Eichenlaub v. City of St. Joseph

• Citation: 21 S.W. 8,113 Mo. 395
• Parties: Eichenlaub, Appellant, v. The City of St. Joseph et al
• Decision Date: 23 January 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 8

113 Mo. 395

Eichenlaub, Appellant, v. The City of St. Joseph et al

Supreme Court of Missouri, First Division

January 23, 1893

Appeal from Buchanan Circuit Court.--Hon. O. M. Spencer, Judge.

Affirmed.

C. A Mosman and B. R. Vineyard for appellant.

(1) The city charter clothed it with power "to regulate restrain or prohibit" the erection of wooden buildings. The power to regulate authorized the city to license. Kinsley v. Chicago, 124 Ill. 356; St. Johnsbury v. Thompson, 59 Vt. 300; Welch v. Hotchkiss, 39 Conn. 104. (2) The power of the city to regulate being conceded, it is no defense for it to show a want of compliance on its part with the formalities required by the charter authorizing it to act. Deming v. Houlton, 64 Me. 254; Grandchute v. Winegar, 15. Wall. 355; East Lincoln v. Davenport, 94 U.S. 101; Stiens v. County, 48 Mo. 186; Hidecooper v. County, 3 Dillon, 175. (3) Defendant Hartwig had no authority either as an individual citizen or as mayor to decide that the license issued to plaintiff was a nullity. Presumptively it was valid and binding on him until set aside by the court. Knight v. City, 70 Mo. 237. (4) Having granted Eichenlaub permission to erect his house, and, he having on the faith of that permission, entered into a contract, the city cannot be heard to contend that the license was void because it did not assume a particular form. Amy v. Alleghany, 24 How. 373; Rodgers v. Burlington, 3 Wall. 667: Zabriskie v. Railroad, 23 How. 400; Union Depot v. St. Louis, 76 Mo. 393; County v. American Co., 93 U.S. 129. (5) The police power does not authorize the arbitrary destruction of wooden buildings in fire limits without a hearing in court. Any law authorizing such destruction seeks to legalize the taking of private property without due process of law, and is unconstitutional. Lowry v. Rainwater, 70 Mo. 152; Rendering Co. v. Behr, 77 Mo. 91. (6) The defendant city is liable for wrong done by its authority, within the general scope of its powers. Dooley v. City of Kansas, 82 Mo. 444; Hunt v. City of Boonville, 65 Mo. 620. (7) All participating in, or encouraging, or assenting to, the wrong are liable. Murphy v. Wilson, 44 Mo. 313; Allred v. Bray, 41 Mo. 484; McManus v. Lee, 43 Mo. 206. (8) And the principal is responsible together with the agent for a misfeasance done by the agent within the line of his agency. Martin v. Benoist, 20 Mo.App. 262; Harriman v. Stowe, 57 Mo. 93; Buis v. Cook, 60 Mo. 391; Perrine v. Clafiin, 11 Mo. 13; Dowell v. Taylor, 2 Mo.App. 329.

Huston & Parrish for respondents.

(1) The record offered in evidence was properly refused. First. Because the right of the city to remove the building was admitted, and not in issue, and the paper offered did not tend to prove the manner in which said building was removed. Second. Because the paper offered was the unauthorized act of the council and was not an ordinance. Revised Statutes, 1889, sub-div. 10, sec. 1255, p. 363; and sec. 1245, p. 362. (2) The common council, having passed an ordinance fixing fire limits and prescribed a penalty for its violation by the erection of buildings therein contrary to its provisions, could do no more than amend or appeal it by ordinance duly passed. The council could not authorize, by resolution or otherwise, the plaintiff to violate the ordinance. That which the law requires shall be done by ordinance by the mayor and common council, cannot be delegated to another authority. Shean v. Gleason, 46 Mo. 100; Cape Girardeau v. Fugue, 30 Mo.App. 551. (3) If the paper offered had been an ordinance duly passed by the council and approved by the mayor, it would have been invalid. First. They could not have authorized the plaintiff to violate the laws and ordinances of the city, by ordinance. Second. Because the ordinance would have been class legislation of the most vicious character. It would have authorized the appellant to do that which no other person could have done, and would have subjected the people of the city to the dangers intended to be prevented by the passage of the ordinance fixing the fire limits. Hannibal v. Telephone Co., 31 Mo.App. 23; Cooley's Constitutional Limitations, 393; Bank v. Cooper, 2 Yerg. 599; Jones v. Perry, 10 Yerg. 59.

J. W. Boyd, M. A. Reed and James Limbird also for respondents.

(1) The court erred in overruling the objection to introduction of evidence as to Westheimer and McNutt, and refusing to give instruction directing the jury under pleadings and evidence to find for them, as action was clearly barred by statute of limitations. See Revised Statutes, 1889, sec. 6776, p. 1591. (2) The verdict, being for the right party and supported by the pleadings and evidence, will not be disturbed by this court. 98 Mo. 242; 96 Mo. 285; 94 Mo. 574.

OPINION

Black, P. J.

This is a suit to recover damages for tearing down a partly constructed frame house belonging to the plaintiff, which was situated within the fire limits of the defendant city, as those limits had been defined by ordinance before any part of the building had been constructed. The defendants, other than the city, are Hartwig, Westheimer and McNutt, who were respectively the mayor, acting mayor and chief of the fire department.

The defendants justify under the charter and ordinances. The second section of the act of February 8, 1865, amending the character of the city of St. Joseph (Acts 1865, p. 434) provides: "The mayor and city council shall have power, by ordinance, to levy and collect the following taxes, viz.: First. To license, tax and regulate" numerous occupations and objects, all of which are named. "Tenth. * * * to regulate restrain or prohibit the erection of wooden buildings within such limits as may be prescribed by ordinance, and to provide for the removal of the same at the expense of the owners thereof when erected and suffered to remain contrary to the ordinances of the city."

The defendants set up and put in evidence two ordinances defining the fire limits, and a third which provides:

"Sec. 2. No building shall be erected within the fire limits * * * unless the same shall be constructed in conformity with the following provision: All outside and party walls shall be made of stone, brick or other fire proof materials; said walls shall not be less than eight inches in thickness."

"Sec. 6. Whenever any wooden building shall be erected, enlarged or removed, or in process of erection, enlargement or removal, contrary to the provisions of this chapter, upon information it shall be the duty of the mayor to issue an order to the owner, occupant, person in charge or builder thereof, to have such building taken down or removed to some place outside the fire limits, forthwith; and upon refusal or neglect of such person to comply with the requirements of such order within forty-eight hours after having received the same, the mayor shall cause said building to be removed and the expense thereof may be recovered of the owner of such building by suit."

The other evidence discloses the following facts: A sewer ran across the plaintiff's lot upon which he first put up the walls of a brick house. These walls fell during a heavy rainfall; and, at a meeting of the city council held on the seventeenth of September, 1884, the defendants Hartwig and Westheimer being present, he presented a petition asking permission to erect a frame building; and "on motion the petition was received and referred to the board of fire engineers and the two members of the council from the third ward, with power to give the permission asked for." This board or committee and the two aldermen signed and gave to the plaintiff written permission to build a frame house, the roof to be covered with tin and the sides and ends with sheet iron. Defendant Westheimer was one of the persons who signed this permit. Armed with this permit the plaintiff made a contract for the construction of the house and proceeded with the work.

Mayor Hartwig signed and caused to be served on the plaintiff and his contractor a written notice, dated the second of October, 1884, stating that the building was within the fire limits, that it did not conform to the ordinance, and directing them to stop work on the building and "to tear down all parts of said building already erected," within forty-eight hours. Plaintiff testified that the notice was served on him, that he could not give the date of the service, but he thought it was at least two days before the house was taken down. On the twenty-first of October, 1884, the defendant Westheimer as acting mayor, signed and addressed to defendant McNutt, as chief of the fire department, this letter or order: "It is the wish of the mayor, his honor, H. R. W. Hartwig, that you notify Mr. Frank Richenlaub to remove the wooden structure partly erected on lot 8, Logan's Addition, within the time allowed by ordinance;" which being shown to the city counselor, he indorsed thereon and signed the following instruction: "You must obey the mayor's instructions and enforce the ordinances." McNutt testified that he employed carpenters and tore the house down; he says: "I acted in accordance with the papers you have in your hand," referring to the notice and order as we understand. There is evidence tending to show that the carpenters were careless and destroyed much lumber in removing the building; and on the other hand there is evidence that the work was done with due care. At this time the studding was up for two stories, and the north side was boarded and covered with sheet iron. The floors had not been laid, and the house was not yet under roof.

The court directed a verdict for the defendants Hartwig and Westheimer and as to the other defendants submitted to the jury the question whether McNutt used such care as to cause no...