State ex rel. Horskottle v. Bd. of Health of the City of St. Louis

• Decision Date: 10 June 1884
• Citation: 16 Mo.App. 8
• Parties: THE STATE OF MISSOURI EX REL. H. HORSKOTTLE, Appellant, v. BOARD OF HEALTH OF THE CITY OF ST. LOUIS, Respondent.
• Court: Missouri Court of Appeals

16 Mo.App. 8

THE STATE OF MISSOURI EX REL. H. HORSKOTTLE, Appellant,

v.BOARD OF HEALTH OF THE CITY OF ST. LOUIS, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 10, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

G. M. STEWART, for the appellant: That which has legslative sanction can not be a public nuisance.-- Crittenden v. Wilson, 5 Cow. 165; Fletcher, v. Railway Co., 25 Wend. 462; The State v. Western, etc., Co., 2 Johns. 283; People v. Platt, 17 Johns. 195; Wood on Nuisances, sect. 757, and cases cited. There can be no question of the power to license brick-kilns. They are not a nuisance per se.--Wood on Nuisances, sect. 519, and cases cited. It would seem to be immaterial, however, if it were a nuisance per se.-- The State v. Clark, 54 Mo. 17. The question is, can the respondent deprive us of the use of property which the charter and the city has given us the right to use? If not, then the respondent is proceeding without authority or warrant of law, and the writ should issue.-- Thomas v. Mead, 36 Mo. 232; Howard v. Pierce, 38 Mo. 296; Trainer v. Porter, 45 Mo. 336; The People v. Works, 7 Wend. 486; The State ex rel. Jones v. Laughlin, 73 Mo. 443; The State ex rel. v. Lewis, 76 Mo. 370; The State v. Wilcox, 24 Minn. 143.

LEVERETT BELL, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

The petition of relator contains the following allegations: Relator owns a lot, 2310 and 2312 Madison Street, in the city of St. Louis, on which he has continually operated since 1874 a brick-yard and brick-kiln; these have been constantly operated in the same manner as all brick-kilns then and since operated in said city are and have been operated. On September 4, 1883, the health commissioner of St. Louis reported this brick-kiln of relator to the board of health of that city as a nuisance detrimental to public health, and cited relator to appear before said board on September 13, to show why the same should not be abated. Relator, in obedience to this summons, appeared and demurred to the jurisdiction, on the grounds: 1. That the brick-kiln was established before the then existing city charter, and before the passage of ordinances respecting the establishment of brick-kilns in St. Louis, wherefore relator has a license to operate his kiln. 2. The second disdistrict police court of St. Louis, on complaint of the chief of police against relator for maintaining this brick-kiln, on hearing, adjudged in favor of relator's right to maintain this kiln. This demurrer was overruled by the board of health, which then proceeded to declare the brick-yard and brick-kiln of relator a public nuisance detrimental to the public health, and now proposes to proceed to take steps to abate the same. Section 34 of article 3 of the city charter of 1876, provides that no brick-kiln shall be located within 300 feet of any dwelling-house built or inhabited before such location, without the consent in writing of the owner and occupant of every such house; and that the municipal assembly shall provide by ordinance for the effectual enforcement of this section. Afterwards, on March 29, 1881, sections 16 and 17 of article 17, chapter 14, of the revised ordinances of St. Louis were enacted, by which it is provided that “hereafter no brick-kiln shall be located within 300 feet of any dwelling-house built and inhabited before such location, without the consent in writing of the owner and occupant of every such house;” the violation of the provision to be a misdemeanor punishable by fine; and, also, that any person operating a brick-kiln within 300 feet of any dwelling, without the consent in writing of the owner and occupant, shall be fined not less than $25 for every day he so operates such kiln. These ordinances are still in force; and relator was prosecuted under them in the police court, which court on September 18, 1883, found relator not guilty, on the ground that his kiln was located and operated before the charter and ordinances aforesaid were adopted. This judgment is in force; and relator claims that it is conclusive against the city as to relator's right to operate his kiln. Relator prays for a writ requiring the board of health to show cause why a writ of prohibition should not issue commanding it to desist from further action in the premises and from executing its order condemning relator's brick-kiln.

To the alternative writ issued on this petition, the respondent made answer: That all the proceedings in question before the board of health were ended on the 8th of October, twenty days before relator's application herein; that on said day, the board of health, by virtue of the charter and ordinances above set out, after hearing evidence in the matter, condemned the kiln in question as a nuisance detrimental to public health. The particulars of these proceedings, and the notice to relator, are set out, and it is alleged that they were in conformity to law; that the relator appeared and defended by counsel, and that these proceedings were within the jurisdiction of the board of health. Respondent puts in issue the alleged judgment of the police court; but says that it had no operation to oust the jurisdiction of the board of health in the premises.

Relator demurred to this return, on the ground that it states no defence. The demurrer was overruled, and the information was dismissed.

We see nothing in the facts admitted by the pleadings in this case which tend to show that the board of health exceeded its jurisdiction in condemning this brick-kiln as a nuisance.

We see nothing in the...