City of St. Louis v. Evans, s. 48018-48021

• Decision Date: 12 September 1960
• Docket Number: Nos. 48018-48021,No. 1,s. 48018-48021,1
• Citation: 337 S.W.2d 948
• Parties: CITY OF ST. LOUIS, a Municipal Corporation, Plaintiff-Appellant, v. Noble Woodson EVANS, Defendant-Respondent (two cases). CITY OF ST. LOUIS, a Municipal Corporation, Plaintiff-Appellant, v. William Merrick HOURIGAN, Defentant-respondent (two cases)
• Court: Missouri Supreme Court

Page 948

337 S.W.2d 948

CITY OF ST. LOUIS, a Municipal Corporation, Plaintiff-Appellant, v. Noble Woodson EVANS, Defendant-Respondent (two cases).

CITY OF ST. LOUIS, a Municipal Corporation, Plaintiff-Appellant, v. William Merrick HOURIGAN, Defentant-respondent (two cases).

Nos. 48018-48021.

Supreme Court of Missouri, Division No. 1.

Sept. 12, 1960.

Thomas J. Neenan, City Counselor, Eugene P. Freeman, Associate City Counselor, William M. Austin, Asst. City Counselor, St. Louis, for appellant.

Carl E. Starkloff, St. Louis, for respondents.

DALTON, Judge.

This is an appeal by the City of St. Louis from judgments of dismissal in each of four prosecutions instituted by informations filed against defendants for violation of particular ordinances of the City of St. Louis. As to the city's right of appeal, see City of St. Louis v. Penrod, Mo.App., 332 S.W.2d 34, 35.

While the record does not disclose it, we assume that these cases were originally filed in the City Court (Police Court) and appealed by the losing party to the St. Louis Court of Criminal Correction. In any event the four cases, two against each defendant, reached that court and were consolidated for trial upon the statement of the Assistant City Counselor that each of these cases arose out of the 'identical fact situation.' The appeals have also been consolidated in this Court.

The first case against each defendant is based upon an alleged violation of 'Ordinance No. 44886, Vol. 2, Part 1, Ch. 1, Sections 14 and 56, approved 2/28/49' in that on the 8th day of July, 1959, the named defendant 'did then and there wilfully and unlawfully fail to allow an authorized agent of the Building Commissioner of the City of St. Louis to enter upon the premises known as 4047 Delmar Ave., St. Louis, Missouri, for the purposes of performing his duty as inspector * * *.'

The second case against each defendant is based upon an alleged violation of 'Ordinance No. 44886, Vol. 1, Ch. 46, Sections 36 and 45; Ch. 1, Sec. 16, approved 2/28/49' in that on the 8th day of July, 1959, the named defendant 'did then and there wilfully and unlawfully hinder and obstruct an authorized City Officer * * * a Building Inspector, for the City of St. Louis, in the performance of his official duties as inspector * * * and unlawfully prevent a Building Inspector, for the City of St. Louis from inspecting the premises known and numbered as 4047 Delmar Blvd., St. Louis, Missouri * * *.'

After hearing the evidence in support of the first and second charges against each defendant, the court found that the City of St. Louis did not have the lawful authority to enact Section 14, supra, upon which the first charges were based. As to Section 36, supra, upon which the second charges were based (the other sections referred to are penalty sections) the court found that the city had no lawful authority to require defendants to refrain from interfering with a city officer when such officer was attempting to make an inspection of premises controlled by the defendants, when the inspection was for the purpose of carrying out duties imposed on said officer by other ordinances of the city relating to public health, safety, and welfare; and that Section 14, supra, and said Section 36, supra (to the extent that Section 36 required the defendants not to interfere with the officer's inspection for the mentioned purposes), were both null and void and violative of Article 1, Sections 15 and 19 of the Constitution of Missouri, V.A.M.S., and the 14th Amendment to the Constitution of the United States. Defendants were ordered discharged from all four cases.

In view of the issues presented this Court has jurisdiction of the appeal. Section 3, Article V, Constitution of Missouri 1945.

In the trial of the cause, over the objection of defendants, the city was permitted to offer evidence tending to show: (1) that on October 11, 1957, the Department of Public Safety, Division of Building and Inspection of the City of St. Louis issued a 'Certificate of Occupancy' to the defendant Wm. Hourigan for the property at 4047 Delmar and certified that the property was 'in the G commercial zoning to be used for Rooming House'; (2) that the certificate was issued pursuant to an application for a permit for occupancy filed by defendant Hourigan on October 10, 1957; (3) that on the same day, October 10, 1957, defendant Hourigan filed an application with the Board of Public Service, Department of Public Safety, for a permit to operate a rooming house in the mentioned premises at 4047 Delmar; (4) that an inspection was made of the property subsequent to the filing of the two applications; (5) that the inspection, on the application made to the Board of Public Safety, was made on May 12, 1958, by William E. McCullough, Inspector; (6) that on May 26, 1958, a notice was sent from the Building Commissioner's office to defendant Hourigan advising him of the result of the inspection of May 12, 1958, which notice set out certain conditions to be corrected in order to comply with the requirements of city ordinances governing rooming houses, and advised that certain items were to be corrected in 14 days and, if made, a recommendation for a permit to operate a rooming house would be made and applicant given 90 days to meet additional requirements of the ordinances as thereinafter set out; (7) that, thereafter, an inspection of the premises was made on October 1, 1958, and it appeared that the letter of May 26, 1958, had not been complied with, 'nothing done'; (8) that on October 24, 1958, defendant Hourigan was advised of the report of the inspection made on October 1, 1958, and notified that, if certain requirements of the ordinance were not satisfied within 14 days 'action will be taken to deny your permit,' other requirements to be met in 90 days were again set out; (9) that, thereafter, inspections of the premises were made on November 7, 1958, and on November 28, 1958, and a report filed by inspector McCullough showing that the letter of October 24, 1958, had not been complied with; (10) that on December 30, 1958, a request was sent by the Building Commissioner to defendant Hourigan requesting him to appear at the Building Commissioner's office on January 8, 1959, 'to show cause why a recommendation should not be made to the Board of Public Service to immediately deny your permit and the case referred to the City Counsellor for court action'; (11) that defendant Hourigan did not attend the mentioned hearing and, on January 15, 1958, the Building Commissioner made a report to the Board of Public Service that the application of defendant Hourigan to operate a Class 3 Rooming House at 4047 Delmar be refused because the 'establishment is not constructed and equipped as to comply with the provisions of Ordinance 48338' (the requirements not met were stated in detail in the report); and (12) that, thereafter, on January 20, 1959, the Board of Public Service denied defendant Hourigan's application for a permit to operate a Class 3 Rooming House at 4047 Delmar and notice was mailed to said defendant on January 23, 1959, and received by him on January 24, 1959. The notice contained a statement that defendant Hourigan could request a hearing, before the Board of Public Service if he made the request in 10 days from the date of the letter.

The foregoing evidence was offered by the City of St. Louis on the theory that it was 'attempting to show the court the background and justification for the inspection which gave rise to the right on the part of these inspectors to make such inspection'; that the building inspectors were performing a duty under the ordinances; and that there was a factual background for the inspection.

Thereafter, without objection, Robert Streator, Building Inspector in the Building Commissioner's office of said city, testified that on July 8, 1959, he ordered an inspector to visit the premises at 4047 Delmar to check on whether or not 'an occupancy permit ought to be issued.' On cross-examination, he admitted that such a permit had been issued, to wit: 'a Certificate of Occupancy,' indicating that no violation of the zoning regulations existed.

There was other evidence that, on July 8, 1959, about 11 o'clock a. m., William Branch, a Building Inspector for appellant city was directed by Robert Streator, his supervisor, to make an inspection of the building at 4047 Delmar. He immediately undertook to make said inspection. Branch was accompanied by William Perschbacher, another inspector, and they found 'a two and a half story building, fourth class construction, masonry, a porch on the front and an entrance to the side.' The front entrance was 10 feet off the sidewalk and the door was open. They entered the hallway and met defendant Evans who identified himself as janitor and caretaker. They identified themselves to him as 'City, building inspectors' by exhibiting their badges as such, and they advised him that they were there to inspect the building and he said 'all right.' They said they would start with the cellar first, and all went to the cellar, where Evans identified the unit there as his quarters. They then went to the first floor, rear unit, which they entered on the invitation of a Mrs. Thomas, who was in the unit. She stated that she occupied the unit as a tenant and they asked 'how much rent she paid' and asked for her rent receipts. At that time defendant Evans said he could not permit them to ask such questions, as it was none of their business, and that he would not permit any further inspection of the building without permission of the owner.

Inspector Branch testified that they were not then looking 'for any building code requirements in the premises,' but 'were just going through the building * * * just for the use of the building, occupancy of the building.' Mr. Branch testified: 'My job in going out there was to inspect the occupancy of the building, see about the occupancy, see what the...