Engelage v. City of Warrenton

• Decision Date: 18 September 2012
• Docket Number: No. ED 97965.,ED 97965.
• Citation: 378 S.W.3d 410
• Parties: Arden ENGELAGE, Hubert Kluesner, and Dan Hampson, Commissioners of Warren County, Missouri, Appellants, v. CITY OF WARRENTON, Missouri, Respondent.
• Court: Missouri Court of Appeals

378 S.W.3d 410

Arden ENGELAGE, Hubert Kluesner, and Dan Hampson, Commissioners of Warren County, Missouri, Appellants,
v.
CITY OF WARRENTON, Missouri, Respondent.

No. ED 97965.

Missouri Court of Appeals,
Eastern District,
Division Four.

Sept. 18, 2012.

[378 S.W.3d 411]

Kent Munson, St. Louis, MO, for appellants.

Daniel G. Vogel, Erin P. Steele, Christopher B. Graville, Chesterfield, MO, for respondent.

Joseph G. Lauber, Lee's Summit, MO, Ivan L. Schraeder, St. Louis, MO, Amici Curiae.

LAWRENCE E. MOONEY, Presiding Judge.

May the City of Warrenton, in the exercise of its police powers, require Warren County to comply with city building codes in the construction of the county's new administration building within the city limits? We hold that the city may, and thus affirm summary judgment entered in favor of the city.

Factual and Procedural Background

Two political subdivisions of the state find themselves at loggerheads. Warren County is a county of the third class in the State of Missouri; the City of Warrenton is a city of the fourth class, wholly located within the boundaries of Warren County. Each claims superior rights in the delegation of governmental power from the state. The county, with statutory authority to build a building, contends it may do so virtually unfettered. The county posits that the city's authority is limited to regulating the erection and maintenance of hitching posts, sidewalks, guttering, curbing, and the other street-related improvements listed in Section 88.743 of Missouri's Revised Statutes.¹ The city, on the other hand, contends it has authority to regulate all of the county's construction activities by virtue of the city's police power.

The essential facts leading to this dispute are few and undisputed. Warren County decided to build a new county administration building on property located within the city limits of the City of Warrenton.² The city has enacted building

[378 S.W.3d 412]

code ordinances requiring building permits for the construction of buildings in the city. The city charges certain fees in connection with these various permits. The county had constructed other buildings within the city limits in the past, dating back to at least 1995. On at least six of those occasions, the county had applied for building permits, and had paid the associated fees, without protest or claim of preemption.

In 2009, when the county learned of the city's plan, the city notified the county that, pursuant to the city code, the county must obtain and pay for various building permits from the city before commencing construction of the new administrative building. The county objected, informing the city that it would not be applying for or obtaining a building permit because it was not legally required to do so. The parties then exchanged a series of communications. The city asked the county to provide authority for its position and to clarify its change in position from what the city described as a mutual understanding between the city and the county, whereby the county had agreed that the city, in the exercise of its police powers, had the authority to require the county to submit an application for a building permit and to pay the appropriate fees. The city indicated a willingness to resolve any misunderstandings, but also expressly noted that it intended to exercise its police powers to ensure the safety and general welfare of its citizens. In response, the county cited Section 88.743 and admitted it needed a permit for the street-related improvements listed in that statutory section. But the county asserted that the city had no authority to require an application for a building permit from the county for any other construction related to the building. Continuing, the county stated that, even though it was not required to obtain or pay for a building permit for construction of any improvements not listed in Section 88.743, it was willing to apply for a building permit in order to maintain the good relationship that had previously existed between the city and the county. The county re-emphasized, however, that it would not pay any fees for this permit other than those required by Section 88.743. Unwavering, the city again informed the county that it must obtain and pay for all the required building permits. The city also informed the county of the sanctions for failure to comply with the city code.³

Without applying for or obtaining any permits, the county commenced construction by having its contractor mobilize its equipment at the site and begin to grade the building site. The city building inspector went to the site on October 15, 2010, and issued a stop-work order because the county had begun construction and grading in violation of the city's building and safety code. The inspector returned to the site a few hours later and the county had not ceased construction, in violation of the stop-work order. The inspector informed the contractor and county commissioner Engelage, who was on-site, that construction must be stopped. The inspector returned to the site a third time to find that the county had still refused to stop construction activity. At this time, the inspector issued a municipal ordinance violation citation to the contractor, for violating the city's building and construction codes.

[378 S.W.3d 413]

The county stopped construction, and submitted building permit applications and grading plans to the city. The county also paid for the various building permits required by the city, but did so under protest. The city reviewed the applications and issued permits, and the county re-commenced construction of its new building.⁴

The county did not appeal to the city's building board, but instead filed the instant declaratory-judgment action in the circuit court.⁵ The parties then each submitted motions for summary judgment based on their respective positions. The trial court entered judgment in favor of the city, and the county now appeals that decision.

Standard of Review

We review the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id.; Rule 74.04.

Discussion

We shall resolve the conflict between the two protagonists by examining the legislature's delegation of powers to each. Local governments, such as the county and city here, possess only those powers expressly delegated by the sovereign, and those necessarily or fairly implied in or incident to the powers expressly granted. Premium Standard Farms, Inc. v. Lincoln Tp. of Putnam County, 946 S.W.2d 234, 238 (Mo. banc 1997) (discussing general principle of law); Christian County v. Edward D. Jones and Co., L.P., 200 S.W.3d 524, 527 (Mo. banc 2006) (counties); City of Kirkwood v. City of Sunset Hills, 589 S.W.2d 31, 35–36 (Mo.App. E.D.1979) (municipal corporations).

When confronting adverse claims of two governmental units, each claiming to have the superior power, the court must construe the provisions delegating power together and harmonize them if reasonably possible to do so. Kirkwood, 589 S.W.2d at 42;see also Appelbaum v. St. Louis County, 451 S.W.2d 107, 112–13 (Mo.1970). Courts shall ascertain the intent of the legislature from the plain and ordinary meaning of the language used and to give effect to that intent, if possible. Bd. of Educ. of the School Dist. of Springfield R–12 v. City of Springfield, 174 S.W.3d 653, 660–661;Devitre v. Orthopedic Center of St. Louis, LLC, 349 S.W.3d 327, 331 (Mo. banc 2011).

[378 S.W.3d 414]

We therefore turn to these delegations of power. The county relies on Chapter 49 of Missouri's Revised Statutes, which pertains to county commissions and county buildings. The county asserts the chapter contains a plenary grant of authority to build a county building. In particular, the county relies on two sections of that chapter—Sections 49.270 and 49.470. Section 49.270 states, in part, that the county commission “shall have control and management of the property, real and personal, belonging to the county....” ⁶Section 49.470 provides, in part, that the county commission has the power “to build any county buildings....” ⁷ The legislature penned the delegation of power in broad terms. Possessing such authority, however, does not mean it cannot be limited or otherwise regulated. Springfield, 174 S.W.3d at 660.

The city relies on its police powers. Police power is “the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society.” State ex rel. Rouveyrol v. Donnelly, 365 Mo. 686, 285 S.W.2d 669, 674 (1956) (citing 16 C.J.S. Constitutional Law, § 174, p. 537). “The function of police power is to preserve the health, welfare and safety of the people by regulating all threats harmful to the public interest.” State v. Richard, 298 S.W.3d 529, 532 (Mo. banc 2009). Preservation of the public health is a paramount end of the exercise of the police power of the state. Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 507 (Mo. banc 1991); Craig v. City of Macon, 543 S.W.2d 772 (Mo.1976); City of Kansas City v. Jordan, 174 S.W.3d 25, 41 (Mo.App. W.D.2005).

A city has no inherent police power. State ex rel. Sims v. Eckhardt, 322 S.W.2d 903, 906 (Mo.1959); Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70, 73 (1949); Jordan, 174 S.W.3d at 41. “Exercise of the police power is a governmental function, the control of which remains in the state.” Tietjens, 222 S.W.2d at 73. The only police power a city enjoys is that conferred to it by the state. Jordan, 174 S.W.3d at 41. A city's authority to exercise police power must come from a specific delegation by the state or in some cases from the express or fairly implied powers of its charter. Tietjens,...