Weisberg v. Boatmen's Bank
| Decision Date | 20 December 1919 |
| Citation | 217 S.W. 85,280 Mo. 199 |
| Parties | ISAAC WEISBERG, Appellant, v. BOATMEN'S BANK |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.
Reversed and remanded.
Leonard & Sibley, Glen Mohler and Geo. L. Stemmler for appellant.
(1) Sections 101, 38 and other sections of Ordinance No. 19991 applied to the building mentioned in the petition in this case. Cochran v. Preston, 108 Md. 220; Carroll v. City of Lynchburg, 84 Va. 803. (2) The altering enlarging, raising, building upon and repairing of said building, as described in the petition, constituted a violation of said sections of said ordinance. Cochran v Preston, 168 Md. 220; People v. Marley, 2 Wheeler's Criminal Cases, p. 74; Attorney-General v. Williams, 174 Mass. 476; Delione v. Commissioners, 55 N. J. L. 108.
Lehmann & Lehmann and Fauntleroy, Cullen & Hay for respondent.
(1) Courts cannot take judicial notice of municipal ordinances, however great the municipality. Peterson v. United Rys. Co., 270 Mo. 67. In order to form the basis of any action and to give the court the right to consider the ordinance or the sections relied upon in passing upon plaintiff's petition, the sections relied upon should be set out in full, or at least in substance. City of St. Louis v. Stoddard, 15 Mo.App. 173; Hirst v. Ringen Real Estate Co., 169 Mo. 194. (2) Sections 41 and 75 of the ordinance, even if applicable to this case, are unconstitutional and void, because they arbitrarily require a permit from the Commissioner of Public Buildings, without regard to any requirements as to the character of the work or materials used. State v. Tenant, 15 L.R.A. 423; City of Sioux Falls v. Kirby, 25 L.R.A. 61; Commonwealth v. House, 198 S.W. 218, 177 Ky. 829. These sections give the Commissioner of Public Buildings "a roving commission to enforce" the ordinance. Merchants Exchange v. Knott, 212 Mo. 616; Corrigan v. Kansas City, 211 Mo. 654; St. Louis v. Heitzeberg, 141 Mo. 375. (3) The sections of the ordinance pleaded did not apply to defendant's building, so as to make it a first-class building, because it was erected in 1889, long prior to the passage of the ordinance. As the defendant's building was greater than ninety feet in height, the ordinance did not require it to be made a building of the first class. Section 38 of the ordinance does not enlarge Section 101, but so far as defendant's building is concerned Section 101 defines the extent to which Section 38 is applicable to defendant's building. (4) The authorities cited by the appellant are not in point in this case, because the courts in those cases were passing on ordinances containing entirely different provisions than the ordinance in question in this case. (5) Even if the ordinance were applicable, the alterations were not of such character as to constitute a violation of the ordinance. Contas v. City of Bradford, 206 Pa. 291.
This is an action for damages for injuries appellant alleges he suffered as a result of the burning of a building in St. Louis which respondent owned and, in part, occupied as a banking house. The remainder of the building was occupied by the Missouri Athletic Club, respondent's lessee. A general demurrer to the petition was sustained, and judgment rendered after appellant refused to plead further. The questions presented by counsel are such that it is not necessary to set out the petition in full. The basis of the action is the alleged violation of the provisions of certain sections of city ordinances pertaining to buildings in St. Louis. These provisions will be set out sufficiently in connection with the consideration of the questions counsel discuss.
I. In his statement of the case appellant includes ordinance provisions not pleaded either in full or in substance. These cannot be considered. [State ex rel. Oddle et al. v. Sherman, 42 Mo. 210; Peterson v. United Rys., 270 Mo. 67, 192 S.W. 938.]
II. Was respondent's building such that the ordinance pleaded applied to it? The petition alleges that the structure was erected in 1889. It consisted of seven stories and was then more than ninety feet high. The ordinances relied upon in the petition were passed in 1903. The building ordinance of 1903 provides (sec. 38) that "no building already erected (or hereafter to be erected) in the City of St. Louis, shall be enlarged, raised, altered or built upon in such manner that were such building wholly built, or constructed after the passage of this ordinance, it would be in violation of any of the provisions of this article." Section 40 provides that "no wall, structure, building or parts thereof, shall hereafter be built, constructed, altered or repaired, except in conformity with the provisions of this article." Section 100 sets forth the character of construction required in what are denominated "first-class" buildings. The petition alleges that the building in question, when tested by the provisions of Section 100, was not, either before or after alteration, a building of that class. Section 101 of the ordinance provides: "Any building hereafter erected, altered or enlarged to a height greater than ninety feet above grade" (the distance from sidewalk level to the highest part of the building) "shall be a building of the first-class and shall comply in its construction with all the provisions and requirements contained in this article relating to buildings of said class." Other sections require permits for building, etc., and fix penalties for failure to secure them.
The briefs do not question the authority of the city, in the exercise of its delegated police power, to impose restrictions upon the alteration, reconstruction, repair and augmentation of buildings of non-fire-proof construction situate in congested districts. The first question presented is whether the ordinance pleaded applies to the building described in the petition. It is not denied that the allegations of the petition show that the building in question is not a "first-class building" as defined in the ordinance section set out in the petition. It is urged that Section 101 of the ordinance, as pleaded, does not purport to apply to any building which was ninety or more feet high when the ordinance was passed in 1903. The argument is that the words "any building hereafter altered or enlarged to a height greater than ninety feet above grade" includes only such buildings as, prior to the enactment of the ordinance, were less than ninety feet in height and were raised to a greater height than ninety feet by the alteration or enlargement. Let it be conceded that a literal construction of the ordinance language would support this contention. It is also true that this language is susceptible of...
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