Tebbetts v. McElroy, 1865.

• Decision Date: 01 March 1932
• Docket Number: No. 1865.,1865.
• Citation: 56 F.2d 621
• Parties: TEBBETTS et al. v. McELROY, City Manager, et al.
• Court: U.S. District Court — Western District of Missouri

56 F.2d 621 (1932)

TEBBETTS et al. v. McELROY, City Manager, et al.

No. 1865.

District Court, W. D. Missouri, W. D.

March 1, 1932.

Cyrus Crane and Richard Righter (of Lathrop, Crane, Reynolds, Sawyer & Mersereau), both of Kansas City, Mo., for petitioners.

George Kingsley, City Counselor, and Marcy K. Brown and Joshua Barbee, Asst. City Counselor, all of Kansas City, Mo., for defendants.

OTIS, District Judge.

The plaintiffs are and for several weeks have been engaged in conducting what is called by them a "walkathon," which appears to be a species of endurance contest. They have offered a prize of $1,000 to that couple, man and woman, that longest continues walking. In each hour of every day the contenders walk three-quarters and rest one-quarter of the hour. They walk around and around in a small rectangular space about which, on three sides, grand stands have been erected. To these spectators are admitted. The enterprise has turned out to be profitable to the plaintiffs. Marvelous to say, people seem to be entertained by the spectacle and are willing to pay for their entertainment.

The contest was initiated in a building at least semifireproof in construction with the full knowledge and consent of the municipal authorities of Kansas City. That consent was sought in advance by the plaintiffs, who contemplated investing and did invest $15,000 in the enterprise. Extraordinary precautions were taken against possible dangers of any kind. The plaintiffs did everything they were asked to do. During the time the contest has been going on representatives of the various departments of the city government have visited it frequently. The plaintiffs had received no intimation from any of them that anything was wrong with the contest or with the arrangements under which it was conducted. Although the contest had been in progress for almost three weeks, not the slightest suggestion that there was a fire hazard incident to the enterprise had been made to the plaintiffs by any one connected with the city.

On February 22, 1932, one of the defendants, Dr. Lee Johnson, the director of the fire department, visited the building where the "walkathon" is held. He found the grand stands filled with spectators. He surveyed the premises. After his inspection he suggested to the plaintiffs that a rope barrier be moved a short distance. It was promptly moved.

On the evening of February 23, 1932, this defendant, accompanied by certain others of the defendants, returned. The grand stands again were filled. Nearly two thousand persons who had paid admissions were in their seats.

The defendants looked about a little, summoned the plaintiffs, peremptorily ordered them to get the audience then in attendance out of the building within five minutes, to close the place to the public and to keep it closed, and threatened them with arrest and imprisonment if they did not instantly comply with these directions. The place was emptied promptly and admission prices were returned.¹

The present bill was filed February 24th. On the same day, after notice, a restraining order was issued. The plaintiffs' application for a temporary injunction was set for hearing on February 25th. At the request of the defendants the hearing was postponed until February 26th. Evidence was heard on February 26th and February 27th. The matter was submitted.

1. It goes without saying that no individual as such lawfully may destroy the business of another by threat or use of force.

2. To any one who has the slightest knowledge of the provisions of the Constitution it need not be said that neither the government of the United States nor that of any state nor that of any subdivision of any state may deprive any person of liberty or property without due process of law.

No servant of the people in public office arbitrarily may say to any person, "Your business is closed." Not all the forces of government may lock the door of the humblest shop save in accordance with the law of the land, for "this is a government of laws and not of men."

These principles, which are founded in natural justice, already were old when Magna Charta was wrested from a tyrant king. They are written in the Bill of Rights of every nation of freemen.

3. Learned counsel for defendants do not question these principles, but they say there is a statute somewhere, some provision of the city charter, some ordinance, that vests the director of the fire department in Kansas City with the power immediately to close any place of business, any hall, or building where people may assemble, if, in his judgment, danger from fire exists in that place, that hall, that building. In effect they say that by virtue of this law this official may go into a mercantile establishment, look about awhile, and seeing goods upon the shelves which, if fired, will burn, seeing counters and floors of wood, seeing the aisles crowded with customers, as at the Christmas season, conceiving in his mind there is a fire hazard present, may send for the proprietor and tell him to get his customers out at once and to lock his doors. He may go into a church, crowded with worshipers, perhaps beyond the seating capacity of the church, and if he thinks there is a fire hazard there, may interrupt the clergyman in the middle of his sermon, drive the congregation into the street, and decree that the edifice may not be used again for religious worship.

The simple answer to all of this is that there is no statute, no charter provision, no ordinance, expressly or by implication, vesting this official or any other with any such power as this.²

The utmost of summary authority which any officer of any fire department ever has been given is to order the evacuation of a building when a fire already has begun. In Kansas City the fire chief (not the director of the fire department) may order the destruction of a building, although it is not yet touched by fire, if it is in the path of a present conflagration, the spread of which it is likely to promote. But nowhere in the books do I find any reference to any legislative act which vests an administrative officer with authority to order immediate discontinuance of any lawful use of any building if only he imagines there might be in that building a fire at some future time. What a deadly weapon of oppression such a legislative act, if there were one, would be! If such a law could anywhere be found it would be no law, so plainly would it contravene the supreme law of the Constitution.³

The plaintiffs are nonresidents of Missouri. The amount involved exceeds $3,000. This court has jurisdiction. The plaintiffs have no adequate remedy at law. It is a case therefore in which they are entitled to relief in equity.

There was some suggestion in the...