State ex rel. Shartel v. Humphreys

• Decision Date: 23 April 1936
• Docket Number: 32588,32589
• Parties: State of Missouri at the relation of Stratton Shartel, Attorney General, and at the relation of Drs. H. L. Kerr, H. S. Gove, W. A. Clark, E. Sanborn Smith, Francis McCallum, Horace W. Carle and James Stewart, Constituting the State Board of Health, v. Charles S. Humphreys, Mayor of the City of Maplewood; John D. Fels and Lee Wilson, Commissioners of the City of Maplewood; L. Waters, Street and Sewer Commissioner of the City of Maplewood; Julius Mueller, City Engineer of the City of Maplewood, and the City of Maplewood, a Municipal Corporation; Henry Krallman, Mayor of the City of Richmond Heights, A. H. Beard, Engineer of the City of Richmond Heights; John J. Leslie, Street Commissioner of the City of Richmond Heights; Albert Riley, Harry Schulz, John Angthias, M. B. Stevens, Charles Du Bois, Robert L. Ries, Glen R. McCarty, R. E. Butler, John J. Flanagan, August Spahn, Constituting the City Council of the City of Richmond Heights and the City of Richmond Heights, a Municipal Corporation, and the City of St. Louis, a Municipal Corporation, Appellants
• Court: Missouri Supreme Court

93 S.W.2d 924

338 Mo. 1091

State of Missouri at the relation of Stratton Shartel, Attorney General, and at the relation of Drs. H. L. Kerr, H. S. Gove, W. A. Clark, E. Sanborn Smith, Francis McCallum, Horace W. Carle and James Stewart, Constituting the State Board of Health, v. Charles S. Humphreys, Mayor of the City of Maplewood; John D. Fels and Lee Wilson, Commissioners of the City of Maplewood; L. Waters, Street and Sewer Commissioner of the City of Maplewood; Julius Mueller, City Engineer of the City of Maplewood, and the City of Maplewood, a Municipal Corporation; Henry Krallman, Mayor of the City of Richmond Heights, A. H. Beard, Engineer of the City of Richmond Heights; John J. Leslie, Street Commissioner of the City of Richmond Heights; Albert Riley, Harry Schulz, John Angthias, M. B. Stevens, Charles Du Bois, Robert L. Ries, Glen R. McCarty, R. E. Butler, John J. Flanagan, August Spahn, Constituting the City Council of the City of Richmond Heights and the City of Richmond Heights, a Municipal Corporation, and the City of St. Louis, a Municipal Corporation, Appellants

Nos. 32588, 32589

Supreme Court of Missouri

April 23, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Robert W McElhinney, Judge.

Affirmed.

E H. Wayman and L. A. McKeown for City of St Louis.

W. F. Stahlhuth and Chas. E. Altenbernd for City of Maplewood.

(1) Under our code, mandamus cannot be joined with another cause of action in the same petition. Barada v. Inhabitants of Carondelet, 16 Mo. 331. (2) The right of eminent domain is inherent in the State and can only be exercised by the State, or by those to whom such power has been delegated by statute, in strict compliance with the constitutional limitations. 20 C. J., pp. 531, 533, secs. 19, 23; State ex rel. v. Gordon, 36 S.W.2d 106; Schmidt v. Densmore, 42 Mo. 234; Southwest Mo. Light Co. v. Schuerich, 174 Mo. 241. (3) The right of eminent domain, being in derogation of common right, and being of statutory origin, must be clearly and unmistakably expressed in the statute conferring the right. Such statutes must be strictly complied with and strictly construed. 20 C. J. 533, secs. 22, 23; State ex rel. v. City, 63 S.W.2d 815; City v. Smith, 30 S.W.2d 730; City of Tarkio v. Clark, 186 Mo. 298; Southwest Mo. Light Co. v. Schuerich, 174 Mo. 241; School Dist. v. Dorton, 125 Mo. 443. (a) The petition in condemnation must allege the authority of the plaintiff to bring the action. If it fails to do so, it fails to state a cause of action. St. Louis v. Railroad Co., 50 S.W.2d 639. (4) The extraordinary writ of mandamus will not be granted unless relators allege and prove that they have a clear, unconditional, legal right to the performance of the act sought to be coerced, and that it is the present, imperative and unconditional duty of respondent to perform such act. 38 C. J. 582, sec. 56; State ex rel. v. Hudson, 226 Mo. 265; State ex rel. v. Wenom, 32 S.W.2d 63; State ex rel. v. Pythian Sisters, 54 S.W.2d 469. (5) Any person has the right to ward off surface water and mandamus will not lie against him to prevent him from doing so, even though his doing so results in damage to others. Adair Drainage Dist. v. Railroad Co., 280 Mo. 254; Goll v. Railroad Co., 271 Mo. 665; Walther v. Cape Girardeau, 166 Mo.App. 475. (6) A city cannot legally dam up or collect surface waters into artificial channels and cast them in a body on adjoining land. Such conduct constitutes a nuisance. Yeoman v. Kansas City, 18 S.W.2d 110; Scott v. Marshall, 14 S.W.2d 697; Zook v. Louisiana, 12 S.W.2d 519; Bodam v. New Hampton, 290 S.W. 623; Davoren v. Kansas City, 308 Mo. 525; City of Hannibal v. Richards, 82 Mo. 336. (7) A city has no right to empty its foul sewage on private property. If it does so it is guilty of maintaining a nuisance. Windle v. Springfield, 8 S.W.2d 62; Scott v. Marshall, 14 S.W.2d 697; Smith v. Sedalia, 182 Mo. 12; Smith v. Sedalia, 152 Mo. 302; Foncannon v. Kirksville, 88 Mo.App. 283. (8) "A nuisance is a public one if it affects the enjoyment and health of persons as a part of the public, while passing about, to and from a public place where people have a right to go. It is the public annoyance, and not the number of people annoyed by it, that constitutes it a public nuisance." State ex rel. v. Service Cushion Tube Co., 291 S.W. 108. (9) When a city maintains a sewer and fails to provide an outlet therefor, it has failed in the performance of its duties, and is guilty of maintaining a nuisance. City v. Pennington, 288 S.W. 940; Sasse v. Barkwell, 195 S.W. 543; South Island, etc., Co. v. City, 172 Mo. 531; Johnson v. Duer, 115 Mo. 377; Scott v. Marshall, 14 S.W.2d 697. (10) A city may not maintain a nuisance on its own land if the effects thereof injure and damage adjoining land, or the public. State ex rel. v. Sedalia, 241 S.W. 657; Newman v. Marceline, 6 S.W.2d 660; McCleery v. Marshall, 65 S.W.2d 1043. (11) Mandamus will not lie to compel the performance of a discretionary act. State ex rel. v. Thompson, 293 S.W. 395; State ex rel. v. City, 230 S.W. 353. (a) But it will lie to compel the performance of a ministerial duty. State ex rel. v. Meier, 143 Mo. 446; Wiles v. Williams, 232 Mo. 64.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondents; Leon M. Feigenbaum of counsel.

(1) The welfare and health of the people are paramount and the State Board of Health has the right to prevent the spread of disease or to act to abate a nuisance. It needs no other interest in the litigation and, unless its action is taken in bad faith, it should not be questioned. Sec. 9015, R. S. 1929; State ex rel. McAnally v. Goodier, 93 S.W. 928; In re Debs, 158 U.S. 584, 15 S.Ct. 900, 39 L.Ed. 1092. (a) On behalf of the State Board of Health the Attorney General is the proper officer to bring an action to enforce a state right, or to abate a public nuisance. Sec. 11276, R. S. 1929; State ex rel. Delmar v. Zachritz, 65 S.W. 999; State ex rel. Wear v. Springfield Gas Co., 204 S.W. 942. (2) When it is necessary for the State to abate a nuisance by positive action that action may be brought by mandamus as well as by injunction. 7 McQuillin on Municipal Corps., 1380; State ex rel. Pickering v. Willow Springs, 230 S.W. 352. (3) While a writ of mandamus, generally, proceeds toward the enforcement of a ministerial function it may also be invoked to correct the abuse of a discretionary power. State ex rel. Journal Ptg. Co. v. Dreyer, 167 S.W. 1123; State ex rel. First Natl. Bank v. Bourne, 131 S.W. 896; State ex rel. Heiltz v. Bowman, 294 S.W. 107; State ex rel. Cornelius v. McClanahan, 278 S.W. 89. (4) The action of the officials of Maplewood, in deliberately obstructing a natural drain, was a wrongful act. To compel the undoing of a thing wrongfully done mandamus will lie. Jennings Heights Land & Imp. Co. v. St. Louis, 165 S.W. 741; Rosedale v. Kansas City, 223 S.W. 615; Horine v. Peoples Sewer Co., 204 S.W. 735; Improvement Co. v. Railroad Co., 255 Mo. 525; State ex rel. Roberts v. Wilson, 297 S.W. 419. (5) The summary abatement of a nuisance by a state health officer is not a taking of property without due process of law if the injured party is given an opportunity to have a judicial hearing of the questions involved, at any time, before or after the abatement. Valley Spring Hog Ranch v. Plagman, 220 S.W. 1; State ex rel. Horwitz v. North, 264 S.W. 678; Barbin v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; North Amer. Cold Storage Co. v. Chicago, 211 U. U. 306, 53 L.Ed. 195, 29 S.Ct. 101; Hutcheson v. Valdosta, 227 U.S. 303, 57 L.Ed. 520, 33 S.Ct. 290; People ex rel. Copcutt v. Board of Health of Yonkers, 140 N.Y. 1, 35 N.E. 320; Miller v. Horton, 152 Mass. 530, 26 N.E. 100; Lowe v. Conroy, 120 Wis. 151, 97 N.W. 942; Salem v. Railroad Co., 98 Mass. 431, 96 Am. Dec. 650.

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

OPINION

BRADLEY

The State, at the relation of the Attorney General and the State Board of Health as relators, proceeded in mandamus to compel Maplewood and Richmond Heights (cities of St. Louis County) and their officers to do certain things respecting sewer outlet and connections, all for the purpose of abating a public nuisance. Petition was filed in the Circuit Court of St. Louis County and the alternative writ issued. Maplewood and its officers, jointly; Richmond Heights and its officers, jointly; and the city of St. Louis, filed returns. Relators, in a single pleading, replied to the three separate returns. Maplewood and its officers filed reply to the return of Richmond Heights and its officers, and Richmond Heights and its officers filed reply to the return of Maplewood and its officers. From the final judgment all parties respondent below appealed to this court as appears from certified copy of judgment and order granting appeal filed here, but the abstract of the record shows only the appeal of Maplewood and its officers. Two separate certified copies of judgment and order granting appeal were sent up and docketed under separate numbers, but the appeal situation is as stated.

The petition (including the prayer), except some preliminary allegations, is set out in full in the alternative writ. It is alleged that Maplewood and Richmond Heights are adjacent cities, the former of the third and the latter of the fourth class; that Richmond Heights lies generally to the north and east of Maplewood and where adjacent these cities are separated by Big Bend Boulevard, a north and south highway; that, before the incorporation of either of these cities, a culvert was built under Big Bend; that the natural drainage of surface water from Richmond Heights has always been to the west or southwest through said culvert and on and into Maplewood; that for many years Richmond...