Mueller v. C. Hoffmeister Undertaking & Livery Co.

• Decision Date: 19 November 1938
• Docket Number: 35505
• Citation: 121 S.W.2d 775,343 Mo. 430
• Parties: Oscar A. Mueller v. C. Hoffmeister Undertaking & Livery Company, a Corporation, Appellant
• Court: Missouri Supreme Court

121 S.W.2d 775

343 Mo. 430

Oscar A. Mueller v. C. Hoffmeister Undertaking & Livery Company, a Corporation, Appellant

No. 35505

Supreme Court of Missouri

November 19, 1938

Appeal from Circuit Court of City of St. Louis; Hon. John W Joynt, Judge.

Affirmed.

John E. Mooney for appellant.

(1) The board of aldermen of the city of St. Louis was possessed of the power and jurisdiction to pass and enforce a zoning ordinance of the class of Ordinance No. 35003, affecting the appellant's property, and also the class of Ordinance No 40447, affecting the use of appellant's property. Chap 38, Art. X, R. S. 1929. (2) The board of aldermen of the city of St. Louis was possessed of the power and authority to amend Ordinance No. 35003, as was done by the passage of Ordinance No. 40447. Chap. 38, Art. X, R. S. 1929, secs. 7262-7263. (3) The board of aldermen of the city of St. Louis properly found that in the passage of the blanket zoning Ordinance No. 35003 it had erroneously included appellant's property within a residential zoning district, whereas, in truth and fact, it should have been included in an adjoining commercial district, and said board of aldermen was possessed of the power and authority to correct its errors, as it did by the passage of Ordinance No. 40447. Chap. 38, Art. X, R. S. 1929, secs. 7262-7263. (4) Ordinance No. 35003 as passed by the board of aldermen of the city of St. Louis was in its general scope a valid exercise of the powers and authority of said board, but in its application to the appellant's property it was arbitrary and unreasonable and therefore not enforceable as against appellant's property, and it should have been amended, modified and the errors corrected, as was done by Ordinance No. 40447, all of which acts in the passage of said Ordinance No. 40447 were within its power, authority and duty. Glencoe Lime & Cement Co. v. St. Louis, 108 S.W.2d 143; State ex rel. Oliver-Cadillac Co. v. Christopher, 317 Mo. 1179.

W. Scott Hancock and George F. Johnson for respondent.

(1) Ordinance No. 40447 of the city of St. Louis, purporting to "spot zone" appellant's property as a commercial district is in violation of the entire spirit of the zoning ordinance of the city of St. Louis, and without showing that it is for the purpose of promoting the health, safety, morals or general welfare of the community and in accordance with the general plan and object of the original zoning ordinance, is arbitrary, unreasonable and invalid and in violation of the Enabling Act. Michigan-Lake Bldg. Corp. v. Hamilton, 340 Ill. 284, 272 N.E. 710; 25 Ill. Law Review 817; Wippler v. Hohn, 110 S.W.2d 409.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause raised the constitutional validity of an amendment to the general zoning ordinance of the City of St Louis, and also seeks to enjoin defendant from structurally altering or adding to a building used as a mortuary. The cause was submitted to the trial court on an agreed statement of facts. The court found that the amendment was unconstitutional and void and enjoined defendant as asked. Defendant appealed.

Plaintiff owns residence property fronting 41 feet on the east line of Compton Avenue and extending east 149 feet, 4 inches to an alley. Defendant, for many years, has operated a mortuary or undertaking business, in the city, with its principal office and place of business at 7814 South Broadway, and also owns 68 feet, 1 1/8 inches fronting on the east line of Compton, and extending east 149 feet, 4 inches to the alley, and has, since 1915, operated a mortuary or undertaking business thereon. Prior to February, 1933, the 30 feet fronting on the east line of Compton, and joining plaintiff's property on the north, and defendant's on the south, was owned by one Vorwald, and occupied as a residence. March 21, 1933, defendant acquired the Vorwald property. Bellerive Boulevard, an east and west street, extends along the south side of defendant's property. The city's general zoning ordinance was passed in 1926, and the whole of the block in which lies the property of plaintiff and defendant was classified as residence property and placed in a residence district. The general zoning ordinance (Sec. 8) provided, however, that a lawful use existing at the time of the adoption of the zoning ordinance, although such use did not conform to the provisions of the ordinance, might continue, and provided that such use might be extended throughout the building, provided that "no structural alterations were made, except those required by law or ordinance."

January 11, 1934, defendant made application to the city building commissioner for a permit to "alter and make additions to the present mortuary located on the northwest corner of Bellerive and Compton Avenues." The purpose was to not only alter the building then in use as a mortuary, but to remove the Vorwald residence building and erect on this lot an addition to the mortuary. The building commissioner refused the permit. Defendant appealed from the decision of the building commissioner to the board of adjustment, and on February 7, 1934, this board granted the permit. March 9, 1934, plaintiff filed, in the circuit court, a petition for writ of certiorari. The petition was against J. W. Ludwig et al., constituting the board of adjustment. Certiorari writ was issued, and the board filed return and the certiorari cause was submitted. Thereafter, and on December 26, 1934, the court trying the certiorari cause, reversed the decision granting defendant the permit, and ordered that the original decision of the building commissioner, refusing the permit, be reinstated, and enjoined defendant "from proceeding to carry out its plans for a structural alteration of said building."

June 22, 1934, and while the certiorari case was pending in the circuit court, the board of aldermen amended the general zoning ordinance, by passing what is commonly known as spot zoning bill or ordinance, which changed all of defendant's property fronting on Compton Avenue from residence classification to commercial classification. July 12, 1934, the mayor vetoed the spot zoning ordinance, but on January 11, 1935, the board of aldermen passed the ordinance over the veto. It is the validity of this spot zoning ordinance that is involved in the present cause.

The spot zoning...