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west with the south boundary line of Oak, building to be taken down or removed outstreet to Fifth street; thence south along side of the fire limits. If the person so the east boundary line of Fifth street to notified shall refuse or neglect for the space Ash street; thence east along the north of ten days to comply with the requireboundary line of Ash street to the main ments of the order issued by the mayor as line of the St. Louis, Iron Mountain, & herein provided, then the mayor shall cause Southern Railroad; thence northeasterly such building to be taken down or removed with the St. Louis, Iron Mountain, & South- beyond the fire limits, and the expenses ern Railroad to the western line of Water incident thereto may be recovered of the street; thence north along the west line owner of such building by suit in any court of Water street to the northeast corner of of competent jurisdiction.” lot 21, to the place of beginning.

"Section 342. Whoever shall violate any "Section 314. Hereafter it shall be unlaw. provision of this ordinance wherein no speciful for any person, without obtaining a spe- fied penalty is provided shall be deemed cial permission from the mayor and city guilty of a misdemeanor, and upon conviccouncil, to construct, build, or place, or tion thereof shall be fined not less than one cause to be constructed, built, or placed, nor more than one hundred dollars." any edifice, building structure, or shed, the Also, an amendment to § 313, passed Noouter walls of which are in whole or in part vember 20, 1899, only changing the descripmade of wood, in that part of the city em- tion of the boundaries. braced within the fire limits, as described Whether the property in question was in the preceding section.

within the original boundaries does not ap"Section 315. Whenever any person or pear in the pleadings, and makes no differpersons shall desire to construct, build, or ence. The answer then proceeds as follows: place any wooden building within the fire "Defendants further state that on the limits of the city of Poplar Bluff as herein. 20th day of April, 1908, and while the above before described, such person or persons ordinances were in full force and effect, the shall file with the mayor and council an plaintiff, W. B. Hays, being desirous of application in writing, setting forth the lo- erecting a wooden structure which he called cation, size, and manner of construction of an 'air dome' upon the west half of lot 61 the proposed building, and the purposes for in the original town, now city of Poplar which it is to be used. Such application Bluff, Missouri, and which said lot was must be accompanied by the written con- within the fire limits of defendant city, filed sent of all persons owning property within with defendant's city clerk the following the block in which such proposed building document, to wit: is to be erected or placed. Upon the filing

“April 6, 1908. of such application and written consent of “To the Mayor and City Council. the property owners aforesaid, the council

"Gentlemen : may, by resolution, authorize the construc

“We, the undersigned property owners are tion or erection of the desired wooden buildings within the said fire limits: Provided, willing for W. B. Hays to erect an air dome that the names of the members voting for

on lot 61-stage to be built of iron.

“[Signed] W. B. Hays; Mrs. J. L. Parham, and against said resolution shall be entered on the journal, and a vote of a majority by W. B. Hays, Agt.; Geo. D. Kirkhoff; w. of all the members elected to the council J. Kennedy; State Bank of P. B., by W. w. shall be necessary for its passage.

Turner, Cashier; J. H. Dates, by E. Bacon, “Section 316. Any person who shall Agt.; Mrs. K. M. Arrendale; Mrs. Etta C. build, construct, or place, or suffer any

Blatt, by C. E. Kinder, Agt. wooden building to be constructed, built, "Defendants further state that said plainor placed within the fire limits of the city tiff, W. B. Hays, failed and neglected to file of Poplar Bluff contrary to the provisions with the mayor or city council an applicaof the preceding sections, shall be deemed | tion in writing for permission to erect said guilty of a misdemeanor, and upon convic-wooden structure, setting forth its location, tion thereof be fined not less than twenty- size, and manner of construction, and the five nor more than one hundred dollars, and purpose for which it was to be used, as rea like fine for every week that he shall con- quired by the ordinances of the defendant tinue in violation of the said section. city; but, on the contrary, defendants aver

“Section 317. Whenever any wooden that said plaintiff, W. B. Hays, filed no apbuilding shall be constructed, built, or placed plication whatever for said permit other within the fire limits of this city contrary than the document set out in full above, to the provisions of this ordinance, it shall which purports to be the written consent, be the duty of the mayor to issue an order to the construction of said building, of all requiring the owner, occupant, person in persons owning property in the block in charge, or builder thereof, to cause such' which said wooden structure was to be

erected, but which in truth and in fact was written application they proceeded to write not signed by all persons owning property upon their journal as follows: “September in said block and square in which said build - 20th, 1909. L. & Brandon. On Application ing was to be erected, but on the contrary of W. B. Hays to permit him to put an iron was signed by but a small number of the roof on Tanguay Skating Rink. Permission persons who owned property in said block; is granted and carried if the proper petition and defendants aver that the plaintiff at no of property owners is filed. And which said time filed with the proper officers of the city journal entry was recorded upon the record the 'written consent of all persons owning of the council proceedings as follows: property in the block in which said proposed | 'Building Permit. On motion of Langley building was to be erected as required by and seconded by Brandon. It is ordered defendant city's ordinances.”

by the council that a permit be granted to It then states, in substance, that the fol- W. B. Hays to erect and place an iron roof lowing entry appears upon the journal of on the Tanguay Skating Rink. Said perthe proceedings of the city council as of mission is granted the proper petition of April 27, 1908: "W. B. Hays presented to the property owner is secured and filed bethe council the consent of all the property fore commencing the work.'” This order, owners in lot

of the old town, and the answer states, was obtained by deceit, asks for permission to build an 'air dome.' and is void. W. B. Hays now presents to the council the consent of all the property owners in lot the office of the city clerk the following:

Afterwards, on September 28th, he filed in 61 of the old town for him to build an 'air dome' on said lot, and now asks permission "To the Honorable Mayor and City Council of the council, which is granted.” It is al- of the City of Poplar Bluff: leged that this entry was made by the clerk We, the undersigned citizens and property without entering the names of members owners, owning property in lots sixty-one voting for and against it on the journal, (61) and sixty-two (62) of the city of Popwithout the consent of all the property lar Bluff, in which is located the Tanguay owners as required by law, and without a Skating Rink, hereby petition your honor. vote having been taken thereón as required able body to permit and grant Mr. W. B. by law, and in violation of the ordinances Hays, manager of the Tanguay Skating of the defendant city in that behalf, and of Rink, the privilege of placing upon the Tanhis duties as city clerk, and that it was guay Skating Rink an iron roof. void. That after the entry of this order [Signed] State Bank of P. B., by W. W the plaintiff, without the consent of the Turner; Etta Goss Blatt; John H. Dates, mayor and city council, and without the by E. Bacon, His Agt.; Bacon Realty Co., consent of all persons owning property in by E. Bacon, Prest.; Mrs. J. J. Parham, by the block, wrongfully, in violation of the W. B. Hays, Agt.; C. M. Ducker and Sons; city ordinances, and in disregard of the Kate M. Arrendale. lives and property of the inhabitants, built

The answer then states that this paper on said lot a wooden structure, the outer contained the names of only a small porwalls of which were made of wood, with a tion of the persons owning property in the wooden stage, chairs, and benches, a wooden block, and that its filing conferred no right confectionery stand, and other combustible

upon the plaintiff; but, notwithstanding articles too numerous to mention; and af. this, the plaintiff proceeded to put on his terwards in the same fall, wrongfully and iron roof, put in permanent wooden parti'without permission of the city or consentitions, and rented the rooms to divers perof all the property owners, put in a wooden sons who are conducting in it a saloon, a floor, stretched a tent over it for a roof, bowling alley, a billiard and pool room, and and changed the name of the structure to

a gambling house. As soon as the city "Tanguay Skating Rink,” and operated it learned (so runs the answer) “that said as a skating rink until the fall of 1909, plaintiff intended disobeying his agreement when he appeared before the council and to remove said building, but on the condeceived it by saying that if it would give trary maintaining the same as a permanent him permission to cover the structure with structure, to wit, on January 17, 1910, that an iron roof he would remove it from the the proper officers of the defendant city lot the “next spring,” and that he intended duly passed, and the mayor duly approved," to use it in the meantime only as a skating the ordinance we have already copied in rink.

connection with the petition, and which conThe council once more confided in him, stitutes the motive of this action. The an. and were again deceived. They were so im- swer then proceeds: "Defendants further pressed by his persuasive diction that it did state that, immediately after the passage not occur to them to ask him to put it and approval of the above ordinance, the down in black and white, but without any' defendant city's mayor, John W. Berryman, issued an order on the plaintiff to abate ner, 243 Mo. 217, 223, 41 L.R.A.(N.S.) 177, and remove said building, by having served 147 S. W. 998, 999: “Any fair, reasonon plaintiff a true copy of the above ordi- able doubt concerning the existence of nance, ordering plaintiff to abate said build power is resolved by the courts against the ing and to remove the same without the fire corporation, and the power is denied.' St. limits of the defendant city within ninety Louis v. Bell Teleph. Co. 96 Mo. loc. cit. days after the passage of said ordinance, 623, 2 L.R.A. 278, 9 Am. St. Rep. 370, 10 but defendants state that the plaintiff, al. S. W. 197; Nevada use of Gilfillan v. Eddy, though thereto requested according to law 123 Mo. loc. cit. 557, 27 S. W. 471; Indeand the ordinances of the defendant city, pendence v. Cleveland, 167 Mo. 388, 67 S. neglected and refused to remove said build- W. 216." ing within said time, but stated, averred, The power upon which defendants have and threatened that he intended keeping planted themselves for justification in this and maintaining said building on said lot case is contained in § 9228 in article 4 of permanently, and still refuses and neglects chapter 84 of the Revised Statutes of 1909, to remove the same."

relating to cities of the third class, and is The plaintiff replied by general denial. A as follows: "The council may also provide, trial was had and testimony taken which by ordinance, limits within which no buildfills about 340 pages of the abstract. It ing shall be constructed except of brick or will be unnecessary to examine this. The stone or other incombustible materials, with preliminary injunction was made perpetual. fireproof roofs, and impose a penalty for

The defendants, in their joint answer, the violation of such ordinance, and may admit that the city, before the institution cause buildings commenced, put up, or reof this suit, by ordinance passed and ap- moved into such limit, in violation of such proved February 21, 1910, ordered the plain ordinance, to be removed or abated.” tiff's building in question to be abated and That this provision gives ample power to removed within ninety days after the serv- the legislative department of the city gov. ice of notice of its passage, "for the rea- ernment to establish districts in which no son that said building is constructed of building of other than incombustible matecombustible material, and therefore a nui- rials shall be constructed is evident; but sance, and was built in violation of $$ 313, to construe it to give power to establish 314, and 315 of the revised ordinances of districts in which buildings of combustible the city of Poplar Bluff of the revision of or incombustible materials may be con1898, and ordinance No. 24." Also, that it structed, as may be arbitrarily determined immediately served an order and notice on by the mayor and council in each particular plaintiff to abate and remove said building case, requires us to reject its broadly pro"without the fire limits of the defendant hibitive words, thus rendering it meaningcity” within ninety days. It has therefore, less and inoperative, or to add words of in the most solemn and effective form in permission which would defeat the evident which it can express itself, threatened to object of the enactment, which is that all enforce the fire-limit ordinance by abating persons owning property within the limits and removing the plaintiff's building; and established, and the general public as well, the street commissioner joins it in a justi- should be protected against the menace of fication of both under the same ordinance. combustible structures within such limits. Neither in the pleadings nor in the briefs It bears no evidence, as does the ordinance, of their common counsel does he attempt that the legislature had in mind the idea to evade any responsibility assumed by the that each block should stand alone in the city, and we cannot make a discrimination matter of such proteetion, and the record in his favor which he does not deign to of disastrous fires in cities furnishes no make for himself. We will therefore con- foundation for such a theory. Nor is there sider the case against both as if the city any evidence in the act of a legislative now were the only defendant. This brings us tion that those who might have the necesat once to the question: Are the provisions sary influence, the "pull," as it is often of the city ordinance purporting or attempt called in the expressive language of our ing to establish fire limits for Poplar Bluff, time, might obtain special permission not a city of the third class, valid ?

open to others, to build combustible strucIn considering such questions, we usually tures within the designated limits. It laid begin with some form of the ancient and down a rule applicable alike to all, of gov. indubitable proposition that, under our sys- ernment by law, and not by special privilege tem of government, municipal corporations or favor. An attempt of the general aspossess no powers or faculties not consembly to authorize the ordinance in ques. ferred upon them, either expressly or by tion would have been an attempt to confer fair implication, by the law which creates upon the agent of its own creation a law. them, or by other statutes applicable to making power which the Constitution had them. As we said in St. Louis v. Dreisoer- 1 expressly withheld from itself. Clause 26

"If an

of § 53 of the 4th article of our Constitu- | its general scheme by which the city council tion forbids the passage by the general as. places its paternal hand upon the interests sembly of any local or special law granting of the people of the city with the manifest to any person any special right, privilege, intention of gathering to itself the undeor immunity. It would, of course, be ab- fined and arbitrary power to determine who surd to say that, in the face of this consti- shall have the special privilege of erecting iutional inhibition, it might, by special law, buildings of combustible materials in these permit such individuals as it should select areas, and who shall be denied, without from time to time to violate a penal law, being entitled to the courtesy of a reason. and grant them immunity therefor. It This cannot be done. The reason is well would be still more absurd to say that the expressed by the supreme court of Indiana general assembly could give itself the power in Elkhart v. Murray, 165 Ind. 304, 1 L.R.A. to grant such special privileges and immuni. (N.S.) 940, 112 Am. St. Rep. 228, 75 N. E. ties by the clumsy subterfuge of inserting 593, 6 Ann. Cas. 748, as follows: in all prohibitive and penal laws a condition ordinance upon its face restricts the right that the forbidden act might only be done of dominion, which the owner might otherwith its permission expressed by statute. wise exercise without question, not accord. But it would be the most absurd of all to ing to any uniform rule, but so as to make contend that, although the Constitution had the absolute enjoyment of his own depend withheld from the general assembly the upon the arbitrary will of the city authoripower to pass such laws, that body might ties, it is invalid, because it fails to furgive its own agent, the legislative body of nish a uniform rule of action and leaves a municipal corporation, the power to make the right of property subject to the will of them.

such authorities, who may exercise it so It is suggested that although such a con- as to give exclusive profits or privileges to dition may be unconstitutional and void, particular persons.” The wealth of auyet the court should simply strike it out, thority opened by the court in its citations so that in its mutilated condition the ordi- | in that case has been of great assistance nance would denounce its penalty against in the investigation of the subject. This all alike. Thus the court could make an court also, in St. Louis v. Russell, 116 Mo. ordinance changing the conditional prohibi- 248, 257, 20 L.R.A. 721, 22 S. W. 470, 472, tion of the municipal mayor and council held an ordinance of the city of St. Louis ininto an absolute one, avoiding the quick- valid “for the reason that by its provisions sands of the Constitution. The supreme one citizen is permitted to erect a livery judicial court of Massachusetts answered stable in a certain locality by obtaining this proposition in Austin v. Murray, 16 the written consent of the owners of one Pick. 121, 126, as follows: "A by-law be- half the ground in the block, while another ing entire, if it be void in part, shall be of like merit would not be permitted to do void for the whole. The reason is obvious, for the want of such consent." In that for, if a part of a by-law might stand good, case the court cites, with its approval, nuwhile another essential part could not be merous authorities; among others, Barthet sustained, the object of the by-law might v. New Orleans (C. C.) 24 Fed. 564, in be defeated, and injurious consequences which an ordinance of that city was held might follow against the intention of the invalid which made it unlawful to maintain framers.” The by-laws so held to be entire a slaughterhouse "except permission be consisted, like this ordinance, of a general granted by the council of the city of New prohibition to do a certain thing without Orleans;" State v. Mahner, 43 La. Ann. 496, the consent of the selectmen.

9 So. 480, in which an ordinance forbidding The mayor and city council of Poplar the keeping of more than two cows by any Bluff, under the charter power we have person within certain prescribed limits in quoted, undertook to establish fire limits the city without a permit from the city within which they attempted to make it council was held void; Richmond v. Dudley, unlawful, without a special permission from 129 Ind. 112, 13 L.R.A. 587, 28 Am. St. the mayor and city council, "to construct Rep. 180, 28 N. E. 312, in which an ordiany edifice, building, structure, or shed the nance forbidding the storing of inflammable outer walls of which are in whole or in or explosive oils within the limits of the part made of wood.” The combustible char. city of Richmond, without the permission of acter of the structure seems to be entirely the common council, was held void; State ignored. A shed with metal angles or gas v. Dubarry, 44 La. Ann. 1117, 11 So. 718, pipe for framework and tarred paper for in which an ordinance of the city of New walls and roof would evade the description Orleans was held void because it prohibited of the prohibited structures as completely the setting up of any private market withas brick or stone with fireproof roof. But out permission of the city council; Newton the vice most important in this ordinance is ' v. Belger, 143 Mass. 598, 10 N. E. 464, in which an ordinance permitting the board of learned judge who wrote it concurred, and aldermen to exercise their discretion in which brings to its support many well-congranting or refusing permits for the erec- sidered adjudications of this and other tion of buildings within the fire limits was courts, it does not overrule nor even menheld invalid; and State v. Tennant, 110 N. C. tion it. The one case cited in the Fischer 609, 612, 15 L.R.A. 423, 28 Am. St. Rep. 715, Case to the points we have considered is 14 S. E. 387, in which a like fate befell an St. Louis & M. River R. Co. v. Kirkwood, ordinance of Asheville, North Carolina, for- 159 Mo. 239, 53 L.R.A. 300, 60 S. W. 110, bidding the erection of a building in the in which a condition contained in an ordicity without having first applied to the al- nance of the town of Kirkwood giving a dermen and obtained permission for that railroad company the right to build and purpose. All these cases were decided upon operate its road upon a street was held to principles stated in Elkhart v. Murray, be valid. There is evidently no similarity supra, and repeated by the supreme court between the two cases. In the Kirkwood of North Carolina in the case last cited, as Case the town is giving the use of its own follows: “If an ordinance is passed by a street which it may give or withhold to municipal corporation, which upon its face any extent pleases. In this case the city restricts the right of dominion which the has nothing to give, but is appropriating individual might otherwise exercise without the property of the individual to the use question, not according to any general or of the people through the exercise of the uniform rule, but so as to make the abso- police power of the state, and must look to lute enjoyment of his own depend upon the grant of that power for the exact limits the arbitrary will of the governing authori- of its right. So far as the Fischer Case ties of the town or city, it is unconstitu- conflicts with the Russell Case, supra, it is tional and void, because it fails to furnish disapproved, and the doctrine of the latter, a uniform rule of action and leaves the right as well as of St. Louis v. Dreisoerner, 243 of property subject to the despotic will of Mo. 217, 223, 41 L.R.A. (N.S.) 177, 147 S. W. aldermen, who may exercise it so as to give 998, 999, and St. Louis v. Atlantic Quarry exclusive profits or privileges to particular & Constr. Co. supra, is approved. persons.” The sentence quoted is followed II. There is nothing in the objection that by a long list of authorities to the same ef- the respondent is not entitled to injunctive fect. The same principle is restated, with relief because he has an adequate remedy a liberal citation of authorities, by this at law. The injunction forbids the tearing court in St. Louis V. Atlantic Quarry & down of the building, interference with the Constr. Co. 244 Mo. 479, 487, 148 S. W. 948. plaintiff's possession or title to the land

Our conclusion is that the ordinance in and building thereon, and the molesting of question is void because it is not within the plaintiff or his tenants. legislative powers delegated to the city by Our statute (Rev. Stat. 1909, $ 2534) deits charter; because it violates the funda clares, probably in conformity to the rule mental principle inherent in our constitu- of the common law, that the remedy by tional system that when a municipal corpo writ of injunction shall exist in all cases ration seeks by ordinance to restrict for the where an irreparable injury to real or perpublic good the rights of the individual sonal property is threatened, and to preotherwise incident to the ownership of prop- vent the doing of any legal wrong whatever erty, it must do so by a rule applicable to whenever in the opinion of the court an adeall alike under the same circumstances, and quate remedy cannot be afforded in damcannot make his enjoyment of his own de- ages. One of the most common uses of the pend upon the arbitrary will or caprice of writ is to prevent injury to or destruction the municipal legislature; and because its of property by the unauthorized or wrong refusal to consider applications for relief ful exercise of police powers by municipal from the enforcement of its prohibitory corporations. In Connecticut Mut. L. Ins. terms, unless accompanied by the written Co. v. St. Louis, 98 Mo. 422, 11 S. W. 969, consent of the property owners of the block, it successfully used

to prevent amounts to a delegation of the legislative the destruction of a building by the power of the city to such property owners. city in opening or improving a street. In

We have considered these questions at Boyd v. Frankfort, 117 Ky. 199, 213, 111 greater length than we would otherwise Am. St. Rep. 240, 77 S. W. 669, 673, it was think necessary, because the decision of this used to prevent the destruction of a church court in St. Louis v. Fischer, 167 Mo, 654, without the consent of the common coun64 L.R.A. 679, 99 Am. St. Rep. 614, 67 S. W. cil as required by ordinance. The court 872, is, we think, inconsistent with the said: “There can be no doubt of the right conclusion at which we have now arrived. of appellants to maintain this action. The Although that case is irreconcilable with law authorizing it has been repeatedly dethe Russell Case, supra, in which the clared by this court. Thus in Newport v.

was

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