City of St. Louis v. Galt

• Decision Date: 25 November 1903
• Citation: 77 S.W. 876,179 Mo. 8
• Parties: CITY OF ST. LOUIS v. GALT.
• Court: Missouri Supreme Court

77 S.W. 876

179 Mo. 8

CITY OF ST. LOUIS v. GALT.

Supreme Court of Missouri, Division No. 1.

November 25, 1903.

MUNICIPAL CORPORATIONS—ANTI-WEED ORDINANCE — CONSTITUTIONAL LAW — TAKING OF PRIVATE PROPERTY—DUE PROCESS OF LAW—EVIDENCE.

1. Evidence that there were weeds on defendant's premises from four to five feet high, and about one-third were sunflowers, is sufficient to sustain his conviction for violation of an ordinance forbidding any one to allow a growth of weeds on his premises over one foot high, and providing that the term "weeds" shall include all rank vegetable growth which exhales unpleasant and noxious odors, and also high and rank vegetable growth that may conceal filthy deposits.

2. An ordinance making it a misdemeanor to permit a growth of weeds is not violative of Const. art. 2, § 4, providing that government is intended to promote the general welfare of the people, and that all persons have a natural right to life, liberty, and the enjoyment of the gains of their own industry.

3. To prohibit one from permitting a growth of weeds on his premises is not a taking of his property, within Const. U. S. Amend. art. 5, prohibiting such taking without just compensation.

4. A conviction for violation of an anti-weed ordinance in the ordinary courts, with right of appeal, is due process of law, within Const. U. S. Amend. art. 5, providing that no person shall be deprived of life, liberty, or property without due process of law.

5. Const. art. 9, §§ 20-25, granting to the city of St. Louis the right to adopt a charter subject to the laws and Constitution of the state, and a provision in a charter so adopted giving the power to declare, prevent, and abate

nuisances on private property, give power to pass an ordinance forbidding the owner of premises from permitting a growth of weeds.

Appeal from St. Louis Court of Criminal Correction; Willis H. Clark, Judge.

Action by the city of St. Louis against Smith P. Galt for violation of the weed ordinance. From a judgment of conviction, he appeals. Affirmed.

Smith P. Galt, pro se. Chas. W. Bates and Wm. F. Woerner, for respondent.

MARSHALL, J.

The defendant is the owner of a certain lot in the city of St. Louis. He was proceeded against and fined in the police court for a violation of sections 608 and 612 of the municipal code of that city, which sections are commonly known as the "Weed Ordinance," and are as follows:

"Sec. 608. Any owner, lessee, or occupant, or any agent, servant, representative or employee of any such owner, lessee or occupant having control of any lot of ground, or any part of any lot, who shall allow or maintain on any such lot any growth of weeds to a height of over one foot, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than ten nor more than one hundred dollars, to be recovered for the use of the city of St. Louis, before any court having competent jurisdiction."

"Sec. 612. The words `weeds' as used herein shall be held to include all rank vegetable growth which exhale unpleasant and noxious odors, and also high and rank vegetable growth that may conceal filthy deposits."

He appealed to the court of criminal correction, where he was tried anew, and again found guilty, and from that judgment he appealed to this court.

The abstract of the record shows that upon the latter trial the following proceedings were had: First. The defendant admitted the ownership of the lot, and that he had received a notice from the city health commissioner that a nuisance, in the form of weeds, existed on his lot, and requesting him to abate the same. Second. "The city offered evidence tending to prove that at the time said notice was issued and served there were weeds on the said premises from four to five feet high, and about one-third were sunflowers. The city offered in evidence said sections 608 and 612 of City Ordinance No. 19,991, approved April 3, 1900, supra, to the admission of which defendant objected on the ground that the same were incompetent, as said sections are invalid and void, as the city had no authority or power to pass the same under its charter, and also the same are a violation of sections 4, 20, art. 2, of the Constitution of Missouri, and articles 5 and 14 of the amendments to the Constitution of the United States. The said objection was by the court overruled, and defendant then and there excepted to the action of the court in overruling said objection, and said sections were read in evidence. That was all the evidence in the case, and the court found the defendant guilty, and adjudged against him a fine of ten dollars and costs." Third. That the defendant filed a motion for a new trial, which was overruled, and he appealed.

Upon this showing, the defendant assigns two errors: First, that there was no evidence to support the finding of the court; and, second, that the city had no power to enact the ordinance upon which this case rests, and that it violates sections 4 and 20 of the Constitution of Missouri, and articles 5 and 14 of the amendments of the Constitution of the United States.

1. The first assignment of error is untenable. The testimony is not preserved by a bill of exceptions or presented by an abstract of the record. The record only shows that "the city offered evidence tending to prove that at the time said notice was issued and served there were weeds on said premises from four to five feet high, and about one-third were sunflowers." The record does not show that the defendant objected to the introduction of such evidence, nor that the court ruled adversely to him upon such proposition. The defendant, however, challenges, not the admissibility of the testimony, but its probative force, by assigning as a ground for a new trial, and as error, that there was no evidence to support the finding; and the particular reason given for the contention is that the evidence does not show that the weeds that were shown to be upon his lot exhaled unpleasant and noxious odors, nor that they were high and rank. The record shows that there were weeds upon the lot, and that they were four or five feet high, and that the notice to abate them was dated on July 10th. So that there is positive evidence that the weeds came within the definition of the terms "weeds," as employed in the ordinance, so far as being "high" is concerned; and, from the time of the year when the offense is charged to have occurred, the trial court was justified in inferring that weeds that were four to five feet high were rank, and also that rank weeds, of the height specified, will exhale unpleasant and noxious odors. But aside from this, the ordinance does not purport to give an exclusive definition of what shall be taken to be within the term "weeds," but, on the contrary, only attempts to include certain things within the meaning of that term, which possibly might not otherwise be commonly understood to be covered by the term, and leaves the term to speak for itself as to all other things. The word "weed" has a common, everyday meaning to the mind of every man. It may also have a technical meaning to the botanist or the chemist. It is a nuisance to the farmer, the gardener, or the owner of a well-kept lawn, notwithstanding that some weeds may contain valuable medicinal properties, which, when extracted, may be of benefit and profit to mankind. But it is a fact of common information of which courts may properly take judicial notice, that a high, rank growth of weeds in a populous community has a strong tendency to produce sickness and to impair the health of the inhabitants, and so may be a nuisance in such locality, notwithstanding they may be comparatively innocuous in the country, when far away from human habitation. The defendant quotes the definition of "weed" as given by the Century Dictionary, as follows: "Any one of those herbaceous plants which are useless and without special beauty, or especially which are positively troublesome. The application of this general term is somewhat relative. Handsome but pernicious plants, as the ox-eye daisy, cone flower, and the purple cow-wheat of Europe, are weeds to the agriculturist, flowers to the æsthetic. There are also plants that are cultivated for use or beauty, as grasses, hemp, carrot, parsnip, morning-glory, become weeds when they spring up where they are not wanted. The exotics of cool countries are sometimes weeds in the tropics." Webster's International Dictionary defines the word "weed" as follows: "(1) Underbrush; low shrubs. (2) Any plant growing in cultivated ground to the injury of the crop or desired vegetation, or to the disfigurement of the place; an unsightly, useless, or injurious plant." Adding in this connection: "The word has no definite application to any particular plant or species of plants. Whatever plants grow among corn or grass, in hedges, or elsewhere, and are useless to man, injurious to crops, or unsightly or out of place, are denominated weeds. (3) Fig.: Something unprofitable or troublesome; anything useless." It is manifest, therefore, that the city ordinance did not intend to restrict the lexicographer's definition of the word, nor to give an exclusive meaning to it. So that the defendant may have been guilty of a violation of section 608, by permitting weeds, as they are commonly known to mankind and to the lexicographers, to grow on his lot, although such weeds may not fall within the inclusive definition of section 612 of the municipal code of St. Louis.

But with truly rural instincts, and with a commendable and lively recollection of his boyhood days and tastes, the defendant eloquently objects to the sufficiency of the evidence to convict him of wrongdoing, because, he says, the evidence shows that one-third of the weeds on his lot were sunflowers—the emblematic flower of our sister state, Kansas; "the queen of our mother's garden"; the flower that has been immortalized by...