The City of St. Louis v. Howard

• Decision Date: 23 December 1893
• Citation: 24 S.W. 772,119 Mo. 47
• Parties: The City of St. Louis v. Howard, Appellant
• Court: Missouri Supreme Court

24 S.W. 772

119 Mo. 47

The City of St. Louis v. Howard, Appellant

Supreme Court of Missouri, Second Division

December 23, 1893

Appeal from St. Louis Court of Criminal Correction. Hon. James R Claiborne, Judge.

Reversed and remanded.

T. J Rowe for appellant.

(1) Ordinance section 372 is unconstitutional and void; the power to pass it is not authorized by the charter. City v Clemens, 43 Mo. 404; Farmers' Loan and Trust Company v. Carroll, 5 Barb. 49. (2) The city failed to make a prima facie case against defendant; it failed to prove that defendant erected a slaughterhouse or caused one to be erected.

W. C. Marshall for respondent.

(1) The power of the municipal assembly to adopt section 372 is conferred by paragraph 6 of section 26 of article 3, of the city charter, and by paragraph 14 of section 26 of article 3, of said charter, and is a compliance by the municipal assembly with the requirements of section 34 of article 3, which enjoins upon it the duty of providing by ordinance for the effectual enforcement of the charter prohibition against the erection or location of a slaughterhouse within three hundred feet of a dwelling house previously built and inhabited, without the consent, in writing, of the owner and of the occupant of every such house. (2) It is a proper regulation and must be construed in connection with the provisions of section 34. The courts cannot assume that the municipal assembly will exercise any discretion in granting permission to A and refusing to B. The court must assume that the municipal assembly, when the consent is asked for the erection of a slaughterhouse, will obey the requirements of the city charter, and compel the applicant to show that he has complied with the provisions of section 34, by procuring the consent of the owners and occupants of every house within three hundred feet of the proposed slaughterhouse. (3) This case is wholly unlike that of Baithet v. New Orleans, 24 F. 563.

OPINION

Sherwood, J.

-- I. The defendant was summoned before the second district police court of St. Louis to answer to a charge of violating ordinance 372, which is as follows: "Hereafter no stone quarry shall be opened or brick kiln located, or soap factory, slaughterhouse, bone or rendering factory erected within the distance of three hundred feet of any dwelling house, built and inhabited before such opening, location or erection, without first having obtained permission so to do from the municipal assembly by proper ordinance. Any person, company of persons, firm or corporation violating any or either of the provisions of this section, shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than $ 100 nor more than $ 500." Rev. Ord. 1887, p. 583. And being there fined, appealed to the court of criminal correction with a like result, and has appealed here.

We see no objection to the validity of the ordinance, since it is fully authorized by the provisions of paragraph 6 of section 26 of article 3 of the charter, which...