City of St. Louis v. J. E. Kaime & Bro. Real Estate Co.

• Decision Date: 01 March 1904
• Citation: 79 S.W. 140,180 Mo. 309
• Parties: CITY OF ST. LOUIS v. J. E. KAIME & BROTHER REAL ESTATE COMPANY, Appellant
• Court: Missouri Supreme Court

79 S.W. 140

180 Mo. 309

CITY OF ST. LOUIS v. J. E. KAIME & BROTHER REAL ESTATE COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 1, 1904

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

Reversed.

Clinton Rowell and Joseph H. Zumbalen for appellant.

(1) The ordinance is void in so far as it imposes upon the agent of the owner the duty of removing or securing unsafe buildings. (a) Because the assembly has no power to impose such duty on the agent. St. Louis v. Weber, 44 Mo. 550; St Charles v. Nolle, 51 Mo. 122; City of Tarkio v Cook, 120 Mo. 9; City v. Eddy, 123 Mo. 557; Mt. Pleasant v. Beckwith, 100 U.S. 514; 1 Dillon Mun. Corp. (4 Ed.), sec. 89; St. Louis v. Bell Tel. Co., 96 Mo. 623; Independence v. Cleveland, 167 Mo. 384; St. Louis Charter, art. 3, sec. 26, subdivisions 6, 12 and 14; Ruschenberg v. Railroad, 161 Mo. 70; 21 Am. and Eng. Ency. Law (2 Ed.), p. 949. (b) Because it is unreasonable, oppressive, inconsistent with the law of the State, and repugnant to fundamental rights. Steinhauser v. Spraul, 127 Mo. 542; Schmidt v. Rowse, 35 Mo.App. 288; Charter, art 12, sec. 6; 21 Am. and Eng. Ency. Law (2 Ed.), p. 985; 1 Smith's Public Corporation, sec. 95. (2) If valid, the term "agent," as used in the ordinance, must be construed to apply only to an agent who has authority from the owner sufficiently broad to justify his securing or removing the building. Parker & Worthington, Public Health and Safety, p. 229.

Chas. W. Bates and B. H. Charles for respondent.

(1) All charter provisions in pari materia must be upheld. Hill v. St. Louis, 159 Mo. 166. (2) The charter power to regulate real estate agents means the power to prescribe the rules upon which they may conduct their business. Hill v. St. Louis, 159 Mo. 171; St. Louis v. Fischer, 167 Mo. 662; Gibbons v. Ogden, 9 Wheat. 196. And the regulation of real estate agents very properly extends to preventing them from handling any property that is dangerous or a menace to the public. (3) And the city being given the power, by paragraphs 5 and 14, to enact section 250 of the Code, this power is not taken away by other provisions of the same instrument which provide for certain special means of obtaining the same result, especially in the absence of any express terms by which such special means might have been made exclusive and prohibitory. State ex rel. v. Walbridge, 119 Mo. 383; Bank v. Sarles, 129 Ind. 201. (4) So far as the regulation of real estate agents is concerned, the only provisions of the charter relative thereto are said paragraphs 5 and 14 of sec. 26, art. 3. (5) If appellant can not be punished in this proceeding, then there is no way to reach the non-resident owner whose building is a violation of the law (Eichenlaub v. St. Joseph, 113 Mo. 404), and a menace to the public. The owner would enjoy absolute immunity. He could go on continually, maintaining a nuisance, and violating the law of the city. It will not do to say the public may itself abate the nuisance. True enough. It may do this for its own protection, but that would not render the owner any less a lawbreaker, nor would his agent, who is continually drawing a profit out of that lawbreaking, be any the less an accessory thereto. (6) The ordinance is not unreasonable nor oppressive as applied to real estate agents who rent or lease dangerous buildings and collect rents therefor. No ordinance will be declared invalid on the ground that it is oppressive or unreasonable unless he who attacks it shows it to be such by the clearest proof. (a) It is a legitimate regulation of real estate agents, and merely imposes upon them the burden which rests upon all in the community, to so conduct their business as not to assist in the violation of the law, which, in the interest of public safety, requires dangerous buildings to be secured or torn down. (b) As applied to the agent with authority to rent, lease or collect rents, it is the legitimate enforcement of proper penal laws for the protection of the public against dangerous buildings. State v. Stone, 118 Mo. 403; Paul v. Virginia, 8 Wall. 168; State v. Buck, 120 Mo. 479.

OPINION

FOX, J.

"This is an action by the city of St. Louis to recover a fine for an alleged violation of an ordinance of said city, commenced in the first district police court, where, upon trial had, the defendant was found guilty and fined $ 100. From the judgment defendant, on the day of its rendition, took an appeal to the St. Louis Court of Criminal Correction. Upon trial anew in said Court of Criminal Correction, defendant was, on October 2, 1902, again found guilty of the charge made against it, and fined $ 250. After unsuccessful motions for a new trial and in arrest of judgment, defendant was allowed an appeal to this court.

"The information or complaint alleged that the defendant was indebted to the plaintiff in the sum of $ 500, for the violation of section 250 of the general ordinance of said city, 'in this, to-wit: in the city of St. Louis, and State of Missouri, on the 1st day of August, 1902, and, on divers other days and times prior thereto, the said J. E. Kaime & Bro. Real Estate Company (a corporation) did then and there as agents therefor, fail to secure or remove the dangerous buildings located at No. 613, 615, 617, 619, 621 and 623 Market Street in City Block No. 131 of said city within three days after having been notified on the 9th day of July, 1902, by the mayor of St. Louis so to do.'

"The ordinance relied upon in said complaint is as follows:

"'Whenever the mayor shall be informed that any building or other structure is in a condition or situation to endanger the lives of persons passing or residing in the vicinity thereof, or to endanger property, he shall immediately notify the commissioner of public buildings, who shall forthwith proceed to make a survey or examination of said building or structure, and report to him his opinion of the same. If from said report or any other reliable information the mayor shall believe that said building or other structure is in a condition or situation to endanger the lives of persons or injure property, he shall notify the owner or agent of such building or other structure to have the same removed or otherwise properly secured within three days thereafter, and should such owner or agent fail to comply with said notice, it shall be the duty of the commissioner of public buildings to proceed forthwith to have the same demolished, or so much thereof as may be necessary. And if any such owner or agent shall fail to comply with the requirements of such notice he or they shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than twenty-five nor more than five hundred dollars. The cost of demolishing such building or other structure shall be paid in the first place by the city out of the contingent fund. The comptroller, upon a certificate from the commissioner of public buildings, approved by the mayor, shall then make out bills for said work against the owner or owners of said building or other structure. In case said bills are not paid upon presentation, with the consent of the mayor, they shall be placed in the hands of the city attorney or any other officer of the law department, who shall sue for the same as in the case with other debts due the city, and the amount, when paid, shall be credited to the contingent fund.'

"Plaintiff's evidence tended to show that the buildings in question had been examined in July, 1902, and on October 1, 1902, by the chief and assistant inspector of the building commissioner's office; that they were in an unsafe and dangerous condition; that the walls are out of plumb, the floors sunk, the joists decayed where they enter the walls; that one is a two-story frame, one a three-story brick, and the others two-story brick buildings, with stores on the first floor and rooms above; that all are very old and dilapidated, and are occupied by tenants; that the defendant is the agent of said buildings for the Burnes estate; that the building commissioner reported the dangerous condition of the buildings to the mayor of the city of St. Louis, and that that latter on July --, 1902, caused a written notice to be served on the defendant requiring it to have the buildings removed or properly secured within three days.

"On behalf of the defendant there was evidence of three experienced builders tending to show that neither of said buildings, nor any part thereof, was in an unsafe or dangerous condition.

"It appeared that the buildings are owned by the Burnes estate, a Missouri corporation, having its office at St. Joseph, Missouri, and that the defendant is the agent of the Burnes estate for renting said buildings and collecting the rents; that defendant has authority from the owner to make temporary repairs, such as whitening and papering, but none to make permanent and substantial repairs on said buildings, or to demolish or remove them; that defendant notified the Burnes estate in July, 1902, that the buildings had been condemned by the city, but had not received any authority from the owner to remove or secure them."

At the close of the evidence, defendant moved for its discharge, which motion was by the court overruled. The cause was submitted to the court, which resulted in the finding of the defendant guilty and the punishment assessed as heretofore stated.

Motions on the part of defendant for new trial and in arrest of judgment were by the court overruled, and this cause is now before us, on appeal, for review.

The record before us upon this appeal presents two legal propositions for our solution. First: The power of the Municipal Assembly of the city of St. Louis to enact the ordinance upon...