City of St. Louis v. Nash

• Decision Date: 07 April 1924
• Docket Number: No. 23965/12.,23965/12.
• Citation: 260 S.W. 985
• Parties: CITY OF ST. LOUIS v. NASH.
• Court: Missouri Supreme Court

260 S.W. 985

CITY OF ST. LOUIS v. NASH.

No. 23965/12.

Supreme Court of Missouri, Division No. 1.

April 7, 1924.

Error to St. Louis Court of Criminal Correction; Anthony Hochdoerfer, Judge.

Action by the City of St. Louis against Charles M. Nash. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

George P. Raid and Charles J. Dolan, both of St. Louis, for plaintiff in error.

Statement.

WOODSON, J.

The city instituted this action against the defendant in city court No. 2 to recover the penalty prescribed by sections 1786 and 1787 of Revised Code of the city of St. Louis for 1914. Those sections were set out in full in the complaint. Briefly they provide for the removal of privy vaults and substitution therefor of modern water closets where possible in the city.

The case was subsequently appealed to the court of criminal correction. Upon a trial the defendant was acquitted, and the city sued out a writ of error to this court.

The city presented evidence showing failure and refusal on the part of the defendant to comply with the ordinance, which evidence was admitted without any objection on the part of the defendant. It was shown to the court that for a period of two or three years he had maintained on his premises at 900-908 Biddle street, in the city of St. Louis, a privy vault consisting of three stories, one for each floor of a three-story building, without any mechanical means of flushing and cleaning, the only possible way of flushing it being by taking a hose up to the third floor. It was also shown to the court that there was a city sewer in front of defendant's premises, and one in the rear in the a Uey, with either of which connection was possible. The ordinance was offered in evidence by the city.

The defendant offered no evidence, but at the close of the city's case, filed a demurrer to the evidence as follows (omitting caption):

"Now comes the defendant, Charles M. Sash, in the above-entitled cause and demurs to the testimony introduced by the city of St. Louis, Mo., for the reason, said testimony is insufficient to convict the defendant of the offense charged against him."

The court sustained the demurrer as previously stated, and discharged the defendant, and, after having unsuccessfully moved for a new trial, the city prosecuted this writ of error.

Opinion.

I. The charter power of the city has all the sanction of a legislative enactment by the Legislature. Ex Parte Smith, 231 Mo. loc. cit. 122, 132 S. W. 607.

II. The ordinance introduced in evidence is clearly within the charter power of the city. Charter of the City of St. Louis, art. I, § clauses 29, 19, 25, 33, and 34.

III. We have often held that the state has delegated to municipal corporations the police power to be exercised in the preservation of the health, safety, welfare, and comfort of the citizens. Ex Parte Lerner, 281 Mo. loc. cit. 25, 218 S. W. 331.

IV. It is a proper and constitutional exercise of the police power of the state for the protection of the public (health to require privy vaults to be removed and replaced by water closets. Dillon, " on Mun. Corp. (5th Ed.) § 698, 1071; Tenement House Dept. v. Moeschen, 179 N. Y. 325, 72 N. E. 231, 70 L. R. A. 704, 103 Am. St. Rep. 910, 1 Ann. Cas. 439; Harrington v. Providence, ...