City of Hannibal v. Richards

• Decision Date: 30 April 1884
• Citation: 82 Mo. 330
• Parties: THE CITY OF HANNIBAL v. RICHARDS, Appellant.
• Court: Missouri Supreme Court

82 Mo. 330

THE CITY OF HANNIBAL

v.RICHARDS, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Hannibal Court of Common Pleas.--HON. THEODORE BRACE, Judge.

REVERSED.

Thomas H. Bacon for appellant.

The section of the charter authorizing this proceeding must be strictly construed. Cooley on Tax., p. 209, note 1; Wood on Nuis., 770, § 738. And as the claim involved under this section was created by a summary proceeding on the part of respondent, the strictest proof will be required to make out a cause of action. Weimer v. Bunbury, 30 Mich. 201; Kansas v. Campbell, 62 Mo. 585. Where the alleged grievance is a requirement of the public health, the grievance must amount to a public nuisance before the delegated power, either of local assessment or of police regulation can be applicable. There must be an injury to the public health. Wood on Nuis., 771, § 739. There could be no public necessity to fill or drain defendant's lots unless in their condition they constituted a public nuisance. The charter does not condition the municipal power on the maintenance of a public nuisance, and so far the charter is in violation of the constitution. The charter founds the proposed cause of action absolutely on the mere opinion of the city, and this is likewise beyond the legislative power. River, etc., v. Behr, 77 Mo. 91, p. 98. The ordinance did not allege a nuisance, neither did it allege that the public health required the filling of the lots. The petition did not allege a nuisance, neither did it allege that the public health required the filling of the lots. There was no proof of a nuisance, and no proof as to the requirements of the public health. The court erred in excluding the plat of the city showing the riparian character of appellant's lots. The court erred in excluding appellant's title deed, as it showed that he was owner of the lots at the time of the city's wrongful obstruction of the channel, and that appellant had done nothing to contribute to the condition complained of. The court erred in excluding appellant's evidence showing that whatever unhealthy conditions existed were wrongfully created by the city itself against and over the protest of appellant at the time. The court erred in excluding appellant's evidence, showing that the supposed unhealthy condition could have been removed by drainage at an expense of $75. River, etc., v. Behr, 77 Mo. 92. The general assembly did not undertake to make the city's mode conclusive. The city ordinance was subject to judicial review. Corrigan v. Gage, 68 Mo. 541. The court erred in excluding evidence to prove that the filling was only done on the rear end of the lots, and on an undescribed fraction thereof. The city could not charge any land but that which it filled, and the identity of the filled land was material. The court erred in excluding appellant's evidence as to the cost of filling. An allegation was that defendant was indebted. This was denied and was sufficient. Westlake v. Moore, 19 Mo. 556. The court erred in excluding appellant's evidence that the public health was not injured by said lots. State v. Addington, 77 Mo. 110; River, etc., v. Behr, 77 Mo. 91 The exclusion of all defendant's testimony subjects the case to review without a motion for new trial. Coots v. Morgan, 24 Mo. 522; The offers to prove have the same effect as if the proof had been made. 68 Mo. 544. The court erred in overruling the motion for new trial, and the motion in arrest wherein all above considerations were specially renewed. The court erred in excluding the evidence that the city itself created and wrongfully created the condition complained of. Weeks v. Milwaukee, 10 Wis. 258; Cooley on Const. Lim., 512; Corrigan v. Gage, 68 Mo. 541; Cape Girardeau v. Riley, 72 Mo. 220, p. 214, top; St. Louis v. Richeson, 76 Mo. 470, p. 484; Barring v. Com., 2 Duvall (Ky.) 95.

Easley, Eby & Russell for respondent.

The ordinance of the city council made in pursuance of Sess. Acts, 1873, p. 253, § 14, is conclusive of the question of whether the health of the city required the filling of the lots. The presumption is that whatever was done was rightfully done, and may be held as prima facie evidence, that the health of the city required the filling of the lots. Salem v. Railway Co., 98 Mass. 457. A judicial determination that the lots in question were nuisances, and injurious to public health, was not required before the city could act in abating such nuisances and protecting the public health. The city charter expressly confides that power to the city, and it had exercised it in this case by declaring the lots in question nuisances, and ordering that they be filled up. Sess. Acts. 1873, pp. 242, 243, §§ 19, 20; p. 253, § 14; Kiley v. City of Kansas, 69 Mo. 109. The appellant had the right to show that the health of the city did not require the filling of the lots. City of St. Louis v. Schnuckelberg, 7 Mo. App. 536. This the appellant did not attempt to do. He only proposed to prove “that no person's health was ever injured by said condition of defendant's lot.” If the action was by a private person for damages arising from the nuisance, special injury would have to be shown. Wood on Nuis., p. 655, § 618. But the whole machinery of the police power over matters affecting the health of communities is designed to prevent injury, and not to furnish redress for injuries sustained. Wood on Nuis., p. 72, § 70. The charter of the city gives both a general (Acts 1873, p. 243, § 20) authority to cause nuisances to be abated at the expense of the owners of the ground; and a special authority over the filling up of lots when the health of the city requires it. This special provision, “in view of the end for which it is given is not subjected to a hostile or even a narrow construction.” 1 Dillon Munic. Corp. (3d Ed.), p. 384, § 379; Kiley v. City of Kansas, 69 Mo. 107. Both the general and special provision are proper exercises of the police power of the state. Cooley's Const. Lim. (5th Ed.) 741. That no provision is made for compensation to the lot-owner, does not render the proceedings invalid. 1 Dillon Munic Corp. (3d Ed.) p. 166, § 141, note. The deed and plat offered in evidence were properly excluded. There was no issue made as to the ownership of the property. The court properly excluded the evidence proposed to be offered as to the value of the amount of work done. The city had, in good faith, expended the amount sued for, and is entitled to recover it. 1 Dillon Munic. Corp. (2d Ed.) p. 213, § 96. The allegation of the petition was that the “cost of filling” said lots were the amounts named. This the answer did not deny. The answer simply asserted that the appellant was not indebted, etc. This was not a denial of the alleged cost of filling the lots.

HENRY, J.

This is an action by which plaintiff seeks to recover of defendant the cost and expense of filling two lots owned by him in the city of Hannibal. The work was done by the city on the refusal of defendant to comply with an ordinance, ordering the owners of certain lots to fill them, the health of the city requiring it in the opinion of the city council, as expressed in the preamble to the ordinance. By the city charter whenever, in the opinion of the city council, the health of the city requires...