City of St. Louis v. Stern

• Decision Date: 14 November 1876
• Citation: 3 Mo.App. 48
• Parties: CITY OF ST. LOUIS, Respondent, v. LEVI STERN et al., Appellants.
• Court: Missouri Court of Appeals

3 Mo.App. 48

CITY OF ST. LOUIS, Respondent, v. LEVI STERN et al., Appellants.

Court of Appeals of Missouri, St. Louis.

November 14, 1876

1. A city ordinance, passed in pursuance of a charter authority is not necessarily invalid because it omits some of the details of method or procedure mentioned in the charter.

2. It is competent for the General Assembly to invest the authorities of a municipal corporation with power to preserve the public health, and to prevent or abate nuisances; and where the subject-matter of an adjudication of nuisance by such authorities is a primâ -facie nuisance or a nuisance per se, such adjudication is conclusive.

3. Trial by jury is not essential, on constitutional grounds, to a method of ascertaining the existence of a nuisance.

4. When a business officially declared to be a nuisance has been discontinued, the owner of the property used in such business is not entitled to compensation therefor as for property taken for public use.

APPEAL from St. Louis Court of Criminal Correction.

Affirmed.

Jecko & Hospes, for appellants, cited: Welsh v Stowell, 2 Dougl. (Mich.) 332; Coe v. Schulz, 47 Barb. 64; Dill. on Mun. Corp., sec. 308; Yates v. City of Milwaukee, 10 Wall. 497; Underwood v. Green, 42 N.Y. 140; Mayor, etc., of Hudson v. Thorne, 7 Paige 261; Wood's Law of Nuis., secs. 739-741, and notes; Rev. Ord. 1871, p. 69, sec. 1.

Vernon W. Knapp, for respondent, cited: Rev. Chart., art. 1, secs. 12, 13; Dill. on Mun. Corp. 209, 210, sec. 93, p. 451, sec. 361, p. 456, sec. 367; The Commonwealth v. Van Sickle, Bright. 69.

OPINION

LEWIS J.

On March 9, 1876, the Board of Health of the city of St. Louis declared officially upon its record that the hog-pens of defendants, situated on the north side of Laclede Avenue, between Beaumont Street and Leffingwell Avenue, were a nuisance, and detrimental to the public health. Defendants were thereupon notified to show cause before the board, on March 16th, why the nuisance should not be discontinued or removed. Defendant Stern appeared before the board on the 16th, and was heard, whereupon the case was laid over for one week. On March 23d, the defendants failing to appear, several witnesses, " residents of the neighborhood, testified to the hog-pens being an almost unbearable nuisance," and the board adopted a resolution whereby the defendants were " ordered to abate the said nuisance by ceasing to carry on the business of keeping hogs in said locality, and removing said hog-pens outside of the jurisdiction of this board within five days after receiving due notification of this order." On May 18, 1876, the city attorney filed in the St. Louis Police Court a complaint against defendants, for violation of " An ordinance in revision of the ordinances of the city of St. Louis, and for the government of said city, chapter 12, article 1, sections 12 and 13, approved March 31st, 1871." They were thus charged with having failed, neglected, and refused, for more than five days, to comply with the order of the Board of Health above mentioned. Defendants were tried before a jury in the Police Court, found guilty, and fined $20 and costs. They appealed to the Court of Criminal Correction, where they were again convicted, and fined $50 and costs.

Exceptions were saved to a number of rulings in the courts below, concerning the service of process and the admissibility of testimony; but all such are here waived by counsel, except in so far as they may bear upon two questions, to which our attention will be confined: 1. Is the ordinance under which the defendants were convicted valid? 2. Does its true interpretation, if valid, justify the conviction?

The material provisions of the ordinance in question are as follows:

" It shall be the duty of the Board of Health, on complaint being made to it, or whenever it shall deem any trade, business, or profession, carried on by any person or persons, or corporations, in the city of St. Louis, detrimental to the public health, to notify such person or persons, or corporations, to show cause before the Board of Health, at a time and place to be specified in such notice, why the same should not be discontinued or removed. * * * Upon the summoning of the parties to appear before the Board of Health, cause may be shown by affidavit, or the parties may appear in their own person, or by attorney, and if, in the opinion of the Board of Health, no good and sufficient cause be shown why the said business, trade, or profession should not be discontinued or removed, the said board shall order the said parties to discontinue or remove the same within such time as the board may deem reasonable and necessary. * * *

Sec. 13. Any person or persons failing or refusing to obey such order of said Board of Health shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty nor more than two hundred and fifty dollars; and such person or persons shall be subject to like fine for each and every day he, she, or they shall continue such business, trade, or profession after the expiration of the time specified in the order of the Board of Health for the removal or discontinuance of the same."

As to the validity of these provisions by city ordinance, it must first be determined whether the power to enact them was conferred in the municipal charter of St. Louis.

The Revised City Charter of 1870 declares, in article 3, that " the mayor and City Council shall have power, within the city, by ordinance not inconsistent with any law of the State, * * * to make all needful regulations to secure the general health of the inhabitants; * * * to prevent or abate all nuisances on public or private property; * * * to regulate and prevent the carrying on of any business or factory, if detrimental to the public health. * * * To impose, collect, and enforce fines, forfeitures, and penalties for the breach of any city ordinance."

By article 9 the Board of Health is created, and is empowered to " have general supervision over the public health of said city; * * * to declare and abate nuisances in such manner as may be provided by ordinance; and to adopt such measures and make such orders for the cleansing or purifying of any place, or the abatement or removal of any nuisance, as they may deem proper or necessary."

Section 4 provides: " In order to effect the abatement of nuisances or removal of accumulated filth, the Board of Health shall have power, whenever, in their opinion, such nuisance or filth exists, and after officially so declared of record, to notify the owner or owners thereof to abate or remove the same, either by filling up, draining, cleaning purifying, or removing the same, as the case may be, which notice shall be served upon the owner or agent having charge of such property in the same manner as writs of summons are required to be served in civil cases. If the owner who shall have been so served...