Kalbfell v. City of St. Louis

Decision Date27 May 1948
Docket NumberNo. 40502.,40502.
Citation211 S.W.2d 911
PartiesARTHUR F.D. KALBFELL and MARIE K. WIMBERLY, Partners Doing Business as ROBIN THEATER, Appellants, v. CITY OF ST. LOUIS, a Municipal Corporation, A.P. KAUFMANN, Mayor of the City of St. Louis, CHARLES J. RILEY, Director of Public Safety of the City of St. Louis, ALBERT H. BAUM, Building Commissioner of the City of St. Louis, JEREMIAH O'CONNELL, Chief of Police of the City of St. Louis, and WALKER H. KAMMANN, Fire Marshal of the City of St. Louis.
CourtMissouri Supreme Court

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

AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART (with directions).

Alfred L. Grattendick and Malcolm I. Frank for appellants.

(1) A municipality or a municipal officer has no authority to declare that to be a nuisance which is not a nuisance per se. Lux v. Milwaukee Mechanics Ins. Co., 332 Mo. 342, 15 S.W. (2d) 343; St. Louis v. Dreisorner, 243 Mo. 217, 147 S.W. 998; Walther v. City of Cape Girardeau, 166 Mo. App. 467, 149 S.W. 36; Potashnick Truck Service v. City of Sikeston, 351 Mo. 505, 173 S.W. (2d) 96; Tebbets v. McElroy, 56 Fed. (2d) 621; Northern Pac. R. v. City of Spokane, 52 Fed. 428. (2) Any ordinance that clothes an administrative official with arbitrary discretion, without a definite standard or rule for his guidance, is a delegation of legislative functions, and is unconstitutional. Triangle Fuel Co. v. St. Louis, 196 S.W. (2d) 296; Hays v. City of Poplar Bluff, 216 Mo. 516, 173 S.W. 676; Lux v. Milwaukee Mechanics Ins. Co., 332 Mo. 342, 15 S.W. (2d) 343; City of St. Louis v. Polar Wave Ice & Fuel Co., 317 Mo. 907, 296 S.W. 993. (3) Vested property rights cannot be summarily destroyed under the guise that a building is a nuisance, except in cases of great emergency. Lux v. Milwaukee Mechanics Ins. Co., 332 Mo. 342, 15 S.W. (2d) 343; Murphy v. Limpp, 347 Mo. 249, 147 S.W. (2d) 420. (4) The city, instead of illegally exercising a summary power, should have proceeded legally to cite appellants to show cause why their license to operate should not be revoked. Their license to operate lawfully issued, could not, in effect, be revoked without a hearing or right of review.

George L. Stemmler, John P. McCammon and Frank A. Neun for respondents.

(1) Municipal ordinances enacted under the police power to protect public safety will be sustained by the courts. Property values may be diminished or entirely destroyed in the exercise of the police power without constituting a violation of the due process of law clause or the equal protection of law clause of the Fourteenth Amendment to the U.S. Constitution. Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 90 L. Ed. 1096; Reinman v. Little Rock, 237 U.S. 171, 35 S. Ct. 511, 59 L. Ed. 900; City of St. Louis v. Commission & Inv. Co., 226 Mo. 148, 126 S.W. 166; Pierce Oil Corp. v. Hope, 248 U.S. 498, 63 L. Ed. 381, 39 S. Ct. 172; Hadacheck v. Sebastian, 239 U.S. 394, 60 L. Ed. 348, 36 S. Ct. 143. (2) It is for the legislature to decide what regulations are needed to reduce fire hazards to the minimum. The courts are not concerned with the wisdom or the need for this legislation. Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 90 L. Ed. 1096; City of St. Louis v. Commission & Inv. Co., 226 Mo. 148, 126 S.W. 166; Blind v. Brockman, 321 Mo. 58, 12 S.W. (2d) 742. (3) Where an ordinance fixes standards of guidance or limitation, and is applicable to all in like circumstances, the power to determine violations and enforce compliance may be validly delegated to an administrative officer. Lux v. Milwaukee Mechanics Ins. Co., 322 Mo. 342, 15 S.W. (2d) 343. (4) A city may act immediately to remove or suppress a fire hazard. Under the police power it may protect the public safety by preventing persons from willfully violating fire protection and building safety ordinances. Eichenlaub v. St. Joseph, 113 Mo. 395, 21 S.W. 8; Potashnick Truck Service Co. v. City of Sikeston, 351 Mo. 505, 173 S.W. (2d) 96. (5) Fire hazards need not be declared nuisances per se in order to abate or suppress them under the police power. Reinman v. Little Rock, 237 U.S. 171, 35 S. Ct. 511, 59 L. Ed. 900.

BOHLING, C.

Arthur F.D. Kalbfell and Marie K. Wimberley, partners operating a moving picture or cinema business under the name of Robin Theater in the City of St. Louis, instituted this action April 25, 1947, against the City of St. Louis, the Mayor, the Director of Public Safety, the Building Commissioner, the Chief of Police, and the Fire Marshal of said City, to enjoin defendants from closing said theater and also to enjoin defendants from demolishing the building under a notice of condemnation issued under the new Building Code of said City. The Robin Theater was closed by municipal officials for use as a motion picture theater on April 6, 1947, because the continued occupancy of the structure as a motion picture theater conflicted with Building Code provisions safeguarding the public against hazards of fire or panic; and another order, issued April 16, 1947, condemned the building, stating it was a Class VI structure under the Building Code and, unless it be made safe or removed within three days, city officials would remove it and place a lien against the property for the expense incurred. Plaintiffs' bill was dismissed. They appeal, claiming the property to be worth approximately $30,000 and that they are being deprived thereof without due process of law and denied the equal protection of the law in contravention of constitutional provisions.

Plaintiffs operated a cinema in the building since they acquired it in 1936. The Robin Theater structure had been in existence for approximately thirty years, was rectangular in shape, seated 500 to 600 persons, and met the building requirements prior to the adoption of the present Building Code. Its framework and walls are of wooden construction, covered with sheet metal. A wall board known as "Celotex," a combustible material, is attached to the sheet metal on the interior and constitutes the surface of the inner wall. We understand the surface of the outer wall is imitation brick. Other features of the structure are not fire proof, but we need not detail them. There was testimony that the building was a Class VI structure under the Building Code but was being used for an occupancy calling for "Fire-protected Structures," a Class I or Class II structure; that it constituted a fire hazard when consideration was given to its occupancy as a cinema; and that it was the only one of like construction of the eighty-nine moving picture theaters in the City.

The existing Building Code of the City of St. Louis is Ordinance No. 43,114 and became effective April 5, 1945. It is lengthy, comprising 582 pages of printed matter; is divided into fourteen principal parts or divisions, with a total of 116 sections and many subsections and subdivisions of subsections. The ordinance specifies conditions, tests, regulations, and other requirements in great detail relating to buildings within said City. The stated purpose of the Code "is the promotion of the public health, welfare, safety and prosperity ..." by the establishment of minimum standards for structures of any nature et cetera. Part I, Sec. 1-1-(2). The ordinance is "declared to be remedial and it shall be liberally construed ..." Part I, Sec. 1-1-(5).

[1] Plaintiffs say the Robin Theater is not a "major theater" under Code definitions. We understand defendants do not dispute this; but they contend that while it does not fall within the definition "Theater, Major" in the Code,1 it requires a structure qualified to house a major theater, a fire-protected structure. This calls for a consideration of a number of specific Code provisions.

"Part XIII" of the Code covers "Detailed Regulations for Places of Assembly," being Secs. 80 to 91, inclusive. Section 81 thereof is applicable to "Cinemas, or Moving Picture Theaters"; and Sec. 81-1 reads:

"Every structure occupied for the purposes of a motion picture theater, or cinema, shall conform to the particular requirements of this section, which is supplemental to Sections 10 and 11, relating to occupancies, and to other applicable sections.

"Except for the expressed exemptions and the requirements of this section, every structure occupied for the purposes of a cinema shall conform to the applicable requirements of Section 80 for a major theater structure."

Section 80 relates to "Theaters, and Places of Public Assembly Equipped with Stages and Scenery" and Sec. 80-5, so far as material, reads:

"... All parts of each structure housing a major theater ... shall be of construction meeting the requirements of Section 22 for a Class I structure if the population thereof exceeds 700 persons, and for a Class II structure if the population is less." If a structure has fixed seats, its "nominal population shall be the full capacity of such occupancy provisions." Part V, Sec. 10-5, Building Code. The Robin Theater requires a "Class II" structure as it seats less than 700.

"Part VI," Secs. 21-27, inclusive, of the Code relates to "Requirements Based on Class of Construction." Section "21-1. Establishment of Classes," classifies all structures hereafter erected into six classes of construction, according to the materials used, "as follows:

"Class I, Fire-protected Structures. Class II, Fire-protected Structures. Class III, Mill Type Structures. Class IV, Ordinary Structures. Class V, Metal Structures. Class VI, Wood Frame Structures.

"Structures of the various classes of construction shall meet the requirements of Section 22 to and including 27, respectively." Other provisions of Sec. 21 require the fire-resistive protection for structural elements of Classes I to IV, inclusive, to conform to Secs. 22-25, inclusive, an the fire-resistance ratings scheduled in Table 21A; and that...

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