Hernreich v. Quinn

• Decision Date: 01 March 1943
• Docket Number: 38056
• Citation: 168 S.W.2d 1054,350 Mo. 770
• Parties: Ex Parte Irving Hernreich, Petitioner, v. Thomas H. Quinn, Sheriff
• Court: Missouri Supreme Court

168 S.W.2d 1054

350 Mo. 770

Ex Parte Irving Hernreich, Petitioner, v. Thomas H. Quinn, Sheriff

No. 38056

Supreme Court of Missouri

March 1, 1943

Petitioner ordered discharged.

Robert E. Hannegan and Gilbert Weiss for petitioner.

(1) The jurisdiction of the circuit court to issue certiorari under the zoning ordinance is the exercise of special powers created by statute and not according to common law. Sec 7418, R. S. 1939. (2) The court of general jurisdiction exercising special powers must show its jurisdiction in the record and cannot be presumed, and is subject to collateral attack. State ex rel. Dew v. Trimble, 269 S.W. 617; Ells v. Railroad, 51 Mo. 200; Easton v. County of St. Charles, 76 Mo. 492; Cooper v. Gunter, 114 S.W. 943, 215 Mo. 558. (3) The circuit court lacked jurisdiction to hear and determine certiorari in this case because relators were not parties aggrieved under the Enabling Act and the ordinance. State ex rel. Bennett v Becker, 76 S.W.2d 363; In re Campbell's Estate and Leahy v. Campbell (2 cases), 202 S.W. 1114; State ex rel. Fischer v. Vories, 62 S.W.2d 457. (4) The adjudication of the property rights of Hernreich (contemner) could only be had on notice to him. Hider v Sharp, 257 S.W. 112; Wilcox v. Phillips, 260 Mo. 664, 169 S.W. 55; Stuart v. Ramsey, 196 Mo. l. c. 416, 95 S.W. 382; Barber Asphalt Paving Co. v. St. Louis County, 240 S.W. 107. (5) The adjudication of Hernreich's property rights without notice to him was violative of the Missouri Constitution, Article II, Section 30, and the Fourteenth Amendment of the Constitution of the United States. Authorities, supra. (6) That it is violative of the constitutional provision of the Fourteenth Amendment of the United States in that it deprives him of his property without due process of law and denies to him equal protection of the law. (7) Petition in certiorari fails to state a cause of action, as there is a defect of the necessary parties. Ordinance No. 35003; R. S. Mo. 1939, sec. 7418. (8) The circuit court lacked any jurisdiction to render the judgment in the form so rendered because it was beyond the scope of the pleadings and beyond the jurisdiction and power conferred by statute. Authorities cited immediately supra. (9) The circuit court has only the jurisdiction that is vested in the Board of Adjustment, and that Board has no jurisdiction or power to order the vacation of the premises, as that is a criminal offense under the ordinance. Authorities cited immediately supra. (10) The circuit court lacked jurisdiction to cite petitioner for contempt because the purported judgment in the certiorari case was void. (11) The denial of the court to permit contemner to offer evidence in his defense or in mitigation was a procedural denial of due process and violated Article II, Section 30, of the Constitution of the State of Missouri and the Fourteenth Amendment of the Constitution of the United States. Ex parte Nelson, 251 Mo. 63, 157 S.W. 794; Fitzpatrick v. Fitzsimmons, 152 S.W.2d 640. (12) The zoning ordinance as applied to petitioner's property is void and unconstitutional and is violative of Article II, Section 30, of the Constitution of the State of Missouri and the Fourteenth Amendment of the Constitution of the United States. The ordinance as applied to petitioner's property is vague and uncertain and discriminatory in its application to petitioner's property. Glencoe Lime & Cement Co. v. St. Louis, 108 S.W.2d 143.

Louis B. Sher and Bartley & Mayfield for respondent.

(1) The judgment of the Circuit Court of the City of St. Louis, which was affirmed by the St. Louis Court of Appeals in the proceedings styled Berard v. Board of Adjustment of City of St. Louis et al., is and was at all times a valid, binding, and enforceable judgment. Berard v. Board of Adjustment of City of St. Louis, 138 S.W.2d 731; Sec. 7418, R. S. 1939. (2) Such original judgment is not legally open to collateral attack, nor can the original case be retried or relitigated in a habeas corpus proceeding. State ex rel. v. Dobson, 135 Mo. 1; Kella v. Bradley, 84 S.W.2d 653, 229 Mo.App. 821; Miller v. Gerk, 27 S.W.2d 444. (3) Nor does habeas corpus take the place of or act as an appeal or writ of error against the original judgment. Ex parte Dixon, 52 S.W.2d 181, 330 Mo. 652. (4) In the absence of an answer filed by the petitioner to the return of the sheriff, which is the first pleading, such return is taken as true. Thompson v. Sanders, 70 S.W.2d 1051, 334 Mo. 1100; Ex Parte Davis, 62 S.W.2d 1086, 333 Mo. 262; Gugenheine v. Gerk, 31 S.W.2d 1, 326 Mo. 333. (5) The judgment of contempt, upon which the sheriff's return shows prisoner is held, is prima facie valid and burden is upon petitioner to plead and prove the invalidity thereof. Thompson v. Sanders, 70 S.W.2d 1051, 334 Mo. 1100; Ex parte Fichtel, 84 S.W.2d 977, 229 Mo.App. 847; Ex parte Clark, 126 Mo.App. 391. (6) The return of the sheriff shows petitioner is held for contempt "specially and plainly charged in the commitment, by some court . . . having authority to commit for a contempt so charged." Sec. 1621, R. S. 1939, Subsec. 3; Sec. 1623, R. S. 1939. (7) After service of certified copy of original judgment upon petitioner, the circuit court could adjudge him in contempt for failure to comply therewith. Sec. 1268, R. S. 1939; Sec. 2028, R. S. 1939, Subsec. 3. (8) The zoning ordinance of the City of St. Louis, here applied, is constitutional. State ex rel. v. Christopher, 298 S.W. 720, 317 Mo. 1179; Writ of Error Dismissed 1928 in Oliver Cadillac Co. v. Christopher, 49 S.Ct. 17, 278 U.S. 662; State ex rel. v. Schwartz, 82 S.W.2d 63; State ex rel. v. Wellston Sewer Dist., 58 S.W.2d 988. (9) Nor is such ordinance unconstitutional when applied to petitioner's property. Clutter v. Blankenship, 144 S.W.2d 119, 346 Mo. 961. (10) The city has the right by zoning ordinance to say in what district any area in the city should be placed, and the court will not substitute its judgment for that of the city. Mueller v. C. Hoffmeister Und. Liv. Co., 121 S.W.2d 775, 343 Mo. 430.

Ellison, C. J. All concur except Gantt, J., absent.

OPINION

ELLISON

This is a proceeding in habeas corpus. The petitioner, Irving Hernreich, seeks release from the custody of the respondent sheriff, who holds him under a commitment for contempt for violation of an order and judgment of the circuit court in a certiorari proceeding reviewing a decision of the Board of Adjustment of the City of St. Louis. The judgment of the circuit court in the certiorari proceeding was affirmed by the St. Louis Court of Appeals in Berard v. Board of Adjustment et al., 138 S.W.2d 731. Basically, the issues involve a construction of certain provisions of Art. 12, Chap. 38, Secs. 7412-7423, R. S. 1939, same, Mo. R. S. A., and the City's zoning ordinances adopted pursuant thereto, now Chap. VIII, Art. II, Revised Code of St. Louis, 1936, Secs. 160 to 185, pages 57 to 78.

The facts, as recited in an agreed statement of facts in the record, are that petitioner Hernreich and his wife bought Lot 11, City Block 5706 in April, 1935, and got their deed on July 12. The lot abutted two thoroughfares, East Lookout court and Adrian drive, and perhaps a third called Spring drive. At any rate the former two then were at natural grade. About two weeks later on July 23 the City established a grade for East Lookout court, raising it six to eight feet. Five days thereafter, on July 28, the Hernreichs made application for a building permit authorizing the erection of a four car garage and servants' quarters on the rear part of the lot. That permit was issued on September 27 and the next day they applied for and obtained a permit for the erection of a residence on the front part of the lot, more than 25 feet from the rear line.

From here on some of the background facts are nebulous. Part of them do not appear in the agreed statement of facts, but only in the petitioner's brief. But since they are undisputed we state enough of them to give a connected history of the case. The plan for the garage contemplated a driveway therefrom to East Lookout court immediately to the north. But this was rendered impracticable or impossible by the raise in the grade of that thoroughfare. So after construction work on the garage had progressed considerably the Hernreichs determined to convert the garage into a residence, and to put their garage where the residence was to have been, with a driveway to another thoroughfare in front of the lot. It seems this was done. At any rate they moved into the converted garage and used it as a residence.

Sec 170 of the zoning ordinance provides that in the "A" Height and Area District, where the Hernreich lot is situate, "there shall be a rear yard having a minimum depth of twenty-five (25) feet." The garage, as converted into a residence, was not that far from the rear lot line. As we understand, adjoining neighbors complained to the Building Commissioner on that ground, and the Hernreichs made application to the Commissioner for a permit to occupy the residence as thus erected. He denied it. At any rate he issued an order to vacate. The Hernreichs then appealed to the Board of Adjustment, which granted the permit. In October, 1936, two adjoining neighbors, Dr. and Mrs. Louis Berard, as relators, took the case to the circuit court by certiorari under Sec. 7418 of the statutes and Sec. 176 of the ordinance, supra, but without notice to the Hernreichs, who were not joined as record parties to that proceeding. Neither were they served with notice or process, nor did they enter their appearance therein. The cause was submitted on an agreed statement of facts, and on December 29, 1938, the circuit court set aside the decision of the Board of Adjustment and ordered that...