The City of St. Louis v. Flynn

• Citation: 31 S.W. 17,128 Mo. 413
• Parties: The City of St. Louis v. Flynn et al., Appellants
• Decision Date: 21 May 1895
• Court: Missouri Supreme Court

31 S.W. 17

128 Mo. 413

The City of St. Louis v. Flynn et al., Appellants

Supreme Court of Missouri, Second Division

May 21, 1895

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

Reversed.

Louis A. Steber for appellant.

(1) To "fail and refuse to comply with an order of the health commissioners" or board of health, is not of itself, and can not be made, an offense. Hutton v. Camden, 39 N J. L. 122; Bates v. District, 8 D. C. 433; Mayor v. Board of Health, 31 How. Pr. 385; Howard v Robbins, 1 Lans. (N. Y.) 63. (2) "It is certain that towns may not in their corporate capacity proceed by adversary methods before their own trustees to adjudge a particular property or structure a nuisance, and by order against the owner secure its abatement. American Furniture Co. v. Batesville, 35 N.E. 682. (3) A man can not be made a criminal through the acts of others over whom he has no control. Authorities supra; In re Jacobs, 98 N.Y. 98; Everett v. Marquette, 53 Mich. 450. (4) The board of health, in the absence of a law or ordinance on the subject, has no power to declare what shall constitute a nuisance. A law can only emanate from the legislative will. Blackstone's Comm., *pp. 53-55; 1 Kent's Comm., *p. 447; Cooley's Const. Lim. [6 Ed.], p. 137, note 1; Mayor v. Board, 31 How. Pr. 385; Schuster v. Board of Health, 49 Barb. 450; New Orleans v. Blineau, 3 La. Ann. 689; Tugman v. Chicago, 78 Ill. 405. (5) The legislature itself can not, constitutionally, declare a given use of a particular property as harmful and a nuisance. This would be exercising a judicial function. Quintini v. Bay St. Louis, 64 Miss. 483; Tiedeman on Lim. Pol. Pow., sec. 122a, p. 426; Wood on Nuis. [3 Ed.], sec. 744, at p. 976; Evansville v. State, etc., 118 Ind. 426; Coe v. Schultz, 47 Barb. 64. (6) The abatement of a nuisance must not exceed its necessity. Babcock v. Buffalo, 56 N.Y. 268; Welch v. Stowell, 2 Doug. (Mich.) 332; Rogers v. Barker, 31 Barb. 449; Robert v. Rose, L. R. 1 Exch. 81; Veazie v. Dwinel, 50 Me., at p. 496; Ruff v. Philips, 50 Ga. 130; Green v. Lake, 54 Miss. 541. (7) The "red" notice being an order to appear before the board of health is directed to Thomas Flynn and Christian Winter. Thomas Flynn is served and Christian Winter is not. This does not bind Winter. Demoss v. Brewster, 4 Smed. & M. 661; Pittman v. Bank, 1 How. (Miss.) 527; Murfree on Sheriffs, sec. 849; Morgan v. Richardson, 16 Mo. 409; Fairbanks v. Kraft, 43 Mo.App. 121. (8) A return of service on "a member of his family over the age of fifteen years," without naming or describing such "member" is void for uncertainty. Montgomery v. Brown, 7 Ill. 584; Townsend v. Griggs, 3 Ill. 366; Boyland v. Boyland, 18 Ill. 552; Tavenor v. Reed, 10 Iowa 416; Converse v. Warren, 4 Iowa, 170; Davis v. Burt, 7 Iowa, 58; Pilkey v. Gleason, 1 Iowa, 86; Gilbreath v. Kuykendall, 1 Ark. 50; Dawson v. Bank, 3 Ark. 505; Parks v. Weems, 9 Ark. 439; also cas. cit. vol. 11, U.S. Dig. (1st Series) p. 256, sec. 1012.

W. C. Marshall for respondent.

(1) There can be no doubt of the power of the legislature, or of the municipalities deriving their power from the legislature, to make police regulations designed to promote the health and morals of the community. St. Louis v. Pitts, 53 Mo. 582; St. Louis v. DeBar, 58 Mo. 395. (2) It is competent to authorize or to delegate the police power of the city. It can authorize the removal of a nuisance by a summary proceeding without a trial by jury. Kincaid's Appeal, 66 Pa. St. 411; Campbell v. Kansas City, 102 Mo. 344; Butchers' Union Co. v. Crescent City Co., 111 U.S. 746; Fertilizing Co. v. Hyde Park, 97 U.S. 659; Wate v. Fisher, 52 Mo. 177. (3) And anything which is offensive to sight, smell or hearing, erected or carried on in a public place where people dwell or pass, have the right to pass, to their annoyance, or anything that renders the inhabitancy or enjoyment of one's premises unconfortable is a nuisance. Hackey v. State, 8 Ind. 494; State v. Ball, 59 Mo. 321; Smith v. McCorrathy, 11 Mo. 518; Welton v. Martin, 7 Mo. 307; King v. White, 1 Burr. 333; Attorney-General v. Everett Booming Co., 34 Mich. 462. (4) There is no merit in the contention that the summons is void because it was served on a member of the family of the defendants, without specifying which member. Bank v. Altheimer, 91 Mo. 190. (5) Section 6 of article 12 of the charter provides that the "notice shall be served upon the owner or agent having charge of said property, in the same manner as writs of summons are required to be served in civil cases." Such a service is good in a civil case. Par. 3, sec. 2017, R. S. 1889. (6) The board of health acted only in a quasi-judicial manner, and its judgment of condemnation was, prima facie, conclusive. The question of fact of whether defendant's premises were in fact a nuisance having been submitted to and determined by the court, there is no room for complaint on the part of the defendant. 22 Am. and Eng. Encyclopedia of Law, 134; Odowr v. Causey, 59 Ga. 608.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

This proceeding was commenced in the second district police court of the city of St. Louis to collect a fine from the defendants for the violation of a city ordinance of said city, number 14000, secs. 418, 429, 434, 441, 442, 443 and 444, approved April 12, 1887. The complaint is, substantially, as follows:

"City of St. Louis, Mo., Sept. 22, 1891.

"Thomas Flynn and Christian Winter, composing the firm of Flynn & Winter, to the city of St. Louis, Dr., to five hundred dollars for the violation of an ordinance of said city, entitled 'An ordinance in revision of the ordinances of the city of St. Louis, and to establish new ordinance provisions, for the government of said city,' being ordinance number 14,000, chapter 14, article 10, sections 418, 429, 434, 441, 442, 443, 444. Approved April 12, 1887, in this, to wit:

"In the city of St. Louis and state of Missouri on the twenty-second day of September, 1891, and on divers other days and times prior thereto, the said Thomas Flynn and Christian Winter, composing the firm of Flynn & Winter, the defendants, being the owners, managers, agents, lessees, tenants and occupants of premises number 5341 Hall street, city block number 3406, in the city of St. Louis, and state of Missouri, on the twenty-second day of September, A. D. 1891, and at divers times prior to that time, failed and refused to comply with an order of the health commissioner in and for the city of St. Louis, which said order was issued against, and legally served upon, said defendants on the tenth day of September, A. D. 1891, commanding the said defendants, within ten days from the service thereof, to remove, abate or discontinue a certain nuisance, then and there existing in and upon said premises, to wit: the filthy rendering establishment and filthy drain on public and private property, by discontinuing the said filthy drain on public and private property, and by discontinuing the discharge of noxious vapors from the building, and by thoroughly cleaning said premises inside and outside, and said defendants did then and there fail and neglect within the time specified in said notice, and have up to this twenty-second day of September, 1891, failed and refused to show good cause to said board of health and said health commissioner, why they, the said defendants, aforesaid, could not, or ought not, to comply with the said order; said filthy rendering establishment and said filthy drain so owned, managed and conducted by Thomas Flynn and Christian Winter, defendants, as aforesaid, and situated on the property as aforesaid, having been declared officially and of record by said board of health to be a nuisance and detrimental to the public health."

Along with the complaint there were filed a "red notice" and a "white notice," the former dated August 13, 1891, being in the nature of a citation to defendants to show cause before the board of health on the twenty-seventh of August, 1891, and the latter was a notice that the board of health on August 27, 1891, had declared their establishment a nuisance. The return on the "red notice" was as follows:

"Executed this notice, in the city of St. Louis, this seventeenth day of August, 1891, at the hour of 5:55 o'clock P. M., by delivering a true copy of the same to Thomas Flynn, a member of the firm of Flynn and Winter.

"Emil Thomas, Marshal,

"By C. H. Adams, Deputy."

And that on the "white notice" in these words:

"Executed this notice in the city of St. Louis this tenth day of September, 1891, at the hour of 4 o'clock P. M., by delivering a true copy of the same at the usual place of abode of the within named defendants Thomas Flynn and Christian Winter with a member of their family over the age of fifteen years.

"Emile Thomas, Marshal,

"By G. Hoffman, Deputy Marshal."

The defendants duly appeared in the police court, a trial was had, and on November 21, 1891, defendants were fined $ 100, and on the same day appealed to the court of criminal correction of the city of St. Louis, and filed their bond. On reaching the court of criminal correction, the defendants demurred on eleven different grounds, their demurrer was overruled, and on March 30, 1892, the cause was tried before the court on its merits.

The assignments of error are nineteen in number, covering a discussion of the law of nuisances in extenso, and raising a number of constitutional propositions.

I. It is not contended by the city counselor that the defendants' business is a nuisance per se, and it will, therefore, not be profitable to review the cases defining what is, and what is not, such a nuisance.

While the complaint charges in general words a...