Bellerive Investment Co. v. Kansas City

• Decision Date: 01 February 1929
• Docket Number: No. 27223.,27223.
• Parties: BELLERIVE INVESTMENT COMPANY ET AL., Appellants, v. KANSAS CITY ET AL.
• Court: Missouri Supreme Court

13 S.W.2d 628

BELLERIVE INVESTMENT COMPANY ET AL., Appellants, v. KANSAS CITY ET AL.

No. 27223.

Supreme Court of Missouri, Division No. 1.

February 1, 1929.

Appeal from Jackson Circuit Court. — Hon. Samuel A. Dew, Judge.

AFFIRMED.

Johnson, Lucas & Graves and Gossett, Ellis, Dietrich & Tyler for appellants.

(1) The ordinance is unreasonable and void on its face, because its enforcement would prevent appellants from legitimate use of their property, which would be equivalent to a taking and damaging without due process of law. There is no declaration of a nuisance. There is provided only a penalty. U.S. Constitution, Sec. 1, 14th Amendment; Mo. Constitution, Secs. 4, 20, 21 and 30, Art. 2; State ex rel. Penrose v. McKelvey, 301 Mo. 39; St. Louis v. Evraiff, 301 Mo. 231; St. Louis v. Dreisoerner, 243 Mo. 217; Ambler Realty Co. v. Euclid, 297 Fed. 313; Ex Parte Lerner, 240 Mo. 18; State ex rel. v. Ashbrook, 154 Mo. 394; St. Louis v. Dorr, 145 Mo. 466; St. Louis v. Hill, 116 Mo. 527. (2) There cannot possibly be any menace or risk in keeping more than three automobiles which contain neither gasoline nor oil in the situation predicated, i.e., under sleeping or residence quarters; nor is the risk materially different, for example, between three and four or five automobiles with gasoline and oil. The alleged ordinance is therefore unreasonable and void, especially in utterly failing to distinguish between the automobiles having in or about them oil, gasoline and batteries and those not so equipped. (3) The affidavits put in evidence over the objection of plaintiffs were and are incompetent, irrelevant and immaterial. They do not tend to prove any allegation of the answer, nor are they in support of the ordinance. The answers practically admit all of the allegations of the petition. There is no mention in the ordinance of gasoline, oil, electricity or "live storage." All facts specifically alleged in the petition were, also, expressly admitted at the trial to be true.

John T. Barker, R.K. Ryland and A.R. Wolfe for respondents.

(1) The ordinance is constitutional and valid because it is in accord with predominant judicial opinion which holds that an ordinance of the general character of the one involved in this case is a valid exercise of the police power. State ex rel. Cadillac Co. v. Christopher, 298 S.W. 725; Opinion of the Justices of Supreme Court, 234 Mass. 597; Miller v. Board of Public Works, 195 Cal. 477; People ex rel. v. Ericsson, 263 Ill. 368; McIntosh v. Johnson, 211 N.Y. 265. (2) The ordinance in question applies to automobiles as the word is commonly understood, and necessarily includes gasoline tank, electric storage battery and grease and oil as well as all other component parts of a complete automotive vehicle. The court will take judicial notice of the common fact that no automobile is free from grease, oil, gasoline, and storage battery, from the moment it leaves the assembling plant to the time it reaches the junk heap; in fact, such elements are a component part of every automobile. (3) The affidavits of a fire warden and fire chief as to the hazards necessarily connected with a stored automobile are wholly competent and highly relevant.

SEDDON, C.

This is a suit in equity wherein the plaintiffs seek to enjoin the municipality of Kansas City, and certain named administrative officers of said municipality, from enforcing an ordinance of said city, No. 44950, duly enacted by the common council of said city, and approved by the mayor of said city on March 30, 1923, which ordinance became effective and operative on the date of its approval by the mayor of Kansas City. The ordinance in question, omitting its title and caption, is as follows:

"Section 1. No person, firm, or corporation, shall use, occupy, operate, manage or let any living or sleeping quarters over any room, place or establishment in which more than three automobiles shall be kept, stored, parked, placed or sheltered at any one time; and no person, firm or corporation shall keep, store, park, place or shelter more than three automobiles at any one time underneath any room, place or establishment used, occupied, operated, managed or let for living or sleeping quarters.

"Section 2. Any person, firm or corporation violating any of the provisions of this ordinance shall be fined in a sum not less than $1 nor more than $500, and each day's violation of this ordinance shall constitute a separate offense."

The plaintiff and appellant, Bellerive Investment Company, is a corporation, and is the owner and operator of a large family hotel and apartment building, containing about 300 rooms, situate at 214 East Armour Boulevard, within the corporate limits of said municipality. The plaintiff and appellant, Martha B. Bell, is the lessee and operator of a similar family hotel and apartment building, known as Rockhill Manor, containing about 100 rooms, situate at 43rd and Locust streets, within the corporate limits of said municipality. The plaintiff and appellant, Charles O. Jones, is the owner and operator of several similar apartment buildings, variously situated within the corporate limits of said municipality. The defendants and respondents herein, other than the municipal corporation named, are respectively, the mayor, the chief of police, the chief of the fire department, the chief inspector of the fire prevention division of the fire department, and the city counselor, of said municipality.

The petition alleges, among other matters:

"Plaintiffs further state that in the ownership, and operation, respectively, of the premises is included the business of renting out rooms and apartments in such respective buildings to families and other guests and apartment or room tenants; plaintiffs, respectively, as such owners and operators, providing heat, janitor and elevator service, and having charge of all the stairways, hallways, entrances, reception rooms and other parts of such buildings devoted to the common or joint use of themselves and tenants; and included in such for common use are spaces in the basements and lower parts of such respective buildings, used for the keeping therein of automobile cars, belonging to plaintiffs' respective guests, and the providing and maintaining of such spaces, commonly known as garages, for private use of plaintiffs and their such guests and tenants, respectively, in said buildings is a necessary part of the said respective businesses of plaintiffs, and of the use and enjoyment of the said buildings, and such spaces in such garages for such automobiles, respectively, belonging to their said respective guests, are rented to such guests and tenants either as a part of the lettings or leases to such respective guests and tenants of the living rooms and apartments occupied by them respectively in such buildings; and such garage space lettings are made to all such guests and tenants as may desire the same, and a great number of the guests and tenants in each such respective buildings do so have included in, and do have so leased to them, spaces in such garages respectively for the purpose aforesaid;

"That plaintiffs, while separately owning and operating their said respective buildings, are in common position and interest in respect to the matters herein complained of and are similarly situated in respect thereto, and so they join in and bring this suit in behalf of themselves and all others similarly situated who may choose to join herein, and in the burden of this suit in respect to costs and expenses and the prosecution thereof and the relief sought;

"That plaintiffs, and all such other persons similarly situated, are entitled to the same relief against the matters herein complained of;

"Plaintiffs further state that in their said respective buildings in so operating, using and enjoying the same, they, as aforesaid, respectively, let living rooms and sleeping quarters in the stories and parts of such respective buildings over and above said garage spaces, and ordinarily and usually plaintiffs in each of said respective buildings rent spaces for, and there are kept therein, respectively, in each of said buildings, more than three automobiles; that the same are so kept, stored and parked therein for valuable consideration and under contracts therefor, as aforesaid, by the owners of said cars, who are at the same time guests and occupants of the living quarters, rooms and apartments in the upper part of such respective buildings;

"That each of the aforesaid buildings was erected and constructed, and began to be so used for the purposes above mentioned, long prior to March 30, 1923, except those of C.O. Jones erected in the year 1924, and have been so continuously used and occupied, including such garage spaces or quarters therein, for the purposes aforesaid since long prior to March 30, 1923, and each of said buildings, including those of C.O. Jones aforesaid, was erected and constructed in accordance with the laws of Missouri and with the charter and valid ordinances of Kansas City, Missouri, as the same were and existed at the time of the respective constructions and erections of such buildings; and the same, and each of them, was lawfully and rightfully erected and constructed by plaintiffs or their grantors, respectively, the owners or lessors thereof;

"That the said buildings, and each of them, were erected and constructed under permits therefor, except those of C.O. Jones erected in the year 1924, issued by defendant, Kansas City, Missouri, through its building department, as provided by the city charter and ordinances, which said permits were issued upon proper applications therefor, and submissions, to the superintendent of buildings of said city, of the plans and proposed details and particulars of such buildings, including the spaces to be used as garages aforesaid in said buildings, and with specifications of such intended use and uses of said spaces for the keeping and maintaining,...