City of Nevada v. Welty

• Decision Date: 09 June 1947
• Docket Number: 40128
• Citation: 203 S.W.2d 459,356 Mo. 734
• Parties: City of Nevada, Missouri, a Municipal Corporation, v. John C. F. Welty and Merlin L. Welty, Appellants
• Court: Missouri Supreme Court

203 S.W.2d 459

356 Mo. 734

City of Nevada, Missouri, a Municipal Corporation, v. John C. F. Welty and Merlin L. Welty, Appellants

No. 40128

Supreme Court of Missouri

June 9, 1947

Rehearing Denied July 14, 1947.

Appeal from Vernon Circuit Court; Hon. Dewey P. Thatch Judge.

Affirmed.

A E. Elliott for appellants.

(1) A declaratory judgment will not determine the rights of parties upon a state of facts which have not arisen, nor upon a matter which is speculative, future, contingent or uncertain. Anderson on Declaratory Judgments, sec. 61, p. 174; Jared v. Fitzgerald, 195 S.W.2d 1. (2) The use of Declaratory Judgment Law rests in the sound judicial discretion of the court, but cannot be made substitute for an existing remedy. Koenig v. Koenig, 191 S.W.2d 269. (3) The City of Nevada could not by ordinance declare and suppress the pens of defendants as a nuisance when as a fact they were not a nuisance. City of Sturgeon v. Wabash Ry. Co., 233 Mo.App. 633, 17 S.W.2d 616; Potashnick Truck Service v. Sikeston, 351 Mo. 505, 173 S.W.2d 96; Brown v. Carrollton, 122 Mo.App. 276, 99 S.W. 37; Hisey v. Mexico, 61 Mo.App. 248; City of St. Joseph v. Georgetown Lodge, 11 S.W.2d 1082. (5) The pens of defendants do not constitute a nuisance and the City of Nevada has no authority to direct their removal. Allison v. Richmond, 51 Mo.App. 133; Deevers v. Lando, 220 Mo.App. 50, 285 S.W. 746.

Amos Wight for respondent.

(1) The declaratory judgment act furnishes a particularly appropriate method for the determination of controversies relative to the construction and validity of statutes and ordinances. City of Joplin v. Jasper County, 161 S.W.2d 411, 349 Mo. 441; City of Chattanooga v. Tennessee Electric P. Co., 172 Tenn. 524, 112 S.W.2d 385; Borchard, Declaratory Judgments, pp. 764-801, 877, 893, 976; 16 Am. Jur., secs. 24, 60. (2) The City of Nevada had express authority by statute to enact Ordinance Number 1955, suppressing and abating appellants' stock yard or stock pens. R.S. 1939, sec. 6957; Potashnick Truck Service v. Sikeston, 351 Mo. 505, 173 S.W.2d 96. (3) The discretion and judgment of the legislative body of the city will not be interfered with by the courts unless clearly oppressive and unreasonable. Women's St. Andrew Society v. Kansas City, 58 F.2d 593; Kansas City v. McAteer, 31 Mo.App. 433; Kansas City v. Liebi, 252 S.W. 404, 298 Mo. 569. (4) Nuisance may be properly regulated or prohibited or abated, without a denial of due process of law. City of St. Louis v. Stern, 3 Mo.App. 48; Dodds v. Kansas City, 152 S.W.2d 128, 347 Mo. 1193; 16 C.J.S., secs. 571, 679, 198, l.c. p. 575, sec. 612, l.c.p. 1230. (5) In case upon facts tried without a jury. The judgment shall not be set aside unless clearly erroneous. Sec 114, p. 388, Laws 1943.

OPINION

Hyde, J.

This is an action seeking a declaratory judgment to uphold the validity of an ordinance of the City, declaring stock pens in defendants' sales pavilion to be a nuisance and ordering their removal. The court entered judgment sustaining the validity of the ordinance and defendants appealed. The City has filed a motion to dismiss this appeal for failure of defendants' brief to comply with the rules, which is overruled because we find it sufficient for consideration of the points raised.

The City sought a declaration not only as to the validity of the ordinance but also that it and its officers would not be liable in damages to defendants if it removed the stock pens. Defendants' answer asserted their intention to sue the City "and its officers who destroy any of their property illegally." The judgment declared the ordinance valid; finding that defendants maintained stock pens or a stockyard on their premises, that this is "dangerous and detrimental to the health of the inhabitants of the City living near thereto and is in fact a nuisance," and that they refused to remove them, after notice, in compliance with the ordinance. The judgment further declared: "that in the event said stock pens or stockyard are removed by the plaintiff acting through its Chief of Police, said Chief of Police and those acting under his direction shall not be liable for damages for the removal of said stock pens or stockyard provided that in the removal of said stock pens or stockyard no unnecessary or unreasonable damage is done to the property of the defendants and that the plaintiff shall not be liable for damages unless the plaintiff directs said Chief of Police to damage the property of defendants to an extent not reasonably necessary for removal of said stock pens or stock yard."

Defendants contend that this is not a proper case for a declaratory judgment. They say the City is asking for an advisory opinion upon a state of facts which have not arisen. We think it is clear that there was a controversy over the validity of the ordinance and that the City sought a declaration of its rights thereunder. This is expressly authorized by Section 2 of the Declaratory Judgment Act. [Section 1127, R.S. 1939, Mo. Stat. Ann.] While the above quoted declaration, concerning the removal of the stock pens, is stated so as to seem to be subject to the criticism of being an advisory opinion on hypothetical facts, what it really means is that the City has the right and authority to enforce the ordinance by removing the stock pens in a reasonable and proper manner without any unnecessary damage. Actually the City's rights and liabilities under the ordinance was a present controversy. Defendants could have had the validity of the ordinance and its effect upon their rights determined by a declaratory judgment action before proceeding in defiance of it. We hold that declaratory judgment was a proper remedy for the City.

Defendants contend that the ordinance is invalid because they say the stock pens did not in fact constitute a nuisance and, therefore, the City could not declare and suppress them as a nuisance; and that to do so deprives them of their property without due process of law in violation of State and Federal Constitutional provisions. Defendants, who are auctioneers, have conducted live stock sales since 1932 in a pavilion on the Northwest corner of the intersection of Cedar Street (running North and South) and Hunter Street (running East and West). Hunter Street divides the business section of the town from the residential section. The public square and main retail business section is one block to the south. Defendants have a filling station on the southeast corner of their property; west of the filling station is a building occupied by a restaurant, implement store and defendants' office and north of this is the pavilion containing the live stock sales ring and the cattle and hog pens. The east portion of the premises (north of the filling station) is vacant and is equipped with cattle chutes. Adjoining defendants' property on the west is a building occupied by Swift & Company's buying station; next to it (with a vacant lot between) is the Baptist Church. The remainder of the block is entirely built up with residences, except that the Catholic Church and Parochial School is in the northwest corner. The block to the east, across Cedar Street, is entirely built up with residences except that the Presbyterian Church is in the southeast corner. Other blocks to the north and east are residence blocks.

Sales were held every Saturday and a large volume of cattle, hogs, sheep and some horses and goats were handled. Stock sold on a single day reached a maximum of 500 hogs and 175 cattle. Sheep averaged 50 or 60 per sale and horses 12 to 15. Live stock was brought to defendants' premises each Saturday morning by trucks, unloaded in the pens and remained until after the sale. Live stock was brought from territory extending about 75 miles each way from the City. Live stock was removed by trucks, the time depending on the purchasers. Some stock would not be moved until late at night and occasionally not until Sunday morning. Stock trucks would begin to arrive before 10:00 a.m. and were parked on both sides of the adjacent streets for several blocks, blocking traffic and residence driveways, remaining until the live stock was removed. More than 1000 people would attend the sales.

In August 1945, the stockyards and buildings were burned and, thereafter, defendants appeared before the City Council to secure a building permit which was refused. Defendants began to rebuild without it. On September 19, 1945, a notice was served ordering them to appear before the City Council and show cause why the maintenance of their stock pens should not be abated as a nuisance. A public hearing was held by the Council, at which defendants and their supporters were heard, as well as persons opposed to the stock pens. Thereafter the City Council duly passed the ordinance in question and a certified copy thereof was served on each of the defendants on November 8, 1945, ordering them to remove the nuisance within thirty days. Defendants refused to remove the stock pens and they were still in operation at the time of the trial. Defendants also advised the officers of the City that if the pens were removed by the city officers as provided in the ordinance, they would sue the city and its officers.

Defendants rebuilt their pavilion building with walls of concrete block construction completely enclosing the stock pens. There was ventilation through windows in the walls and louvres in the roof. They said the cost of reconstruction was about $ 17,000.00, and that their total investment in the property was $ 25,000.00. The hog...