Superior Press Brick Co. v. City of St. Louis
| Citation | 152 S.W.2d 178 |
| Decision Date | 18 April 1941 |
| Docket Number | No. 37160.,37160. |
| Parties | SUPERIOR PRESS BRICK CO. et al. v. CITY OF ST. LOUIS et al. |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Circuit Court.
Suit by Superior Press Brick Company and others against the City of St. Louis and another for an injunction to prevent defendants from enforcing the provisions of a zoning ordinance. Judgment for plaintiffs, and defendants bring error.
Cause transferred to St. Louis Court of Appeals.
Edgar H. Wayman, City Counselor, and Oliver Senti, Associate City Counselor, both of St. Louis, for plaintiffs in error.
Leahy, Walther & Hecker, of St. Louis, for defendants in error.
DALTON, Commissioner.
Writ of error to the circuit court of the City of St. Louis. From the return it appears that defendants in error, on October 21, 1938, filed a petition in said court for an injunction to prevent the City of St. Louis and Charles A. Welsch, Building Commissioner of said city, plaintiffs in error here, from enforcing the provisions of a zoning ordinance restricting the use of the property described in the petition. Only the record proper is here, to wit, the petition, a demurrer to the petition, the order overruling the demurrer, the answer, and the decree of the court by which defendants in said cause were enjoined from enforcing, for a period of five years, the said zoning ordinance, in so far as it prevented plaintiffs from mining and removing fire clay from their described lands.
We are first confronted with the question of our jurisdiction. No question is raised as to our jurisdiction, but it becomes our duty sua sponte to investigate and determine that question. State ex rel. Martin v. Childress, 345 Mo. 495, 134 S.W.2d 136, 138; Ashbrook v. Willis, 338 Mo. 226, 89 S.W.2d 659. Plaintiffs in error have wholly ignored our Rule 15, which, as amended November 7, 1939, requires "a concise statement of the grounds on which the jurisdiction of this court is invoked.
The mere fact that the City of St. Louis, a "political subdivision of the state," is a party to the suit is not alone sufficient to give us jurisdiction, unless the appeal involves county rights or functions. Lovins v. City of St. Louis, 336 Mo 1194, 84 S.W.2d 127. In this case the plaintiffs (defendants in error here) sought an injunction against the city and its Building Commissioner to enjoin the enforcement of a zoning ordinance. The matter involved was directly connected with the city's corporate aspects, functions and duties, to wit, the enforcement of a city ordinance. The matter pertained to municipal government. No county rights or functions were involved. Questions similar to these presented here could arise in cities like Springfield or Kansas City which are not political subdivisions of the state. If we have jurisdiction, it is on other grounds. A statement of the record is required. We shall refer to the parties as plaintiffs and defendants, as in the original cause.
Aside from preliminaries, the petition alleged that the Superior Press Brick Company was the owner of a certain 11-acre tract of real estate and the Northampton Realty Company owned a certain 50-acre tract of real estate; that the owner of the second tract had filed with the Board of Public Service of defendant city a plat, subdividing said real estate into blocks and lots with proposed streets and alleys; that the plat had been duly approved and the streets and alleys dedicated to public use; that such streets and alleys had not been opened, paved or improved; that the surface of the land had been graded, but no buildings or improvements had been erected; that it was "merely a paper subdivision" as authorized by the plat and approved by the said Board of Public Service; that the entire 61 acres was a vacant tract of land with no buildings and no open streets or alleys; that the southern 8 acres of the first tract and the eastern 8 acres of the second tract formed a 16-acre tract in a district formerly devoted to mining and treatment of fire clay; that three such clay mines in that vicinity were actively engaged in mining and selling clay.
That said 16 acres contained large deposits of fire clay, which had been partially mined about 1908; that work had been abandoned during that year; that in mining said clay, shafts were sunk and tunnels and drifts excavated under the surface, and pillars of fire clay left when operations ceased; that some of the land had settled in consequence of the subterranean conditions; that the surface on the remainder was likely to subside and damage any buildings which might be erected thereon; and that the pillars under said 16 acres were estimated to contain 100,000 tons of fire clay of the reasonable value of $200,000.
That the City of St. Louis by Ordinance No. 35003, Ordinance No. 35009, approved April 26, 1926, established general zoning districts regulating the use of buildings, structures and premises in subdivisions in said city; and that the use map, which was made a part of the general zoning ordinance, placed plaintiffs' property in the residence district, where only certain types of buildings could be erected.
That the ordinance provided that lawful use of land existing at the time of the adoption of the ordinance, although not conforming to the provisions of the ordinance, could continue; and that the ordinance made it a misdemeanor for owners of buildings or premises to permit violations of the ordinance.
That in order to adapt plaintiffs' property to use, for the erection of such buildings as were permitted in the residence district, it would be necessary for the fire clay pillars, supporting the roofs of the mines, to be removed so the top surface could drop down and settle gradually and evenly; that the mining and removal of the pillars of fire clay under plaintiffs' land would not prevent, nor interfere with, the use and enjoyment of adjacent property; and that the removal of the fire clay would render plaintiffs' land adaptable for use for residence purposes.
That, without such preparation, the land could not be adapted to and used for the uses prescribed by the said ordinance which placed it in the residence district; and that placing the land in the residence district, without permitting the removal of such fire clay, deprived plaintiffs of all uses of their land and constituted an unlawful appropriation and confiscation thereof.
That, with the permission of the city and the Building Commissioner, a shaft was sunk for the purpose of making explorations as to the condition of the subterraneous tunnels and mines and supports of the roof of said mines; that, after the condition was ascertained, the owners of said property, together with plaintiff, Oak Hill Fire Clay Company, with whom a contract had been entered for the removal of said clay, joined in an application to the defendant Building Commissioner for a permit to erect a tipple and hoisting apparatus for the mining and removal of said clay pillars; that the plans complied with the Building Code of said city; that the application for a permit was denied; that plaintiffs appealed from the ruling of the said Building Commissioner to the Board of Adjustment, created under the provisions of said ordinance; and that the Board sustained the refusal of the Building Commissioner to grant the permit for the erection of the tipple for the mining of said fire clay.
That plaintiffs were proceeding to sink the shaft and construct the necessary equipment on their land for the removal of said fire clay deposits; that the city and the Building Commissioner threatened to arrest and prosecute the plaintiffs and contractors, if plaintiffs proceeded to open the shafts and to mine and remove the fire clay, contending such acts were in violation of the general zoning ordinance; and that defendants threatened separate prosecutions for each day plaintiffs and their agents were engaged in sinking the shafts or constructing equipment and mining and removing the fire clay.
The petition then alleged that plaintiffs intended solely to mine the fire clay and remove it from the premises; "and that, after said fire clay has been so mined and removed from the said land, to use the land for the erection and use of such buildings and structures as are permissible in the residence district under said zoning ordinance; * * that the zoning ordinance * * * as amended * * * does not forbid the mining and removal of the said deposits of fire clay from the properties of plaintiffs, and the mining and removal of such clay will not constitute a violation of said ordinance."
Plaintiffs alleged that if the ordinance "prohibits plaintiffs from mining and removing the fire clay deposits, as contended by defendants, in its application to said property of plaintiffs" it was unconstitutional and void, arbitrary, unreasonable and discriminatory and constituted the taking of the properties without just compensation and without due process, citing constitutional provisions.
"That the said Zoning Ordinance construed, as the defendants herein threaten to construe and enforce the same, is unconstitutional, void and unenforceable and is an unreasonable discrimination against the properties of plaintiffs, in that the said properties of plaintiffs are by the said Zoning Ordinance placed in the Residence Use District and the said lands of plaintiffs, because of the conditions of the mines under the said lands as hereinbefore described, are not reasonably usable or adaptable to the purposes of the Residence District under the said Ordinance, unless and until the pillars and fire clay under the surface of the lands of plaintiffs has been removed and the said surface thus allowed to fall evenly, and that the classifying of the said lands of plaintiffs in the Residence District, without permitting plaintiffs to make the necessary adaptation of the said lands to the uses of the Residence District by...
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