City of St. Louis v. Atlantic Quarry & Construction Co.

• Decision Date: 29 June 1912
• Citation: 148 S.W. 948
• Court: Missouri Supreme Court
• Parties: CITY OF ST. LOUIS v. ATLANTIC QUARRY & CONSTRUCTION CO.

148 S.W. 948

CITY OF ST. LOUIS v. ATLANTIC QUARRY & CONSTRUCTION CO.

Supreme Court of Missouri, Division No. 1.

June 29, 1912.

1. MUNICIPAL CORPORATIONS (§ 60) — ORGANIZATION—POWERS.

Municipal corporations are creatures of statute, and the charter of the city of St. Louis being founded on the express provisions of the Constitution, its municipal assembly which was created under the authority of Const. art. 9, § 20, providing for a house of legislation, is a legislative assembly.

2. NUISANCE (§ 3)—EVIDENCE (§ 5)—WHAT CONSTITUTES—QUARRIES.

A stone quarry, though operated in a city, is not a nuisance per se; the courts taking judicial notice of the necessity for underground excavations in great cities.

3. MUNICIPAL CORPORATIONS (§ 622)—POWERS —QUARRIES—LICENSE—"REGULATE."

St. Louis charter, art. 3, § 26, cl. 6, delegates to the mayor and municipal assembly the power to regulate hospitals, to regulate stone quarries, and the slaughter of animals, provide for the erection, management, and regulation of slaughterhouses, prevent the driving of stock through the city, prohibit the erection of soap factories, stockyards, and slaughterhouses, and to remove and regulate the same. Held, that the power to regulate did not give the municipality the power to prohibit the quarrying of stone; the word "regulate" implying the continued existence of the subject-matter to be controlled, and so an ordinance prohibiting the operation of stone quarries, without permission from the municipal assembly by proper ordinance, is invalid, for the granting of the permission rests in the arbitrary discretion of that body, and such business may be improperly prohibited.

4. MUNICIPAL CORPORATIONS (§ 111)—SPECIAL LEGISLATION.

The municipal assembly of St. Louis being a legislative body, the inhibitions of Const. art. 4, § 53, prohibiting the General Assembly from passing any local or special law granting to any corporation, association, or individual any special or exclusive privilege or immunity, apply to its ordinances, and so an ordinance prohibiting the operation of a stone quarry without permission from the municipal assembly by proper ordinance is invalid because such permission is not applicable to all citizens bringing themselves within the class, but is special permission granted to particular individuals.

Appeal from St. Louis Court of Criminal Correction; H. N. Moore, Judge.

Prosecution by the City of St. Louis against the Atlantic Quarry & Construction Company. From a judgment of the police court in favor of plaintiff, defendant appealed to the court of criminal correction, and from a judgment there for plaintiff, defendant again appealed. Reversed.

This cause was instituted in the First district police court of the city of St. Louis, August 15, 1905, by filing the following statement: "Atlantic Quarry & Construction Co., a Corporation, to the City of St. Louis, Dr.—To five hundred no/100 dollars, for the violation of an ordinance of said city, entitled `An ordinance in revision of the general ordinances of the city of St. Louis,' being ordinance number 19,991, section 615, approved April 3, 1900, in this, to wit: In the city of St. Louis, and state of Missouri, on the 8th day of August, 1905, and on divers other days and times prior thereto, the said Atlantic Quarry & Construction Company a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, did then and there operate, carry on and work a stone quarry on a lot of ground situated at the southwest corner of Bernard street and Montrose avenue, in the city of St. Louis, Mo., without permission to do so having been first obtained from the municipal assembly of said city by proper ordinance. It is further alleged that the said stone quarry was not operated, carried on or worked at the time of the approval of the aforesaid section 615 of ordinance 19,991 of said city of St. Louis, Mo. Contrary to the ordinance in such case made and provided. On information of Arthur Ryan. Thos. Anderson, City Attorney of the City of St. Louis."

A judgment for $100 was appealed to the St. Louis court of criminal correction, where a trial resulted in a verdict and judgment for the same amount, which is brought here by appeal. The ordinance mentioned in the statement is as follows: "It shall not be lawful for any person, company of persons, firm or corporation, to work a stone quarry or to operate, conduct or carry on a brick kiln, or a soap factory, or a slaughterhouse, or a garbage works, or a bone factory, or a rendering factory, or a livery stable, or a vitriol factory, or a tannery, or candle works in any building or on any lot of ground in the city without permission to do so has been first obtained from the municipal assembly by a proper ordinance, nor shall any existing house, shed or structure be used, altered, changed, removed or repaired so as to establish, conduct, open, carry on or maintain any such business or occupation therein without similar authority. Any person, company of persons, firm or corporation violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred nor more than five hundred dollars for each and every day such stone quarry, brick kiln, soap factory, slaughterhouse, garbage works, bone factory, rendering factory, livery stable, vitriol factory, tannery or candle works is worked, operated or carried on without the authority of the municipal assembly so to do by proper ordinance: Provided, however, that nothing in this section shall be deemed to apply to any person or company of persons, firm or corporation who shall at the time of the passage of this section be operating or carrying on a stone quarry, or a brick kiln, or soap factory, or slaughterhouse, or garbage works, or bone factory, or rendering factory, or livery stable, or vitriol factory, or tannery, or candle works, at or in the premises occupied by them at the time of the passage of this section."

The testimony tended to show that the defendant, at the time charged, was doing the work complained of for the Terminal Railroad Association of St. Louis, as assignee of Louis Skrainka and Michael Hanick, in pursuance of a contract in writing between the said association as party of the first part and the said Skrainka and Hanick as party of the second part, the material portion of which is as follows: "That in consideration of the payments and covenants hereinafter mentioned, to be made and performed by said party of the first part, the said parties of the second part hereby agree to execute the following described work, to wit: Any or all the necessary rock excavation on city blocks numbered 2550, 2551, 2552, 2237, 2238, 2239, 2240 and part of block 2553, of the city of St. Louis and adjacent streets within these blocks; said excavation to be made to an established grade as directed by the engineer of the railroad company or its representative, and the work to be done in such manner and at such points as the engineer of the railroad company or its representative may direct. The party of the first part agrees to remove all the earth excavation above the rock. The party of the first part reserves the right as to how much of the rock the second party may excavate. The party of the second part agrees to deliver to the party of the first part all of said rock, or such portion thereof as party of the first part may demand during the time of excavation, in the form of riprap and macadam at $2.25 per square of 100 cu. ft. for riprap f. o. b. cars at quarry tracks and $2.50 per square of 100 ft. for macadam f. o. b. cars quarry track. The party of the second part further agrees to satisfy the daily demand of the party of the first part not to exceed ____ squares per day. It is understood that the meaning of this contract is to insure the excavation to a grade of solid rock located on city blocks mentioned. All work to be performed in a thorough workmanlike manner and with such despatch as may be required by the party of the first part."

The work consisted in reducing the land to the proper level for the tracks of the Terminal Association by removing the material consisting of "strippings" and solid rock, to a depth of from a few inches to 20 feet, and also removing solid rock below the grade so as to make a hole in which to put the "strippings," which would otherwise have had to be moved, at great cost, to a dumping ground at East St. Louis. At the time this proceeding was instituted, a hole had been excavated about 250 feet long, 80 feet wide and 70 odd feet deep. The rock to be moved was broken and crushed on the ground, to be used as provided in the contract. The work was done under the supervision of the engineer of the Terminal Association. The title to the land is in a trustee for the Terminal Association, which is in possession.

The defendant requested the following instruction, among others: "The court declares the law to be that, if the Terminal Railroad Association at the time mentioned in the complaint herein was owner of the property described in the complaint herein, and as such owner made and entered into the contract in writing with Hanick and Skrainka which was read in evidence, and that all the work of excavating was done under and by virtue and authority of said contract, then the defendant is not guilty of a violation of section 615 of the Revised Ordinances of the city of St. Louis." It was refused, and defendant excepted.

During the trial, and in its motion for a new trial, the defendant insisted upon the several constitutional questions suggested in this opinion.

David Goldsmith, for appellant. L. E. Walther and ...