Taylor v. Schlemmer

• Decision Date: 06 November 1944
• Docket Number: 39031
• Parties: R. C. Taylor et al. v. Cedric Schlemmer and Vera Schlemmer, Appellants
• Court: Missouri Supreme Court

183 S.W.2d 913

353 Mo. 687

R. C. Taylor et al. v. Cedric Schlemmer and Vera Schlemmer, Appellants

No. 39031

Supreme Court of Missouri

November 6, 1944

Rehearing Denied December 4, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

Walter Hecker & Walter and Elmer W. Oehler for appellants.

(1) Before the State Enabling Act (Laws 1925, p. 307, now Chap 34, Art. XII, R.S. 1939) the City of St. Louis was without power to restrict the use of private property without compensation. State ex rel. Penrose Inv. Co. v. McKelvey, 301 Mo. 1, 256 S.W. 474; State ex rel. Better Built H. & M. Co., v. McKelvey, 301 Mo. 130, 256 S.W. 495. (2) The Enabling Act which was enacted to authorize a municipality, under the exercise of the police powers, to regulate the location in use of buildings within the municipality provides that the regulations must be made in accordance with a comprehensive plan after public hearing in relation thereto, at which parties in interest and citizens shall have opportunity to be heard. Secs. 7414, 7415, R.S. 1939. (3) It is essential to the valid exercise of the power of a municipality under the Enabling Act that the plan of zoning should be comprehensive, including the entire city, and upon full hearing. Wippler v. Hohn. 341 Mo. 780, 110 S.W.2d 409; State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720; Bassett on Zoning, 1940 Ed., p. 48; Smith on Zoning & Procedure, p. 10. (4) The Enabling Act provides that a zoning commission shall be appointed to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. The municipal legislative body is without jurisdiction to enact a zoning ordinance except upon final report and recommendations by the zoning commission, made after investigation and public hearings by the Commission as provided by the Enabling Act. Sec. 7417, R.S. 1939; State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63; Armourdale State Bank v. Kansas City, 292 P. 745; Baker, "Legal Aspects of Zoning," pp. 52, 53, 56, 57. (5) The original general Zoning Ordinance of St. Louis No. 35003 was enacted by the Board of Aldermen upon the recommendation and final report of the City Zoning Commission, made after extended study and investigation and after public hearings held by the City Zoning Commission, and the general ordinance was upheld in State ex rel. Oliver Cadillac Co. v. Christopher et al., 317 Mo. 1179, 298 S.W. 720. (6) The Enabling Act provides that "at least fifteen days' notice of the time and place of the hearing on the original general zoning ordinance shall be published in an official paper or a paper of general circulation in such municipality." Sec. 7415, R.S. 1939. (7) The Enabling Act requires the "same careful, serious and intelligent consideration" of an amendment to a zoning ordinance as required of an original ordinance and the same notice and hearing. Sec. 7416, R.S. 1939; Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409; Armourdale St. Bank v. Kansas City, 292 P. 745. (8) Observation of the statutory provisions are as vital to the validity of an amending ordinance as to the validity of original zoning ordinance. Bassett on Zoning (1940 Ed.), pp. 36, 37; Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409; Mueller v. Hoffmeister U. & L. Co., 343 Mo. 430, 121 S.W.2d 776; Scofield v. Los Angeles, 7 P.2d 1076; Smith on "Zoning Law and Practice," sec. 27, p. 50; 2 McQuillin, Mun, Corp. (2 Ed.), sec. 1034, p. 448. (9) Ordinance No. 36797, upon which plaintiffs' petition is based and upon which plaintiffs rely as amending the original general Zoning Ordinance, is invalid for want of the notice and hearing provided by the Enabling Act. Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409; Bassett on Zoning (1940 Ed.), p. 36. (10) The said notice is insufficient as to contents. It imparts no notice that the 4300 and 4400 blocks on Westminster Place (in which the properties of plaintiffs and defendants are situated) are affected and changed from the classification of a Multiple Dwelling district to a Residence district. Palmer v. Mann, 201 N.Y.S. 525, 206 A.D. 484, 237 N.Y. 616; Berrata v. Sales, 255 P. 538; Katz v. Higson, 113 Conn. 776, 155 A. 507; Peters, Mayor, v. Gough, 86 S.W.2d 515; Village of Mill Neck v. Nolan, 233 A.D. 248; Schierloh v. Wood, 244 N.Y.S. 651, 230 A.D. 788; Pressel v. Ferris, 266 N.Y.S. 517; Hurst v. City of Burlingame, 277 P. 308; Roman Cath. Arch. v. Board of Appeals, 167 N.E. 672; State ex rel. Holcombe v. City of Lake Charles, 144 So. 502. (11) The publication notice in only one issue of the City Journal and not in the succeeding four weekly issues, did not constitute the 15 days' publication required by the Enabling Act. The publication must be continued in each weekly issue of the City Journal to the date of the hearing. State v. Dobbins, 116 Mo.App. 29, 92 S.W. 136; State v. Brown, 130 Mo.App. 214, 109 S.W. 99; City of Brunswick ex rel. Barkwell v. Benecke, 289 Mo. 307, 233 S.W. 169; Armstrong v. Scott, 3 Greene, 433; Allen v. Kerr, 13 Lea, 256; 46 C.J., sec. 79, p. 561; U.P. Ry. Co. v. Montgomery, 49 Neb. 429; Whittaker v. Beach, 12 Kan. 492; 41 C.J., sec. 1407, p. 962. (12) Ordinance No. 36797, which attempts to change the classification of defendants' property from a multiple dwelling zone to a residence district, is invalid because it contravenes the provisions of the Charter of the City of St. Louis that no bill, except a general appropriation bill, shall contain more than one subject which shall be clearly expressed in its title. St. Louis Charter, Art. IV, Sec. 13, Rev.; 2 McQuillin on Mun. Corp. (2 Ed.), sec. 714, p. 759; State ex rel. K.C. Park Dist. v. County Ct. of Jackson County, 102 Mo. 531; State v. Wichita, 145 Kan. 377, 65 P.2d 595; City of Wichita v. Lewis, 155 P. 948. (13) The Ordinance is unreasonable, arbitrary and confiscatory, and constitutes a taking of the property of defendants without just compensation and without due process of law, in violation of the provisions of the Constitution of the State of Missouri, Sections 20, 21 and 30 of Article II, and of the Fourteenth Amendment to the Constitution of the United States, as pleaded in defendants' answer. Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409; Glencoe L. & C. Co. v. City of St. Louis, 341 Mo. 689, 108 S.W.2d 143; Mueller v. Hoffmeister, U. & L. Co., 343 Mo. 430, 121 S.W.2d 775; Ill McQuillin, Mun. Corp. (2 Ed. Rev.), sec. 1031, p. 422, sec. 1034, pp. 438, 442; Barrington v. City of Sherman, 155 S.W.2d 1008; Harmon v. City of Peoria, 373 Ill. 594, 27 N.E.2d 525; Anderman v. Chicago, 379 Ill. 236, 40 N.E.2d 51; Appley v. Com. of Bernard's Twp., 128 N.J. 195, 24 A.2d 805; Johnson v. Villa Park, 370 Ill. 272, 18 N.E.2d 887; State ex rel. Hardy v. S.Ct. King County, 284 P. 93; Tews v. Woolhiser, 352 Ill. 212, 185 N.E. 827; Hecht-Dann Const. Co. v. Burden, 124 Misc. 632, 208 N.Y.S. 299; Courdts v. Hutton Co., 146 Misc. 10, 262 N.Y.S. 539; Youngstown v. Kahn Bros. Bldg., 112 Ohio St. 654, 148 N.E. 842, 43 A.L.R. 662; State ex rel. Scandrett v. Nelson, 241 Wis. 438, 3 N.W.2d 765; American Tobacco Co. v. Mo. Pac. R. Co., City of St. Louis, 202 Mo. 656, 157 S.W. 502. (14) By the terms of the general Zoning Ordinance enforcement of the Ordinance rested upon the Building Commissioner and he is a necessary party plaintiff. Smith on "Zoning & Procedure," sec. 151; Commonwealth v. Fahey. 5 Cush. 408. (15) The general Zoning Ordinance provides, as a condition precedent to a civil action for enforcement of the Ordinance, that the violator must be served with an order to remove the violation within ten days and has failed to comply with the order. Sec. 23, General Zoning Ord. No. 35003 (Rec. p. 43).

Sylvan Agatstein for respondents R.C. Taylor, Katherine Taylor, Argo Landau, Edna Landau, William Schield, Emma Schield, Richard T. Shelton and Mildred Kotany; Joseph F. Holland and William R. Davis for respondent City of St. Louis.

(1) The appellants, having acquired their property in June, 1942, 14 years after the enactment of the amending ordinance, and being in willful violation of the zoning restrictions, should not now be permitted to assert technical defects in its passage to the detriment of persons who have relied and acted upon the presumed validity of a regularly enrolled law. Benequit v. Borough of Manhattan Beach, 13 A.2d 847; Ninth Street Improvement Assn. v. Ocean City, 100 A 568. (2) It is the policy of the courts to declare valid laws which have been long in effect when property rights have been acquired upon the strength of existing laws, although such laws if attacked in time might have been declared invalid. Shipp v. Klinger, 54 Mo. 238; 12 C.J., pp. 715, 716. (3) If such an attack were feasible, the general zoning law of the City of St. Louis, Ordinance No. 35003, would be likewise vulnerable because the notice of public hearing in connection therewith was in the same form and published in like manner as was the notice of this amendment. This, of course, would be contrary to public policy. Ex parte Seward, 253 S.W. 356. (4) The presumption of validity of enrolled laws is so strong as to entitle citizens to rely upon their effectiveness. State ex rel. Crow v. St. Louis, 169 Mo. 31, 68 S.W. 900; Cox v. Mignery & Co., 126 Mo.App. 669, 105 S.W. 675; Thompson v. St. Louis-S. F. Ry. Co., 69 S.W.2d 936; Wiget v. St. Louis, 337 Mo. 799, 85 S.W.2d 1038; Ewing v. Hoblitzelle, 85 Mo. 64; Ex parte Seward, supra. (5) The common counsels of municipal corporations are regarded as miniature legislative bodies and their ordinances are entitled to the presumptions indulged with respect to statutes enacted by the state legislature. Ball v. Fagg, 67 Mo. 481; Cox v. Mignery & Co., supra. (6) Although it is no...