City of St. Louis v. Brune

HENRY I. EAGER, Special Commissioner.

The defendant, appellant, was convicted in the St. Louis Court of Criminal Correction of two violations of a St. Louis Ordinance prescribing minimum housing standards. The violations allegedly arose from the operation of two different apartment buildings. Section 390.080 of Ordinance 51637 forbade any owner of such properties to permit the occupancy of any dwelling units which were not in compliance with the ordinance; Section 391.040 required that every dwelling unit “shall have a tub or shower bath in good working condition, properly connected to approved hot and cold water and sewer systems in the toilet room or in a separate room adjacent to such dwelling unit.” Defendant concedes that his units did not and do not contain tubs or showers so connected. They apparently did contain “water closets” and that is not an issue here. Separate violations were charged as to defendant’s buildings at 3917-3921J4 Finney (Avenue) containing six units or apartments, and at 4030-321/á Finney containing six units, the latter of which seems also to have abutted on Fairfax and is thus referred to rather confusingly at times. The cases were tried together without a jury, the Court found defendant guilty in each case and assessed a fine of $100 and costs against him in each case. No special findings were requested or made. Defendant filed motions to set aside the judgments and for a new trial, specifically raising the point that the Court had erred in sustaining the validity of Section 391.040, supra, because it was unreasonable, arbitrary and confiscatory, that it bore no reasonable relationship to health, welfare or safety, and that it denied to defendant due process under the 14th Amendment to the United States Constitution and took his property for public use without just compensation. Substantially identical allegations had been made in the answers filed by defendant to the informations. The motions were overruled and defendant duly appealed. The cases have been docketed and considered together in this Court. We have jurisdiction because of the constitutional question and the time of the filing of the notices of appeal.

This case has been here previously. See 466 S.W.2d 677 (Mo.1971). The defendant had raised the constitutional issue there and the Court clearly defined the problem. However, the trial court had excluded much evidence offered by the defendant to support its contention, and in fact it would seem to have excluded nearly all of defendant’s proferred evidence. This Court declined to rule on the merits on the record as there presented and reversed and remanded the case, holding that such evidence was relevant and admissible. Following the retrial, we have the present appeal. Considerable evidence was received but the record still leaves much to be desired. Some features have not been completely developed, and the transcript is replete with handwritten deletions, additions and corrections, some apparently necessary to attain a reasonable degree of clarity. The parties have approved the transcript and we accept it for what it may be worth. By a stipulation added to the transcript it is stated: that the city subpoenaed defendant’s books, records etc., reflecting the income and expenses on these properties for the years 1950 through 1969, and also all books, records etc., reflecting similar information for properties “within a 3 block vicinity * * in which defendant had a controlling or managing interest; that defendant failed to produce such records, and that the plaintiff “by agreement and stipulation with defendant’s attorney” moved for an order striking all of defendant’s testimony as to income, rent and expenses relating to the two properties here involved, and that said motion was sustained. The transcript contains a brief statement that plaintiff “by agreement” moved to strike out all evidence of defendant “as to income received from property in issue memorandum in file.” Several rather peculiar features thus appear in this part of the procedure, but since defendant raises no point whatever concerning it, we shall, with some doubt, disregard his evidence regarding income and expenses. Actually, there is not much, anyway.

It may simplify matters to refer to 4030-40321/2 Finney as tract 1, and 3917-3921½ Finney as tract 2. A city building inspector testified at some length, but it is not necessary to review his testimony in detail. Defendant admitted that the buildings did not comply with the ordinance in the respects designated, and he assumed responsibility as the actual owner. This witness for the city was familiar with the properties on both sides of Finney from Vandeventer to Sarah and stated: that “the properties in the area are in a vandalized condition * * apparently meaning most of them; that probably four to six buildings have been razed; and that there were sundry vacant lots. A group of many photographs was identified and received as an exhibit; these supposedly represented buildings and vacant lots on Fin-ney and Fairfax in the immediate vicinity of these properties. The witness recognized some of them. They show buildings with windows and doors boarded up, windows broken or entirely knocked out, and badly dilapidated conditions generally. The witness thought some of these buildings had contained baths, but that this did not prevent their “vandalization”; he did not know whether the absence of tubs or showers and hot water might contribute to the vacancies, but recognized that some people were willing to pay very low rents with little or no improvements.

From the defendant’s testimony we note the following as its substance: that he had been engaged in real estate ownership and management for 61 years; that he had made many real estate loans; that he acquired tract 1 on April 18, 19S2, and tract 2 on October 15, 1950; that he thought there were then no vacant lots; that most of his tenants are living on social security or aid to dependent children, although a few work; that neither property has any sale value or loan value, and there are no buyers for them at any price; that the condition of the neighborhood “has something to do with it”; that when a building there becomes vacant it immediately disappears, for the vandals steal everything and tear it up; that he had an estimate on the cost of installing the required equipment and that it ran from $1,200 to $1,300 per unit, or $7,800 per building; that each building is about 70 years old, with a probable life of four or five years if not vandalized sooner ; that the improvements demanded would not increase the market value, for there would still be no buyers; that he would have to charge about $60 a month rentals to pay for the improvements over a five-year period and it would not be possible to get it; that if the buildings were not rented and became vacant, they would “disappear”; that in a two-block area on Fin-ney and Fairfax he had found about 39 buildings vacant and vandalized and a number of vacant lots; that people don’t want to live there; that he recently sold a ten-unit building “with baths” for $1,800 at 3115-3123 Brantner, a two-family building on 22nd Street for $500, and (apparently) a building at 2514 N. Market for $1,500. Defendant further testified that his father and mother lived to the respective ages of 87 and 85 without having any baths connected to pipes and that he had none until he was 21.

A physician, Dr. Herman Blumenthal, specializing in pathology, testified for defendant: that the purpose of bathing is to remove dirt; that bathing can be done in various ways, and that “there is no special effect in method”; that there is no medical requirement of pipes and a tub; that hot and cold water can be used in any tub or container, and that the absence of a tub or shower from an apartment unit would not, in his opinion, be detrimental to the occupants. A plumbing contractor testified that his estimates for installing tubs, waterlines and heaters, with wash basins, was $800 per unit or $4,800 for a six-unit building. A general contractor estimated the cost of removing and rebuilding the walls, entrances, floors, etc., in making such improvements at $410 per unit or $2,460 for a six-unit building; he further testified that this would reduce each kitchen to about the size of a closet.

In rebuttal, the city produced Dr. William Blanton who testified: that any dwelling unit without hot water is detrimental to health because of the relative difficulty in removing bacteria without it; that bathing is necessary from a public health standpoint, and that one cannot effectively perform the function of bathing without a tub or shower connected to hot water. The foregoing constitutes the essential evidence.

As said by Judge Donnelly in 466 S.W.2d at l. c. 678: “The problem of attempting to reconcile the quest for adequate housing for tenants with protection for the property rights of landlords has drawn the attention and consideration of the scholars and of the courts * * *

“The essential question presented ‘is whether the ordinance in question is fairly referable to the police power of the respondent municipality, and whether the expressed requirements or regulations of the ordinance have a substantial and rational relation to the health, safety, peace, comfort, and general welfare of the inhabitants of the municipality.’ * * * ”

Certain principles seem to have been more or less generally accepted; these are, in substance, the following. Owners of property hold it subject to the reasonable exercise of the police power. The ordinance or other law must, as stated above, bear a reasonable and substantial relation to the public health, welfare or safety; if it does, the power may be exercised without compensation. The cost of the improvement to the owner is not alone decisive of the question, but it may be a material element in a consideration of the reasonableness of the law. In the first instance the legislature has a rather wide discretion and, while the courts may invalidate such a law if arbitrary and unreasonable, they will not in so doing substitute their judgments for those of the legislative bodies; and there is a presumption of constitutionality. On the other hand, there comes a point where the reasonable exercise of the police power ceases, the enforcement of the law becomes confiscatory, and only the right of eminent domain remains; and differences in “degree” constitute material distinctions.

We have examined the many cases cited pro and con by the parties. A discussion of the facts of those cases would be an interminable task. There are no Missouri cases based on similar facts. In Kalbfell v. City of St. Louis, 357 Mo. 986, 211 S.W.2d 911 (1948), an order closing a building for use as a movie theatre was upheld because of violations of the city’s safety requirements, and the Court held that these requirements might be applied to an existing building. In City of St. Louis v. Nash, 260 S.W. 985 (Mo.1924), an ordinance required “privies” to be removed and replaced by modern “water closets” where sewers were available. Sewers were available and the ordinance was held valid and applicable to defendant’s existing property. The situation there was extreme, and it constituted an obvious danger to public health. The Nash case was followed with approval in City of St. Louis v. Hoevel Real Estate & Building Co., 59 S.W.2d 617 (Mo.1933), on somewhat similar facts.

In general, the following requirements have been held valid in other states as to existing buildings, usually apartments or “tenement” houses; rent regulation (Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921)); safety and sanitary improvements costing $5,000 on a forty-room tenement assessed at $13,500, details not explained (Adamec v. Post, 273 N.Y. 250, 7 N.E.2d 120 (1937)); water on each floor in suitable “appliances” (Health Dept. of the City of New York v. Rector, Church Wardens and Vestrymen of Trinity Church, 145 N.Y. 32, 39 N.E. 833 (1895)); a tub or shower, sink, and toilet with running water (Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683 (1955) a 3-2 decision); separate lavatories, adequate tubs, sinks (Apple v. City & County of Denver, 154 Colo. 166, 390 P.2d 91 (1964)); demolition of building which had become a nuisance (Perepletchikoff v. City of Los Angeles, 174 Cal.App.2d 697, 345 P.2d 261 (1959)); adequate fire escapes (City of Seattle v. Hinckley, 40 Wash. 468, 82 P. 747 (1905)); prohibition of glass panel doors (Kaukas v. City of Chicago, 27 Ill.2d 197, 188 N.E.2d 700 (1963)); central heat or approved water heater (Danker et al. v. City of New York et al., 20 Misc.2d 557, 194 N.Y.S.2d 975 (1959)); tub or shower with hot water (Givner v. Com. of Health, 207 Md. 184, 113 A.2d 899 (1955)); hot water and screens in “cold water flats” (Paquette v. City of Fall River, 338 Mass. 368, 155 N.E.2d 775 (1959)); tub or shower, sink, lavatory and water heater (Wheat v. Ramsey, 284 Ala. 295, 224 So.2d 649 (1969)); tub or shower and hot water (City of Louisville v. Thompson, 339 S.W.2d 869 (Ky.1960)); hot water “apparatus” (City of Newark v. Charles Realty Co., 9 N.J.Super. 442, 74 A.2d 630 (Essex County, 1950)); water closet for each apartment (City of Newark v. Zemel, 17 N.J.Super. 295, 86 A.2d 36 (Essex County, 1952)).

We note here that in Apple, Perepletchi-koff and Paquette, supra, the respective courts said that the law must not be unreasonable as applied to the individual owner and his property; and in Paquette the Court also said that in so broad a field it did not make a declaration applicable to all, but only as the ordinance applied to the plaintiff. See also Dente v. City of Mt. Vernon, 50 Misc.2d 983, 272 N.Y.S.2d 65 (1966).

In Safer v. City of Jacksonville, 237 So.2d 8 (Ct.App.Fla.1970), the city had charged many violations of a municipal housing code, but the ones principally discussed were the absence of lavatories in some units and the lack of hot water to lavatories, tubs or showers in others. The building was valued at about $40,000, and all of the required improvements would have cost approximately $20,000; some of the tenants had been there for 30 years. A jury found that most of the supposed defects were insubstantial. The Court on appeal held that the failure to furnish hot water to the tubs or showers did not adversely affect the health of the tenants, that in this respect, and in view of the cost, the ordinance bore no reasonable relation to the public health and welfare, and that its enforcement would be confiscatory.

In Dente v. City of Mt. Vernon, 50 Misc.2d 983, 272 N.Y.S.2d 65 (Sup.1966), the Court held unconstitutional, as applied to plaintiff’s property, an amended ordinance which required a tub or shower, hot water and a wash basin in all apartment units. Plaintiff owned a building with eleven three-room units, all of which had toilets. The additional cost would have been about $11,000. The Court noted that “there comes a point at which the police power ceases * * *,"and that such regulations “might amount to a taking without due process of law,” quoting from Block v. Hirsh, 256 U.S. 135, 156, 41 S.Ct. 458, 460, 65 L.Ed. 865. The Court also cited Rideout v. Knox, 148 Mass. 368, 19 N.E. 390 (1889), in which the Court said that “ * * * difference of degree is one of the distinctions by which the right of the legislature to exercise the police power is determined,” and that the larger limitations of existing rights may be imposed only by the exercise of the right of eminent domain. The gist of the Dente opinion was that the urgency of the evil to be corrected should be weighed against the cost to the property owner, and the Court there found the ordinance invalid as applied to the plaintiff. There was no “manifest evil,” even under the New York Multiple Dwelling Law, McKinney’s Consol.Laws, c. 61-a.

Our legislature adopted in 1969 a so-called “Minimum Housing Code Standards,” Sections 441.500-441.640, RSMo 1969, V.A.M.S., (pocket parts), effective August 13, 1969, to which certain amendments were made in 1971. This law was not effective at the time of the supposed violations charged in these cases. However, and of more importance, the act does not provide any minimum health or safety standards for housing, but does enact a procedure by which a municipality may, through its “Code Enforcement Agency” (or one-third of the tenants of the dwelling units involved), file a civil suit for.the abatement of an existing nuisance; therein, if the Court finds that such a nuisance exists it may appoint a receiver and order the rents to be deposited with the clerk, pending corrections. This act has no effect upon our issues.

As held in some of the cases, supra, we do not in this opinion decide the validity of the ordinance generally; its effect and its reasonableness vary as to each property affected, and a decision must be made on each separate state of facts as they arise. As to the two properties involved here, we have decided that the application of that part of Section 391.040, quoted above, would be arbitrary and unreasonable and hence a deprivation of due process to the defendant.

We recognize that in all probability a majority of the cases involving the general question (but certainly not on identical facts) have held such ordinances to be valid. We have determined that the facts as stated here impel us to a contrary conclusion. These buildings have no sale value, and no loan value. The buildings are 70 years old. No one will purchase them and people simply do not want to live in that neighborhood. This evidence, though coming from the defendant himself, is uncon-troverted and we accept it. The locality has been largely vandalized and many of the buildings are vacant. When a building becomes vacant it is almost immediately vandalized and, as defendant said, it “disappears.” Most of defendant’s tenants are living on welfare or social security. This record does not show that any tenants have complained of existing conditions; they apparently do have flush toilets and lavatories with hot and cold water. The cost to defendant of the improvements demanded would total approximately $7,800 for each building, according to defendant’s testimony. This figure was objected to as hearsay, but estimates had been received and defendant was an experienced real estate operator and owner. The evidence was admissible. Also, according to two witnesses who actually made estimates, the total cost of the improvements so estimated would total $7,260 per building. In the alteration the kitchens would be reduced to “closet” size. There was testimony from the defendant that in order to recoup such expense, he would have to charge monthly rentals of $60 over a five-year period and that this was simply not obtainable. The net result would seem to be vacancies, vandalism, and probably a total loss of the buildings.

The problem here is not actually one of public health; it is wholly different from those cases involving outside privies, sewage, etc. While the situation is by no means ideal, it really involves a matter of inconvenience to those tenants who choose to pay a minimum rent in return for incomplete facilities. The tenants may still bathe if they want to, and we are not convinced of any great danger that diseases will be spread.

In conclusion, we hold that the part of § 391.040 of Ordinance 51637 first quoted herein (tub or shower connected to approved hot and cold water and sewer systems) is unconstitutional as applied to these two properties; this, for the reason that it is unreasonable, arbitrary and confiscatory as so applied, and consequently a deprivation of due process; and that, as so applied, it would have no substantial or reasonable relationship to the public health, welfare or safety.

The judgments appealed from are reversed and the cases are remanded with directions to discharge the defendant.

PER CURIAM:

The foregoing opinion by HENRY I. EAGER, Special Commission, is adopted as the opinion of the Court en Banc.

DONNELLY, C. J., and MORGAN and HOLMAN, JJ., concur. HENLEY, J., concurs in separate concurring opinion filed. FINCH, J., dissents in separate dissenting opinion filed. SEILER and BARDGETT, JJ., dissent and concur in separate dissenting opinion of FINCH, J.