; Eichenlaub v. St. Joseph, 113 Mo. 402; Zimmerman v. Railroad, 154 Mo.App. 296; Ristine v. Clements, 31 Ind.App. 338; People v. Latham, 203 Ill. 9; Trenton v. Coyle, 107 Mo. 194; Saxton v. Beach, 50 Mo. 488; Saxon v. St. Joseph, 60 Mo. 158; Thompson v. Boonville, 61 Mo. 283; People v. Mount, 186 Ill. 560; Railroad v. Chicago, 174 Ill. 439; Hearst's Chicago American v. Spiss, 117 Ill.App. 436; Terre Haute v. Lake, 43 Ind. 480; Michael v. Trenton, 163 Ala. 425. (4) Because plaintiff below and appellant here was an adjoining property owner and as such had a special interest in the enforcement of the fire ordinance which will afford him injunctive relief. Zimmerman v. Railroad, 154 Mo.App. 301; Schopp v. St. Louis, 117 Mo. 131; Caskey v. Edwards, 128 Mo.App. 239; Cummings v. St. Louis, 90 Mo. 259; Atterbury v. West, 139 Mo.App. 180; Chimine v. Baker, 75 S.W. 330.

Fort & Zimmerman for respondent.

(1) Respondent's demurrer to the petition should have been sustained, because it states no facts authorizing injunctive relief. A proceeding by injunction is a civil action and the defendant must necessarily be subject to a civil liability, yet a municipal ordinance cannot create a civil liability against a person violating it and in favor of persons injured by its violation, for this is a power which belongs alone to the sovereign power of the State. The only liability which attaches to the infraction of such an ordinance is the penalty it imposes. Moran v. Company, 134 Mo. 650; Loth v. Company, 197 Mo. 357; Carpenter v. Company, 103 Mo.App. 498. (2) Injunction will not lie to restrain, or prevent, the erection of a building within the fire limits of a city, forbidden by municipal ordinance. Warren v. Cavanaugh, 33 Mo.App. 102; Mason v. Deitering, 132 Mo.App. 26; Rice v. Jefferson, 50 Mo.App. 464; Caskey v. Edwards, 128 Mo.App. 241. (3) Respondent concedes that the permit issued to her authorizing her to build the house mentioned in this suit was of no legal validity and is no defense in this suit. R. S. 1909, sec. 9372; Eichenlaub v. City, 113 Mo. 395-403; Dougherty v. City, 110 Mo.App. 626.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

[191 Mo.App. 702] ALLEN, J.

This is a suit in equity to enjoin the erection of a "brick veneer" building within the fire limits of the city of Kennett, Missouri, contrary to the provisions of an ordinance of said city. Defendant Mrs. Lentz is the owner of lot 43 of block 12 of the city of Kennett, and at the time of the institution of this suit was proceeding to erect thereupon a building of the character mentioned, and had partly constructed the same. Plaintiff is the owner of property in this block and of other buildings in the vicinity. The court below...

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