City of St. Louis v. Brune

• Citation: 515 S.W.2d 471
• Decision Date: 12 November 1974
• Docket Number: 57429,Nos. 57428,s. 57428
• Parties: CITY OF ST. LOUIS, Respondent, v. Paul F. BRUNE, Appellant.
• Court: United States State Supreme Court of Missouri

Page 471

515 S.W.2d 471

79 A.L.R.3d 701

CITY OF ST. LOUIS, Respondent, v. Paul F. BRUNE, Appellant.

Nos. 57428, 57429.

Supreme Court of Missouri, En Banc.

Nov. 12, 1974.

Robert C. McNicholas, Jack L. Koehr, City Counselors, Raymond J. Issa, Asst. City Counselor, St. Louis, for respondent.

J. E. Sigoloff, St. Louis, for appellant.

HENRY I. EAGER, Special Commissioner.

The defendant, appellant, was convicted in the St. Louis Court of Criminal Correction of two violations of a St. Louis Ordinance prescribing minimum housing standards. The violations allegedly arose from the operation of two different apartment buildings. Section 390.080 of Ordinance 51637 forbade any owner of such properties to permit the occupancy of any dwelling units which were not in compliance with the ordinance; Section 391.040 required that every dwelling unit 'shall have a tub or shower bath in good working condition, properly connected to approved hot had cold water and sewer systems in the toilet room or in a separate room adjacent to such dwelling unit.' Defendant concedes that his units did not and do not contain tubs or showers so connected. They apparently did contain 'water closets' and that is not an issue here. Separate violations were charged as to defendant's buildings at 3917--3921 1/2 Finney (Avenue) containing six units or apartments, and at 4030--32 1/2 Finney containing six units, the latter of which seems also to have abutted on Fairfax and is thus referred to rather confusingly at times. The cases were tried together without a jury, the Court found defendant guilty in each case and assessed a fine of $100 and costs against him in each case. No special findings were requested or made. Defendant filed motions to set aside the judgments and for a new trial, specifically raising the point that the Court had erred in sustaining the validity of Section 391.040, supra, because it was unreasonable, arbitrary and confiscatory, that it bore no reasonable relationship to health, welfare or safety, and that it denied to defendant due process under the 14th Amendment to the United States Constitution and took his property for public use without just compensation. Substantially identical allegations had been made in the answers filed by defendant to the informations. The motions were overruled and defendant duly appealed. The cases have been docketed and considered together in this Court. We have jurisdiction because of the constitutional question and the time of the filing of the notices of appeal.

This case has been here previously. See 466 S.W.2d 677 (Mo.1971). The defendant had raised the constitutional issue there and the Court clearly defined the problem. However, the trial court had excluded much evidence offered by the defendant to support its contention, and in fact it would seem to have excluded nearly all of defendant's proferred evidence. This Court declined to rule on the merits on the record as there presented and reversed and remanded the case, holding that such evidence was relevant and admissible. Following the retrial, we have the present appeal. Considerable evidence was received but the record still leaves much to be desired. Some features have not been completely developed, and the transcript is replete with handwritten deletions, additions and corrections, some apparently necessary to attain a reasonable degree of clarity. The parties have approved the transcript and we accept it for what it may be worth. By a stipulation added to the transcript it is stated: that the city subpoenaed defendant's books, records etc., reflecting the income and expenses on these properties for the years 1950 through 1969, and also all books, records etc., reflecting similar information for properties 'within a 3 block vicinity * * *,' in which defendant had a controlling or managing interest; that defendant failed to produce such records, and that the plaintiff 'by agreement and stipulation with defendant's attorney' moved for an order striking all of defendant's testimony as to income, rent and expenses relating to the two properties here involved, and that said motion was sustained. The transcript contains a brief statement that plaintiff 'by agreement' moved to strike out all evidence of defendant 'as to income received from property in issue memorandum in file.' Several rather peculiar features thus appear in this part of the procedure, but since defendant raises no point whatever concerning it, we shall, with some doubt, disregard his evidence regarding income and expenses. Actually, there is not much, anyway.

It may simplify matters to refer to 4030--4032 1/2 Finney as tract 1, and 3917--3921 1/2 Finney as tract 2. A city building inspector testified at some length, but it is not necessary to review his testimony in detail. Defendant admitted that the buildings did not comply with the ordinance in the respects designated, and he assumed responsibility as the actual owner. This witness for the city was familiar with the properties on both sides of Finney from Vandeventer to Sarah and stated: that 'the properties in the area are in a vandalized condition * * *,' apparently meaning most of them; that probably four to six buildings have been razed; and that there were sundry vacant lots. A group of many photographs was identified and received as an exhibit; these supposedly represented buildings and vacant lots on Finney and Fairfax in the immediate vicinity of these properties. The witness recognized some of them. They show buildings with windows and doors boarded up, windows broken or entirely knocked out, and badly dilapidated conditions generally. The witness thought some of these buildings had contained baths, but that this did not prevent their 'vandalization'; he did not know whether the absence of tubs or showers and hot water might contribute to the vacancies, but recognized that some people were willing to pay very low rents with little or no improvements.

From the defendant's testimony we note the following as its substance: that he had been engaged in real estate ownership and management for 61 years; that he had made many real estate loans; that he acquired tract 1 on April 18, 1952, and tract 2 on October 15, 1950; that he thought there were then no vacant lots; that most of his tenants are living on social security or aid to dependent children, although a few work; that neither property has any sale value or loan value, and there are no buyers for them at any price; that the condition of the neighborhood 'has something to do with it'; that when a building there becomes vacant it immediately disappears, for the vandals steal everything and tear it up; that he had an estimate on the cost of installing the required equipment and that it ran from $1,200 to $1,300 per unit, or $7,800 per building; that each building is about 70 years old, with a probable life of four or five years if not vandalized sooner; that the improvements demanded would not increase the market value, for there would still be no buyers; that he would have to charge about $60 a month rentals to pay for the improvements over a five-year period and it would not be possible to get it; that if the buildings were not rented and became vacant, they would 'disappear'; that in a two-block area on Finney and Fairfax he had found about 39 buildings vacant and vandalized and a number of vacant lots; that people don't want to live there; that he recently sold a tenunit building 'with baths' for $1,800 at 3115--3123 Brantner, a two-family building on 22nd Street for $500, and (apparently) a building at 2514 N. Market for $1,500. Defendant further testified that his father and mother lived to the respective ages of 87 and 85 without having any baths connected to pipes and that he had none until he was 21.

A physician, Dr. Herman Blumenthal, specializing in pathology, testified for defendant: that the purpose of bathing is to remove dirt; that bathing can be done in various ways, and that 'there is no special effect in method'; that there is no medical requirement of pipes and a tub; that hot and cold water can be used in any tub or container, and that the absence of a tub or shower from an apartment unit would not, in his opinion, be detrimental to the occupants. A plumbing contractor testified that his estimates for installing tubs, waterlines and heaters, with wash basins, was $800 per unit or $4,800 for a six-unit building. A general contractor estimated the cost of removing and rebuilding the walls, entrances, floors, etc., in making such improvements at $410 per unit or.$2,460 for a six-unit building; he further testified that this would reduce each kitchen to about the size of a closet.

In rebuttal, the city produced Dr. William Blanton who testified: that any dwelling unit without hot water is detrimental to health because of the relative difficulty in removing bacteria without it; that bathing is necessary from a public health standpoint, and that one cannot effectively perform the function of bathing without a tub or shower connected to hot water. The foregoing constitutes the essential evidence.

As said by Judge Donnelly in 466 S.W.2d at l.c. 678: 'The problem of attempting to reconcile the quest for adequate housing for tenants with protection for the property rights of landlords has drawn the attention and consideration of the scholars and of the courts * * *

'The essential question presented 'is whether the ordinance in question is fairly referable to the police power of the respondent municipality, and whether the expressed requirements or regulations of the ordinance have a substantial and rational relation to the health, safety, peace, comfort, and general welfare of the inhabitants of the municipality.' * * *'

Certain principles seem to have been more or less generally accepted; these are, in substance, the following. Owners of property hold it subject to the reasonable exercise of the police power. The ordinance or other law...