263 Mo. 516 | Mo. | 1915
The petition was filed in the circuit court for Butler county, March 26, 1910, impleading with the city, as defendant, George Luther, its street commissioner. It states that on April 27, 1908, the defendant city, by its city council, granted plaintiff permission to erect a building of wood and iron on the west half of lot sixty-one in said city, of which he was seized as owner. That on. the 20th day of September, 1909, the mayor and council granted him the further permission to construct on said building, which had then been erected, an iron roof, which he constructed in accordance with such _permission. The plaintiff’s right to erect and maintain the building under the ordinances pleaded, as well as the acquiescence of the city therein and its continued and present use for business purposes by plaintiff and his tenants, are fully and particularly set forth, and the petition proceeds as follows:
“Plaintiff, however, states that notwithstanding all of the matters hereinbefore pleaded and set forth, the said city of Poplar Bluff, by and through its duly elected, qualified and acting mayor and city council, on the 21st day of February, 1910, caused to be passed and enacted, the following ordinance, to-wit:
a ‘ORDINANCE NO. 240. BILL NO. 264.
'“An ordinance declaring the building located on the west half of lot 61 of the original town (now city) of Poplar Bluff, Missouri, to be a nuisance and ordering its abatement and removal.
“ ‘Be it ordained Toy the City Counoil of the city of Poplar Bluff, Missouri, as follows:
“ ‘Section 1. That the building located on the west half of lot 61 of the original town (now city) of Poplar Bluff, in Butler county, Missouri, be and the same is hereby condemned and ordered abated and removed within ninety days after the service of notice of the passage of this ordinance on the owner, or agent, in. charge of said building, for the reason that said building is constructed of combustible material and therefore a nuisance, and was built in violation of sections 313, 314 and 315 of the Revised Ordinances of the city of Poplar Bluff, of the revision of 1898, and ordinance No. 24.
*524 “ ‘Section 2. That if said building shall not be abated and removed within the time provided in this ordinance the street commissioner of the city of Poplar Bluff is hereby ordered and directed to abate and remove said building, after the lapse of the time provided in this ordinance.
“ ‘Section 3. That the owners, or agent in charge of said building, failing to abate and remove said building within the time specified by this ordinance, after notice herein provided for, shall be deemed guilty of a misdemeanor and shall be fined not less than five dollars nor more than one hundred dollars for each offense.’ ”
It then alleges with particularity that the ordinance is void for' lack of power under the city charter to pass it; because the city is estopped to deny the plaintiff’s right to maintain the building; because it is in violation of that provision of section 10, article 1 of the Constitution of the United States, which forbids the States to pass any ex post facto law, or law impairing the obligation of contracts; also of the 5th and 14th amendments to the Constitution of the United States; and of sections 15, 20, 21 and 30, of article 2, and section 53 of article 4, of the Constitution of the State of Missouri. That the building is not constructed of combustible material, nor is it a nuisance as stated in the ordinance quoted, but, although the ordinance is void, the city and defendant Luther, its street commissioner, are threatening and preparing, under its provisions, to not only tear down and destroy said building, but to arrest and prosecute plaintiff under the provisions of the third section thereof, all to his irreparable damage and injury, for which he has no adequate remedy at law. That the building is worth ten thousand dollars, and is occupied by tenants of plaintiff engaged therein in lawful and proper lines of business. The prayer is as follows:
“Wherefore, plaintiff prays that a writ of injunction issue from this court enjoining and restraining said city of Poplar Bluff and its co-defendant, George Luther, the duly appointed, qualified and acting street*525 commissioner of said city, and all other officers, agents and employees of said city from further proceedings to enforce the provisions of said ordinance No. 240 hereinbefore sot forth, and from abating, tearing down, removing or destroying plaintiff’s building hereinbefore described, and from trespassing upon or in anywise interfering with plaintiff’s enjoyment of his said premises, and from interfering in any manner with the possession or title of plaintiff of, in or to said lot and tract of land and the building situate thereon, and for such other and further relief as to the court shall seem meet and just.”
A preliminary restraining order was granted, and the cause progressed so that on November 3rd the defendants filed an amended answer denying each and every allegation not therein expressly admitted and stating that defendant city is a city of the third class, and as such on March 6, 1899, passed a revision of its ordinances containing the following sections also set out in the petition:
“Section 313. All that part of the city of Poplar Bluff comprised within the following described boundaries shall he known as the ftre limits of said city: Beginning at the northeast corner of lot 21, in the city of Poplar Bluff, Missouri, running thence west with the south boundary line of Oak street to Fifth street; thence south along the east boundary line of Fifth street to Ash street; thence east along the north boundary line of Ash street to the main line of the St. Louis, Iron Mountain & Southern railroad; thence northeasterly with the St. Louis, Iron Mountain & Southern railroad to the western line of Water street; thence north along the west line of Water street to the northeast corner of lot 21, to the place of beginning.
“Section 314. Hereafter it shall be unlawful for any person, without obtaining a special permission from the mayor and city council, to construct, build or place, or cause to be constructed, built or placed, any edifice, building, structure or shed, the outer walls of which are in whole or in part made of wood, in that part of the city embraced within the fire limits, as described in the preceding section.
“Section 315. Whenever any person or persons shall desire to construct, build or place any wooden building within the fire limits of the city of Poplar Bluff as hereinbefore described,*526 such person or persons shall file with the mayor and council an application in writing, setting forth the location, size and manner of construction of the proposed building, and the purposes for which it is to be used. Such application, must be accompanied by the written consent of all' persons owning property within the block in which such proposed building is to be erected or placed. Upon the filing of such application and written consent of the property owners aforesaid, the council may, by resolution, authorize the construction or erection of the desired wooden buildings within the said fire limits: Provided, That the names of the members voting for and against said resolution shall be entered on the journal, and a vote of' a majority of all the members elected to the council shall be necessary for its passage.
“Section 316. Any person who shall build, construct or place, or suffer any wooden building to be constructed, built or placed within the fire limits of the city of Poplar Bluff contrary to the provisions of the preceding sections shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than twenty-five nor more than one hundred dollars, and a like fine for every week that he shall continue in violation of the said section.
“Section 317. Whenever any wooden building shall be constructed, built or placed within the fire limits of this city contrary to the provisions of this ordinance, it shall be the duty of the mayor to issue an order requiring the owner, occupant, person in charge, or builder thereof, to cause such building to be taken down or removed outside of the fire limits. If the person so notified shall refuse or neglect for the space of ten days to comply with the requirements of the order issued by the mayor as herein provided, then the mayor shall cause such building to be taken down or removed beyond the fire limits, and the expenses incident thereto may be recovered of the owner of such building by suit in any court of competent jurisdiction.
“Section 342. Whoever shall violate any provision of this ordinance wherein no specified penalty is provided shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one' nor more than one hundred dollars.”
Also an amendment to section 313, passed November 20, 1899, only changing the description of the boundaries. Whether the property in question was within the original boundaries does not appear in the pleadings, and makes no difference. The answer then proceeds as follows:
*527 “Defendants further state that on the 20th day of April, 1908, and while the above ordinances were in full force and effect, the plaintiff W. B. Hays, being-desirous of erecting a wooden structure which he called an “Air Dome” upon the west half of lot 61 in the original town, now city of Poplar Bluff, Missouri, and which said lot was within the fife limits of defendant city, filed with defendant’s city clerk the following document, to-wit:
“ ‘April 6, 1908.
‘To the Mayor and City Council,
Gentlemen: We, the undersigned property owners are willing for W. B. Hays to erect an Air Dome on lot 61 — stage to he huilt of iron:
W. B. Hays; Mbs. J. L. Paeham, By W. B. Hays, Agt.; Geo. D. Kirkhoff; W. J. Kennedy; State Bank of P. B., hy W. W. Tubneb, Cashier; J. H. Dates, By E. Bacon, Agt.; Mes. K. M. Arrendare; Mbs. Etta C. Bratt, By C. E. Kinder, Agt.’
“Defendants further state that said plaintiff, W. B. Hays, failed and neglected to file with the mayor or city council an application in writing for permission to erect said wooden structure, setting forth its location, size and manner of construction, and the purpose for which it was to be used, as required by the ordinances of the defendant city, but on the contrary, defendants aver that said plaintiff, W. B. Hays, filed no application whatever for said permit other than the document set out in full above, which purports to be the written consent, to the construction of said building, of all persons owning property in the block in which said wooden structure was to be erected, but which in truth and in fact was not signed by all persons owning property in said block and square in which said building was to be erected, but on the contrary was signed by but a small number of the persons who owned property in said block, and defendants aver that the plaintiff at no time filed with the proper officers of the city the ‘written consent of all persons owning prop*528 erty in the block in which said proposed building was to be erected’ as required by defendant city’s ordinances. ’ ’
It then states in substance that the following entry appears upon the journal of the proceedings of the city council as of April 27,1908:
“W. B. Hays presented to the council the consent of all the property owners in lot — of the old town and asks for permission to huild an ‘Air Dome.’
“Air Dome.
“W. B. Hays now presents to the council the consent of all the property owners in lot 61 of the old town for him to huild an ‘Air Dome’ on said lot, and now asks permission of the council which is granted.”
It is alleged that this entry was made by the clerk without entering the names of members voting for and against it on the journal, without the consent of all the property owners as required by law and without a vote having been taken thereon as required by law, and in violation of the ordinances of the’ defendant city in that behalf, and of his duties as city clerk, and that it was void. That after the entry of this order the plaintiff, without the consent of the mayor and city council, and without the consent of all persons owning-property in the block, wrongfully, in violation of the city ordinances, and in disregard of the lives and property of the inhabitants, built on said lot a wooden structure, the outer walls of which were made of wood, with a wooden stage, chairs and benches, a wooden confectionery stand and other combustible articles too numerous to mention; and afterwards in the same-fall wrongfully and without permission of the city or consent of all the property owners, put in a wooden floor, stretched a tent o-\ er it for a roof, and changed the name of the structure to “Tanguay Skating Rink,” and operated it as a skating rink until the fall of 1909, when he appeared before the council and deceived it
The coüncil once more confided in him, and were again deceived. They were so impressed by his persuasive diction that it did not occur to them to ask him to put it down in black and white, but without any written application they proceeded to write upon their journal as follows:
“September 20, 1909.
“L. & Brandon. On Application of W. B. Hays to permit him to put an iron roof on Tanguay Skating Rink. Permission is granted and carried if the proper petition of property owners is filed.”
And which said journal entry was recorded upon the record of the council proceedings as follows:
“Buildino Permit.
“On motion of Langley and seconded by Brandon. It is ordered by the council that a permit be granted to W. B. Hays to erect and place an iron roof on the Tanguay Skating Rink. Said permission is granted if the proper petition of the property owners is secured and filed before commencing the work.”
This order, the answer states, was obtained by deceit, and is void. Afterwards, on September 28th, he filed in the office of the city clerk the following:
"To the Honorable Mayor and City Council of the city of Poplar Bluff:
“We, the undersigned citizens and property owners, owning property in lots sixty-one (61) and sixty-two (62) of the city of Poplar Bluff, in which is located the Tanguay Skating Rink, hereby petition your honorable body to permit and grant Mr. W. B. Hays, manager of the Tanguay Skating Rink, the privilege of placing upon the Tanguay Skating Rink an iron roof.
State Bank oe P. B., By W. W. Turner; Etta Goss Blatt; John H. Dates, By E. Bacon, his Agt.; Bacon Realty Co., By E. Bacon, Prest.; Mrs. J. J. Parham, By W. B. Hays, Agt.; C. M. Ducker and Sons; Kate M. Arrendahe.”
263Mo34
“Defendants further state that immediately after the passage and approval of the above ordinance, the defendant city’s mayor, John W. Berryman, issued an order on the plaintiff to abate and remove said building, by having served on plaintiff a true copy of the above ordinance, ordering plaintiff to abate said building and to remove the same without the fire limits of the defendant city within ninety days after the passage of said ordinance, but defendants state that the plaintiff although thereto requested according to law and the ordinances of the defendant city, neglected and refused to remove said building within said time, but stated, averred and threatened that he intended keeping and maintaining said building on said lot permanently, and still refuses and neglects to remove the same. ’ ’
The plaintiff replied by general denial.
A trial was had and testimony taken which fills about three hundred and forty pages of the abstract. It will be unnecessary to examine this.
In considering such questions we usually begin with some form of the ancient and indubitable proposition that, under our system of government, municipal corporations possess no powers or faculties not conferred upon them, either expressly or by fair implication, by the law which creates them, or by other stat
That this provision gives ample power to the legislative department of the city government to establish districts in which no building of other than incombustible materials shall be constructed is evident; but to construe it to give power to establish districts in which buildings of combustible or incombustible materials may be constructed, as may be arbitrarily determined by the mayor and council in each particular case, requires us to reject its broadly prohibitive words, thus rendering it meaningless and inoperative, or to add words of permission which would defeat the evident object of the enactment, which is that all persons owning property within the limits established, and the general public as well, should be protected against the menace of combustible structures within such limits. It bears no evidence, as does the ordinance, that the Legislature had in mind the idea that each block should stand alone in the matter of such protection, and the record of disastrous fires in cities furnishes no
The mayor and city council of Poplar Bluff, under the charter power we have quoted, undertook to establish fire limits within which they attempted to make it unlawful without a special permission from the mayor and city council, “to construct any edifice, building, structure or shed, the outer walls of which are in whole or in part made of wood.” The combustible character of the structure seems to be entirely ignored. A shed with metal angles or gas pipe for framework and tarred paper for walls and roof would evade the description of the prohibited structures as completely as brick or stone with fireproof roof. But the vice most important in this ordinance is its general scheme by which the city council places its paternal hand upon the interests of the people of the city with the manifest intention of gathering to itself the undefined and arbitrary power to determine who shall have the special privilege of erecting buildings of combustible materials in these areas, and who shall be denied, without being entitled to the courtesy of a reason. This cannot be done. The reason is well expressed by the Supreme Court of Indiana, in Elkhart v. Murray, 165 Ind. 304, as follows: “If an ordinance upon its face restricts the right of dominion which the owner might otherwise exercise without ques
"We have considered these questions at greater length than we would otherwise have thought necessary because the decision of this court in St. Louis v. Fischer, 167 Mo. 654, is, we think, inconsistent with the conclusion at which wé have now arrived. Although that case is irreconcilable with the Russell case, supra, in which the learned judge who wrote it concurred, and which brings to its support many well considered adjudications of this and other courts, it does not overrule nor even mention it. The one case cited in the Fischer case to the points we have considered, is Railroad v. Kirkwood, 159 Mo. 239, in which & condition contained in an ordinance of the town of Kirkwood giving a railroad company the right to build and operate its road upon a street, was held to be valid. There is evidently no similarity between the two cases. In the Kirkwood case, the town in giving the use of its own street which it may give or withhold to any extent it pleases. In this case the city has nothing to give, but is appropriating the property of the individual to the use of the people through the exercise of the police power of the State, and must look to the grant of that power for the exact limits of its right. So far as the Fischer case conflicts with the Russell case, supra, it is disapproved, and the doctrine of the latter, as well as of St. Louis v. Dreisoerner, supra, and St. Louis v. Atlantic Quarry Co., supra, is approved.
Our statute (R. S. 1909, see. 2534) declares, probably in conformity to the rule of the'common law, that the remedy by writ of injunction shall exist in all cases where an irreparable injury to real or personal property is threatened, and, to prevent the doing of any legal wrong whatever whenever in the opinion of the court an adequate remedy cannot be afforded in damages. One of the most common uses of the writ is to prevent injury to or destruction of property by the unauthorized or wrongful exercise of police powers by municipal corporations. In Life Insurance Co. v. St. Louis, 98 Mo. 422, it was successfully used to prevent the destruction of a building by the city in opening or improving a street. In Boyd v. Frankfort, 117 Ky. 199. it was used to prevent the destruction of a church without the consent of the common council as required by ordinance. The court said (p. 213): “There can be no doubt of the right of appellants to maintain this action. The law authorizing it has been repeatedly declared by this court. Thus in the City of Newport v. Bridge Co., 90 Ky. 193, it was held that: ‘If a city ordinance is invalid, one who is affected by it has the right, in order to prevent irreparable injury and a multiplicity of prosecutions to go into a court of equity for relief.’ ” In Barthet v. New Orleans, supra, in sustaining this remedy the court said: “It is not enough that there is a remedy at law; it must be plain and adequate ; or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” The excellence of the equitable remedy in a case like this is that it admits of the doing of complete justice by preserving the status without the destruction or loss of property which must precede and sustain the action for damages. Its selection in such cases is commendable.
The foregoing opinion of Brown, G., was adopted by Division One, all the judges concurring except Bond, J., who dissented. The cause was transferred to Court in Banc because the opinion conflicts with the decision of Court in Banc in St. Louis v. Fischer, 167 Mo. 654.