City of St. Louis v. Friedman

• Decision Date: 13 December 1948
• Docket Number: 40717
• Parties: The City of St. Louis, a Municipal Corporation, Respondent, v. Ida Friedman, Appellant
• Court: Missouri Supreme Court

216 S.W.2d 475

358 Mo. 681

The City of St. Louis, a Municipal Corporation, Respondent, v. Ida Friedman, Appellant

No. 40717

Supreme Court of Missouri

December 13, 1948

Rehearing Denied January 7, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. F. E Williams, Judge.

Affirmed.

J. C Hopewell for appellant.

(1) The court was without jurisdiction to grant an injunction. The zoning ordinance is quasi criminal in its nature, is sanctioned by fine and contains within itself efficient means of enforcement but does not authorize enforcement by injunction. Respondent, therefore, had a full, complete and unembarrassed remedy at law in the manner pointed out in its ordinance. State ex rel. Crow v. Cantly, 207 Mo. 439, 105 S.W. 1078; Evans v. Roth, 356 Mo. 237, 201 S.W.2d 357; Kansas City Gunning Co. v. Kansas City, 240 Mo. 659; Stevens v. Myers, 73 S.W.2d 334; Thompson v. City of Malden, 118 S.W.2d 1059; Clark v. Crown Drug Co., 348 Mo. 91, 152 S.W.2d 145; Sec. 1683, R.S. 1939; 43 C.J.S., sec. 155, p. 967. (2) The court erred in not dismissing plaintiff's bill of complaint. Godefroy Mfg. Co. v. Lady Lennox Co., 134 S.W.2d 140. (3) The court exceeded its powers and its decree is invalid because the decree is not within the issues made by the pleadings and because it restrains and enjoins the use of property for lawful purposes. Branner v. Klaber, 330 Mo. 306, 49 S.W.2d 169; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9; Chouteau Trust Co. v. Massachusetts Bonding & Ins. Co., 1 F.2d 136. (4) The salvaging of used parts from wrecked and damaged automobiles and the keeping of wrecked and damaged automobiles on property in an industrial district is not a violation of the St. Louis zoning ordinance because it does not constitute a storage of scrap iron or junk. Grace Iron & Steel Corp. v. Ackerman, 123 N.J.L. 54, 7 A.2d 820; State v. Shapiro, 131 Md. 168, 101 A. 703; Carberry v. United States, 116 F. 773; Ex parte Scott, 130 Tex.App. 29, 91 S.W.2d 748. (5) That the St. Louis zoning ordinance, although valid in its general scope and application, as applied to appellant's particular piece of property, is unconstitutional in that it constitutes a taking of appellant's property without compensation under the guise of an exercise of the police power and is in violation of the Fourteenth Amendment of the Federal Constitution and a taking of appellant's property without due process of law under the Constitution of the State of Missouri. State ex rel. Penrose Inv. Co. v. McKelvey, 301 Mo. 1, 256 S.W. 474; St. Louis v. Evraiff, 301 Mo. 231, 256 S.W. 489; Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720; Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; Blencoe Lime & Cement Co. v. St. Louis, 341 Mo. 589, 108 S.W.2d 143; Women's Kansas City St. Andrew Society v. Kansas City, 58 F.2d 593; Village of University Heights v. Cleveland Jewish Orphan Home, 20 F.2d 743.

George L. Stemmler, City Counselor, Albert Miller and Francis M. Barnes III, Associate City Counselors, for respondent.

(1) Appellant-defendant's answer to plaintiff's petition, is not sufficiently definite to raise a constitutional question, and presents no constitutional question. It does not point out the provision alleged to have been violated. Hann v. Fitzgerald, 119 S.W.2d 808, 342 Mo. 1166; State ex rel. v. Bader, 78 S.W.2d 835, 336 Mo. 259; State ex rel. v. Flanigan, 159 S.W.2d 598, 349 Mo. 54; State ex rel. v. Kirby, 136 S.W.2d 319, 345 Mo. 801; State ex rel. v. Carey, 136 S.W.2d 324, 345 Mo. 811; State v. Lofton, 1 S.W.2d 830; City of Higginsville v. Alton R. Co., 237 Mo.App. 1204, 171 S.W.2d 795, citing State ex rel. v. Missouri Dental Board, 282 Mo. 292, 221 S.W. 70; City of St. Charles v. Union Electric Co. of Mo., 185 S.W.2d 297, and cases there cited; McGrath v. Meyers, 107 S.W.2d 792, 341 Mo. 412; Lohmeyer v. Cordage Co., 113 S.W. 1108, 214 Mo. 685. (2) No constitutional question having been raised, the Supreme Court has no jurisdiction over this appeal. Lohmeyer v. Cordage Co., supra. (3) There can no longer be any question of the constitutionality, in its general scope and purposes, of the St. Louis zoning ordinance. Landau v. Levin, 358 Mo. 77, 213 S.W.2d 483; State ex rel. Oliver Cadillac Co. v. Christopher, 298 S.W. 720, 317 Mo. 1179; Taylor v. Schlemmer, 183 S.W.2d 913, 353 Mo. 687. (4) The City of St. Louis, through its legislative body, was duly authorized and empowered to enact the zoning ordinances; and the enactment of such zoning ordinances and law were valid exercises of the police power. Secs. 7412, 7413, 7414, 7415, 7416, R.S. 1939; Wippler v. Hohn, 110 S.W.2d 409, 341 Mo. 780; State ex rel. Oliver Cadillac Co. v. Christopher, supra; Taylor v. Schlemmer, supra. (5) The power of equity to enjoin the doing of acts threatening irreparable injury to property rights or which would constitute a public nuisance is inherent and cannot be divested because the performance of such acts may be a violation of the criminal law. State ex rel. v. Woolfolk, 190 S.W. 877, 269 Mo. 389; Clark v. Crown Drug Co., 152 S.W.2d 145, 348 Mo. 91; State ex rel. v. Shain, 248 S.W. 591, 297 Mo. 369. (6) Metal, worn-out, obsolete, broken, and cut iron or dismantled machinery, and parts thereof, entirely unfit for original use and having no commercial value except for remelting purposes, or refuse iron which has been in actual use and is only fit for remanufacture without reference to whether it is new or old, may propertly be considered "scrap iron." United States ex rel. Sonken-Galamba Corp. v. M.-K.-T.R. Co., 21 F.Supp. 931, affirmed in Atchison, Topeka & Santa Fe Ry. Co. v. Sonken-Galamba Corp., 98 F.2d 457; Crancer v. United States, 23 F.Supp. 690; Sonken-Galamba Corp. v. Atchison, T. & S. Fe Ry. Co., 28 F.Supp. 456; Sonken-Galamba Corp. v. Union Pac. R. Co., 145 F.2d 808; Schlesinger v. Beard, 7 S.Ct. 546, 120 U.S. 264, 30 L.Ed. 656; Sheftel v. People, 111 Colo. 349, 141 P.2d 1018. (7) "Junk," in modern American usage, is an expressive term for trash, rubbish, discarded material, old iron, scrap iron, scrap metal, and other waste and valueless refuse, which may be treated so as to be used again in some form; old automobiles, wrecked, broken, torn-down and dismantled automobiles, and wrecked and dismantled automobile parts, automobile frames, fenders, radiators, batteries, tires, etc., that have outlived their usefulness in their original form. 13 Encyclopaedia Britannica (14th Ed.), pp. 186, 187; Webster's International Dictionary, Unabridged, 2nd Ed.; City of Watscha v. Blatt, 320 Ill.App. 191; City of Chicago v. Peterson, 282 Ill.App. 260; Weinstein v. City of Raleigh, 219 N.S. 643, 14 S.E.2d 661; 35 C.J. 127; 50 C.J.S. 702-703; City of St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870; Sec. 1362, Revised Code of St. Louis, 1936. (8) Defendant's use of her property constituted the storage of scrap iron and junk, within the meaning of subsection 52 of Section 166, Revised Code of St. Louis, 1936, providing that "in the industrial district all buildings and premises may be used for any purpose, except storage of scrap paper, iron, bottles, rags or junk." Subsec. 52, Sec. 166, Revised Code of St. Louis, 1936; Sec. 1367, Revised Code of St. Louis, 1936; And citation of authorities under numbers (6) and (7), Points and Authorities, this brief.

OPINION

Clark, J.

Defendant appeals from a decree of the circuit court enjoining her from using her real estate in a certain manner in violation of the city's zoning ordinance.

Respondent questions our jurisdiction, which appellant attempts to invoke on two grounds: (1) this is a civil suit in which one of the parties, City of St. Louis, is a political subdivision of the State; (2) the decree and the application of the zoning ordinance to the use of appellant's property violates appellant's constitutional rights by taking her property without just compensation and without due process of law as guaranteed by both the Federal and State constitutions.

St. Louis operates both as a city and as a county, but no county rights or functions are involved in this case. As a city it is not a political subdivision so as to give us jurisdiction of this appeal under Article V, Section 3, of the State constitution. [Superior Press Brick Co. v. City of St. Louis, (Mo.) 152 S.W.2d 178; Lovins v. City of St. Louis, 336 Mo. 1194, 84 S.W.2d 127.]

The petition filed by the city as plaintiff is long, but so far as we are concerned here it alleges: that defendant, operating under the name of Continental Auto Salvage Company, is using her property for storage of scrap iron and junk; that her property is situate in a portion of the city zoned as an industrial district where the ordinance provides the property may be used for any purpose except, among others, "storage of scrap paper, iron, bottles, rags or junk." Appellant's answer denied that she was using her property for storage of scrap iron or junk and, among other defenses, stated:

"Further answering, this defendant states that the said ordinance known as the Zoning Ordinance of the City of St. Louis, Missouri, so far as it involves the use of this defendant's property mentioned in plaintiff's petition, is unlawful, unconstitutional and invalid in that it is unreasonable and oppressive that it imposes restrictions upon the use of private property that have no relation to the health, safety, comfort or welfare of the inhabitants of the city; that it is an unlawful deprivation of the use of defendant's property without compensation or due process of law, a denial of the enjoyment of the gains of her own industry, and that the enactment of the ordinance is not within the powers delegated to the...