City of St. Louis v. Nash

• Decision Date: 06 January 1916
• Citation: 181 S.W. 1145,266 Mo. 523
• Parties: CITY OF ST. LOUIS, Plaintiff in Error, v. NICHOLAS NASH
• Court: Missouri Supreme Court

181 S.W. 1145

266 Mo. 523

CITY OF ST. LOUIS, Plaintiff in Error, v. NICHOLAS NASH

Supreme Court of Missouri, Second Division

January 6, 1916

Error to St. Louis City Court of Criminal Correction. -- Hon Benjamin F. Clark, Judge.

Reversed and remanded (with directions).

William E. Baird and Truman P. Young for plaintiff in error.

The structure erected by the defendant is a building within the definition of the Building Code of the city of St. Louis and within the general legal interpretation placed upon the word "building." Revised Code of St. Louis, sec. 336; Blakemore v. Stanley, 33 N.E. 689; Nowell v Boston Academy, 130 Mass. 209; Killman v State, 28 Am. Rep. 432; Favre v. State, 73 Am. St. 953; Williams v. State, 70 Am. St. 82; Kansas v. Poole, 65 Kan. 713; People v. Steckman, 34 Cal. 242.

Taylor R. Young and Edward W. Forristel for defendant in error.

(1) Sections 341 and 505, R. O. City of St. Louis 1912, were never intended to prevent the erection and maintenance of a tent, such as the evidence in this case shows the defendant was erecting at the time he was charged with violating said sections. Childress Seashore v. Atlantic City, 59 L. R. A. (N. J.) 947; Coddington v. Beebe, 31 N. J. L. 477; Allen v. Ayre, 3 Dow & R. 96; Trust Co. v. Cameron I. & C. Co., 47 F. 136; Callahan v. State, 41 Tex. 43; State v. Barr, 39 Conn. 44; Rouse v. Catskill, 13 N.Y.S. 123-127; Tuesdell v. Gray, 79 Mass. 311; Hawaii v. Manchiki, 190 U.S. 197; Century Dictionary, pp. 712, 6234; Bouvier's Law Dictionary, p. 268; 1 Oxford's Dictionary, p. 1162; Anderson's Law Dictionary, p. 139; 6 Cyc. 115 (2) Even though said sections were intended to apply, they are so unreasonable as to be void under the decisions of this court. Kelley v. Meeks, 87 Mo. 396; Corrigan v. Gage, 68 Mo. 541; St. Louis v. Weber, 44 Mo. 547; Tarkio v. Cook, 120 Mo. 1. (3) The Municipal Assembly of the city of St. Louis, has no power to prevent by ordinance the use of property so as to prevent a tent of the character in question here from being constructed upon and operated in connection with the use of such property. Clause 12, sec. 26, art. 3, Charter, City of St. Louis.

OPINION

FARIS, P. J.

This is a case growing out of the prosecution of defendant in error for an alleged violation of an ordinance of the city of St. Louis. Being cast in the police court and likewise in the Court of Criminal Correction to which it appealed, the city brings the case here by writ of error. Since, throughout, no change has occurred in the parties, we will for clarity's sake refer to them as the plaintiff and the defendant, respectively.

The section of the city ordinances which the complaint alleges that defendant violated, reads thus:

"Sec. 341. No fourth-class buildings shall here-after be built within the district known as the fire limits, as hereafter defined, except such buildings as are provided for in sections 342 and 343 of this article." (Here follows a description of the fire limits.)

When the case reached the Court of Criminal Correction a motion to quash the complaint was filed by defendant, but action thereon was deferred by the learned judge nisi till he had heard the case on the merits. Thereupon the case was presented below upon agreed facts, which the court heard and thereafter entered an order quashing the complaint. Therefore, though we follow the language of the court nisi in stating that the motion to quash was sustained, it is plain that the case was actually heard and decided on the merits.

The agreed facts are lengthy; but since in the view we take of the controversy, alone, the method of the construction and physical nature of the structure erected and used by defendant is important, we will not burden the statement of the case with more of the facts than will but suffice to illuminate this single point. Specifically, defendant was prosecuted for erecting and using as a moving-picture theatre, a certain structure which plaintiff contends violated the provisions of the section of the city ordinances which we quote above. The erection and use of the structure within the fire-limits were admitted. It is therefore manifest that the whole case turns on the nature of the structure so erected by defendant. The agreed facts thus describe the materials of which it was constructed, the manner of construction thereof and the purposes for which it was used, viz.:

"Said shelter or structure is ninety-seven feet in length and fifty-eight feet in width, and has a height along the center of thirty feet, and a height along the sides, between the ground and the eaves, of eight feet. It is supported by two telegraph poles fourteen inches in diameter firmly set in the ground, one at the front end, facing Jefferson Avenue, on the inside, about ten feet west of the entrance, and in the center thereof. The other on the outside and west of the west end thereof. Said telegraph poles are thirty-five feet high and between them is stretched a wire cable an inch and a half or two inches in diameter. To said cable are attached ropes which extend down to the top of the canvas cover and support the same. Also at intervals of eight feet, ropes extend down from the center of the top of the cover of said shelter or structure to the sides and bottom thereof, and most of them are connected with wooden posts securely driven in the ground and which are located about ten feet outside of the canvas cover, which keeps the covering taut. There are thirty of said poles upon each side of said shelter or structure, one-half of which are eight feet in height and the remainder twelve feet in height. Said poles are about three and one-half inches in diameter, and in the center of the top thereof is an iron peg securely driven therein, about one-half inch in diameter and eight inches in length and which projects above the top of the said pole about five inches. The canvas covering is composed of 12-ounce Army Duck Canvas. At the front end of said shelter or structure two wire cables or guy cables extend from the top of the front telegraph pole, one to the northeast corner of the lot upon which said shelter stands, and the other to the southeast corner. Said cables are attached to posts firmly embedded in the ground fifteen feet outside of said shelter. At the rear end of said structure or shelter are three guy cables which extend from the top of the telegraph pole at the rear of said structure to posts firmly embedded in the ground, one of them at the northwest corner of the lot upon which said shelter or structure is located, another at the south-west corner and another at the west and near the center of the west end of said lot. The front and rear ends of said shelter or structure are supported by two poles, eighteen feet high, at each end thereof, which support the canvas cover at a point fifteen feet from the top of the cover on each side and at the end thereof. At the rear end of said shelter or structure is located a stage or platform, built of wood, upon each side of which are wings or dressing rooms composed partly of wood and partly of canvas. Inside of said structure or shelter are rows or tiers of seats in bench form. Between said rows of seats there is one aisle down the center six feet wide, and on each side of said shelter or structure there is also an aisle eight feet wide. There are sixty-four benches, each of which will seat ten people, so that said shelter or structure has a seating capacity of six hundred and forty persons. The said shelter or structure is equipped with electric lights set in iron conduit for lighting in the evening, and the stage or platform is also equipped with electric footlights set in conduit. Said shelter or structure is constructed in such a way that the sides can be raised up in the summer time and lowered in the winter time, and in the winter time the said sides are lowered, and at all places, except exits, when the sides are lowered, are banked along the outside with earth sufficient to shut out drafts. Said shelter or structure is equipped with four so-called cannon, or heavy cylindrical, stoves for heating, one stove being placed in each corner thereof, and the stovepipe goes out through a hole in the side, which is fortified with asbestos and tin, and projects ten feet outside of the canvas cover. The floor of said structure or shelter is of earth and cinders, except that in front of each seat there is a board plank eight inches wide upon which the audience rest their feet. And in each aisle there is a board walk eight feet wide composed of one by two boards laid flat on the ground and nailed to cross pieces sunk in the ground. And between the ticket office and the east side of said shelter or structure are also similar boards laid in like manner. The seats are built of wood, in the form of benches. Along the street line or entrance to the lot upon which said shelter or structure stands is a series of door panels, composed of wood and glass, and consisting of eight such door panels. Six of said panels swing on hinges, and may be opened for the admission or exit of persons. Immediately inside of said outside entrance is an open space of ten feet where there exist two brick columns with wood jambs upon which two swinging doors are hung, composed of wood with glass windows, about seven feet in width and eight feet high. Between the two entrances there is a booth made of wood seven feet high and in the shape of a half moon, and is located outside of the shelter or structure. After passing through said inside entrance doors the audience are admitted into a small corridor or chamber, with a canvas cover, with canvas sides, which leads through a canvas curtain directly into the main auditorium. In the summer time these doors and the corridor are done away...