City of St. Louis v. Schnuckelberg
| Decision Date | 28 October 1879 |
| Citation | 7 Mo.App. 536 |
| Parties | CITY OF ST. LOUIS, Respondent, v. HERMAN SCHNUCKELBERG, Appellant. |
| Court | Missouri Court of Appeals |
Where an alleged nuisance is not so at common law, nor made so by statute or ordinance, but has been declared to be a nuisance by the Board of Health of the City of St. Louis, and ordered to be abated, under power to declare and abate nuisances granted by the city charter, the person violating the order of the board to abate may show that the thing declared to be a nuisance is not so in fact, the action of the Board of Health in such cases not being conclusive.
APPEAL from St. Louis Court of Criminal Correction.
Reversed and remanded.
LOUIS A. STEBER and JOHN MCGAFFEY, for appellant: Boards of health and city councils have power to condemn and order the removal of nuisances per se, or statutory nuisances, and in such cases their adjudication would simply follow the declaration of the common law or the statute.-- Bates v. Columbia, 1 McArthur, 433; Everett v. City, 46 Iowa, 67; Schuster v. Board, etc., 49 Barb. 452; City v. Stern, 3 Mo. App. 484. But until the fact of a nuisance is established by proof, it would be wrong to restrain a lawful calling, even if it does or might offend the senses of some.-- Ruff v. Phillips, 50 Ga. 133; Wood on Nuis. 13, sects. 6, 7. The declaration by the Board of Health that the thing complained of is a nuisance, is not conclusive and may be rebutted.-- Welch v. Stowell, 2 Dougl. (Mich.) 339; Yates v. Milwaukee, 10 Wall. 497; Hutton v. City, 39 N. J. L. 130; Darst v. The People, 51 Ill. 286; Clark v. Mayor, 13 Barb. 39; Coe v. Schultz, 47 Barb. 69; Underwood v. Green, 42 N. Y. 142; 1 Dill. on Mun. Corp., sect. 309; Wood on Nui., sect. 738.
LEVERETT BELL, SAMUEL ERSKINE, and DANIEL O'C. TRACY, for respondent: It is the function of the Board of Health to determine whether a given business is carried on in such a manner as to be detrimental to the public health, and trial by jury in such cases is not essential-- St. Louis v. Stern, 3 Mo. App. 48.
The appellant was tried and convicted in the Police Court, and in the court below on appeal, for refusing to comply with an order of the health commissioner of the city of St. Louis, which order commanded him, within fifteen days from its service upon him, to remove and discontinue the business of a dairy which he had carried on in the city. He had previously been notified to appear before the Board of Health, under the provisions of the ordinance given below; but failing to show cause, his dairy had been condemned as a nuisance by the board, upon which the above order issued.
By art. 12 of the present city charter, a health department is established for the city of St. Louis, the office of health commissioner and a board of health are established, and among other things it is provided that the health commissioner “shall have general supervision over the public health of said city, and see that its regulations, and the laws and ordinances of said city in relation thereto, are enforced and observed; * * * to declare and abate nuisances in such a manner as may be provided herein, or by ordinance; but all condemnations must first be approved by the Board of Health, whose action thereon shall be final.” * * *
“. This section then provides for service of notice, and that if after said service on him the owner shall fail to show good cause to the health commissioner, he shall be deemed guilty of a misdemeanor and fined, and the nuisance shall be abated, and special tax-bills rendered against his property for the cost of such abatement.
By sect. 26 of art. 3 of the charter, the mayor and Assembly have power by ordinance “to prohibit the erection of * * * cow-stables and dairies * * * within prescribed limits, and to remove and regulate the same; and to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health; * * * and to declare, prevent and abate nuisances on public or private property, and the causes thereof.”
No ordinance as to cow-stables or dairies was given in evidence. By city ordinance numbered 10358, entitled “An ordinance providing for the abatement of nuisances,” etc., it is provided that it shall be the duty of the Board of Health, whenever the health commissioner officially notifies the board that any business, trade, or profession carried on by any person in the city is detrimental to public health, to notify such person to show cause before the board, at a time and place to be specified in the notice, why the same shall not be abated, discontinued, etc., which notice is to be served at least five days before the time specified therein...
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City of Hannibal v. Richards
...69 Mo. 109. The appellant had the right to show that the health of the city did not require the filling of the lots. City of St. Louis v. Schnuckelberg, 7 Mo. App. 536. This the appellant did not attempt to do. He only proposed to prove “that no person's health was ever injured by said cond......
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