City of St. Louis v. Kaime

• Decision Date: 10 April 1876
• Citation: 2 Mo.App. 66
• Parties: THE CITY OF ST. LOUIS, Respondent, v. DAVID F. KAIME, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 66

THE CITY OF ST. LOUIS, Respondent,

v.DAVID F. KAIME, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 10, 1876.

1. When premises are occupied by a tenant, an agent of the owner cannot be proceeded against under a municipal ordinance for failing to remove a nuisance therefrom.

2. The tenant's possession and control of leased premises are inviolable by the landlord or his agent, except for purposes pertaining to the preservation of the freehold.

3. Power given by charter to the mayor and council of the city of St. Louis “to provide by ordinance for the abatement of nuisances and the preservation of the public health,” will not sustain an ordinance made under color thereof, or authorize an interpretation of such an ordinance to an effect which would be in violation of the laws of the State.

APPEAL from St. Louis Court of Criminal Correction.

Reversed and dismissed.

Fisher & Rowell, for appellant, cited: Taylor's L. & T., secs. 174, 178, 345; Dill. on Mun. Corp. 253, 254, 259; Shaw v. Cummisky, 7 Pick. 76; Gibbons on Dil. and Nuis. 506; Whart. Cr. Law, secs. 2436, 2437; Hill. on Torts, 600; Pickard v. Collins, 23 Bos. 444; People v. Townsend, 3 Hill, 479.

T. J. Cornelius, for respondent, cited: Rev. City Charter, Art. 3, sec. 1; 1 Dill. on Mun. Corp. (2d ed.) 405, sec. 303; State v. Hays, 13 Mo. 246; State v. Canton, 43 Mo. 48.

LEWIS, J., delivered the opinion of the court.

Defendant was charged, in the St. Louis Police Court, with a violation of city ordinance No. 8982, relating to nuisances. He was found guilty and fined $20. An appeal to the Court of Criminal Correction resulted in a fine of $5.

The 1st section of the ordinance in question provides that: “Whoever shall create, commit, permit, or continue a nuisance of any kind, nature, or description in, upon, or about any private or public property within the limits of the city of St. Louis, * * * is hereby declared guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than $5 nor more than $500.” The 2d section authorizes an entry by the police upon any premises for the purpose of examination, and “to direct the owner, agent, or occupant of the premises, by written notice, to forthwith remove, discontinue, or abate” any nuisance there found. It further declares that: “Whoever shall fail, neglect, or refuse to remove, discontinue, or abate a nuisance on premises of which he is the owner, agent, or occupant, within forty-eight hours after the service upon him of the notice mentioned, * * * shall be deemed guilty of a misdemeanor,” etc.

The charge was made against defendant under the 2d section. By an agreed statement of facts it appears that, at the time of the alleged dereliction, defendant was agent for the owner of the premises described in the complaint, for the purpose of collecting the rents; that said premises were then in the occupancy of tenants, and that a nuisance, in the shape of a filthy cellar, was upon them; that the defendant was served with notice, according to the ordinance, but failed to remove the nuisance. Instructions to the general effect...