Opinion
January 30, 1939.
1. — Appeal and Error. Court of Appeals, reviewing court's action in overruling demurrers, considers facts in light most favorable to plaintiff.
2. — Municipal Corporations. City was not liable for refusal of building inspector to grant building permit when same was not allowable under zoning ordinances then in effect, though ordinance was afterward held invalid, ordinance being an abortive attempt to exercise a police power, and therefore governmental in character, having for its purpose regulation and control of future building construction in the interests of fire protection and control, and regulate distribution of population in interests of better police protection to persons and property, and in interests of public health and general welfare, and act of building inspector in refusal was of governmental in character.
3. — Municipal Corporations. Building inspector, who refused building permit, relying on zoning ordinance, who appealed from order of circuit court in mandamus ordering him to issue permit, and complied with the order of the Supreme Court to issue permit, was not liable to applicant for damages due to delay in issuing permit; he was within his right in refusing to grant permit in violation of city ordinance, until same had been declared void by court of last resort.
Appeal from Circuit Court of Cole County. — Hon. Nike G. Sevier, Judge.
REVERSED.
John O. Bond for appellants.
(1) Plaintiff's petition failed to state a cause of action against the defendant city and said defendants' demurrer at the close of all the evidence should have been sustained for the following reasons: (a) A city is not liable for the acts and conduct of its officers while enforcing the police or governmental powers of the city. Worley v. Columbia, 88 Mo. 106; Lober v. Kansas City, 74 S.W.2d 815; Zummo v. Kansas City, 225 S.W. 934. (b) A city is not liable for the passage of an invalid ordinance relating to its governmental or nonproprietory function. Keating v. Kansas City, 84 Mo. 419; Butler v. Moberly, 131 Mo. App. 172; Seattle Electric Co. v. City of Seattle, 206 F., l.c. 959; Hershberg v. City of Barbourville, 142 Ky. 60, 133 S.W. 985, 34 L.N.S. 141; Simpson v. Whaton, 33 Wn. 392, 63 L.R.A. 815, 74 P. 577; Trammell v. Russellville, 34 Ark. 105, 36 Am. Rep. 1; Franks v. Holly Grove, 93 Ark. 250, 124 S.W. 514; City of Chicago v. R.R. Co., 216 F. 735; Bond v. Royston, 130 Ga. 646, 61 S.E. 491, 18 L.N.S. 409. (c) When one applies to a city for a license or a permit and is refused that license or permit, his sole remedy is mandamus and he has no action for damages and is not legally damaged. Butler v. Moberly, 131 Mo. App. 172. (d) A petition is fatally defective which commingles several causes of action. McCoy v. Yager, 34 Mo. 134; Henderson v. Dickey, 50 Mo. 161. (e) Although defendant waives overruling of demurrer by answering, this does not prevent defendant from attacking petition on the ground that it does not state a cause of action in the upper court. McMillion v. Triplett, 118 S.W.2d 515. (2) Plaintiff's petition failed to state a cause of action against the defendant August Schwartz, for the reason the preliminary or interim zoning ordinance was held to be void by the Supreme Court, and it being void the plaintiff had the right to proceed with his building or not proceed at his peril and when he attained his building permit he had exhausted his legal remedy and if he was damaged it was damnum absque injuria. State ex rel. Kramer v. Schwartz, 82 S.W.2d 63; Butler v. Moberly, 131 Mo. App. 172. (3) It is error for a court to admit into evidence testimony which has nothing to do with the issues but which is calculated to confuse the issues and place one litigant in a bad light before the jury. Nulsen v. Priesmeyer, 30 Mo. App. 126. (a) So it was error for the court to allow the evidence of plaintiff's police court prosecution, Abs., p. 15. Nulsen v. Priesmeyer, supra. (b) Also, it was error to permit plaintiff to show by Exhibit A that the council had accepted a plat where plaintiff's lot was situated, as it confused the jury and made it appear the city had bound itself to permit a commercial building to be constructed (See Abs., p. 27). Nulsen v. Priesmeyer, supra. (c) And it was also error to permit plaintiff to introduce Exhibit C (a protest signed by sixty-one property owners) lecturing the city council for not giving plaintiff a building permit (See Abs., pp. 37, 38). Nulsen v. Priesmeyer, supra. (d) And thus it was error to admit into evidence the recorder of deeds' record of the deed (Exhibit E) (Abs., p. 53) wherein it was shown plaintiff's lot was reserved for a commercial lot as this was not only irrelevant and confusing but was not binding on the city. (e) The court erred in permitting witness Schaffner and plaintiff to testify that he, plaintiff and their wives had been sued for materials placed in the foundation on the lot, Abs., p. 78. Nulsen v. Priesmeyer, supra. (f) It was error for plaintiff to testify city employed special counsel to defend the mandamus suit. Nulsen v. Priesmeyer, supra. (g) A city cannot be made liable for exemplary damages. Hunt v. Boonville, 65 Mo. 624. (4) The court erred in admitting into evidence plaintiff's Exhibit C, the protest signed by sixty-one property owners (Abs., p. 38) because it was hearsay and said parties were not in court for cross-examination. United Factories v. Brigham, 117 S.W.2d 665. (5) The court erred in permitting witness Asel, mayor of the city at the time of the dispute, to testify he refused to sign an appeal bond because he believed plaintiff was within his rights, for the reason the city speaks through its records and not through the attitude of the mayor and because the city acts through its council as a group — not through the mayor, and said testimony was wholly without the issues (Abs., p. 85). Sec. 6803, R.S. Mo. 1929; Nulsen v. Priesmeyer, 30 Mo. App. 126. (6) Instruction No. 4 given by the court at the request of the plaintiff is confusing and sets out an improper measure of damages and also was improper because there was no evidence on which the jury could find "market value" at the time of the Supreme Court's decision. Jackels v. Kansas City Rys. Co., 231 S.W. 1023. (a) Measure of damages to a building or land is difference in value before and after injury. Rosen v. Kroger Grocery Baking Co., 5 S.W.2d 649.
William A. Seibel for respondent.
(1) (a) The city of Jefferson as a municipal corporation of the third class, could, within the scope of its corporative authority, have passed a valid zoning ordinance. Article 11, Chapter 38, R.S. Mo. 1929. (b) The city of Jefferson acted in an irregular, illegal and improper manner when it passed and enforced its interim zoning ordinance. State ex rel. Kramer v. Schwartz, 82 S.W.2d 63. (c) A municipal corporation is liable for the acts of its agents, injurious to others, those acts being within the corporate authority but done in an irregular, illegal, and improper manner. Dooley v. The City of Kansas, 82 Mo. 444; Worley v. Inhabitants of the Town of Columbia, 88 Mo. 106; Hunt v. Boonville, 65 Mo. 620; Thompson v. Boonville, 61 Mo. 283; Soulard v. St. Louis, 36 Mo. 546; Rowland v. City of Gallatin, 75 Mo. 134; In re Perley v. Inh. of Georgetown, 7 Gray 464; Dillon on Municipal Corp., secs. 968 and 966. (d) (1) In Worley v. Inhabitants of the Town of Columbia, the court stated as follows: "It is the rule in the State in this class of cases that the corporation is liable for the act of its agents, injurious to others, when the act is in its nature lawful and authorized, but done in an unlawful manner or unauthorized place . . ." Supra: Worley v. Inhabitants of the Town of Columbia, 88 Mo. l.c. 111. (2) And in Dooley v. the City of Kansas, the Supreme Court held as follows: "A corporation is civilly responsible for damages occasioned by an act, or a trespass or tort, done by its command by its agents, in relation to a matter within the scope for which it was incorporated." Supra: Dooley v. The City of Kansas, 82 Mo. l.c. 445. (2) (a) An officer is liable for damages caused by an alleged nonfeasance on proof showing an omission on his part to perform a duty devolved upon him by law. Evens Howard Fire Brick Co. v. Gammon et al., 204 S.W. 832. (b) An officer must respond to one who has sustained damages as a consequence of his failure to perform his duty even though said officer relied upon an unconstitutional ordinance for his refusal to act, such unconstitutional law affording no protection to the officer who acts under it. Anheuser Busch Brewing Asso. v. Hammond, 61 N.W. 1052; 122 Am. S.R. 391; 12 Ann. Cas. 961.
This is a damage suit wherein Herman Kramer is plaintiff and the City of Jefferson and Gustave V. Schwartz, building inspector of said city, are defendants. The claim for damages is based on the refusal of Schwartz, as building inspector, to grant plaintiff a certain building permit. The refusal to grant said permit was based on a zoning ordinance then in effect and which was thereafter judicially adjudged to be void. Jury trial resulted in verdict for plaintiff against both defendants. From the judgment rendered thereon both defendants appeal.
Plaintiff was the owner of a certain town lot, described in the petition, upon which he desired to construct a business building. Said lot was located in a block in which, by a zoning ordinance then in force, business buildings were prohibited. Plaintiff began excavation on said lot and then made application to defendant Schwartz for a building permit. Schwartz advised him that he could not issue said permit until same had been approved by a councilmanic committee of defendant city, but advised plaintiff that he believed the permit would be granted and for him to proceed with construction. Some five days thereafter, and after plaintiff had completed excavation and had constructed most of the foundation and had expended considerable money thereon, defendant city's committee refused to issue the permit. Plaintiff was arrested for violation of the ordinance. He was tried in police court and acquitted. His counsel advised him that the zoning ordinance was invalid and that he might legally continue construction, which, plaintiff stated, he would have done but for the fact that the building and loan company from which he expected to borrow the money to pay the cost of construction refused to loan it to him because of the refusal of the city to issue a building permit. Lacking otherfinances he could not proceed. The city attorney of defendant city, after acquittal of plaintiff, informed plaintiff he would arrest and prosecute plaintiff for every day he worked on said construction without a permit, claiming that each day plaintiff worked thereon would constitute a separate offense. Thereupon plaintiff's attorney agreed with said city attorney that construction work would cease pending the outcome of a mandamus suit to be filed against defendant Schwartz to compel issuance of a permit. Said suit was filed by plaintiff in circuit court of Cole county, that court held the zoning ordinance to be invalid, and ordered the permit to issue. Defendant appealed the cause and the Supreme Court affirmed the judgment of the trial court (State ex rel. Kramer v. Schwartz, 82 S.W.2d 63), after which action the permit was issued. Plaintiff claims that during the period elapsing from the time he first applied for the permit, November 1, 1931, until the granting of same, in 1935, he suffered damages by reason of the deterioration of the unfinished and unprotected foundation walls, loss of the income from his investment, depreciation in value of his property, etc.
The first error urged is that the court overruled demurrers filed by each of said defendants at the close of the whole case. In view of this complaint we have set forth the facts in the light most favorable to plaintiff.
We think the city would not be liable for the refusal of its officer, Schwartz, to grant a building permit when same was not allowable under the zoning ordinance then in effect, even though said ordinance was afterward held to be invalid. The ordinance in question was an abortive attempt, on the part of defendant city, to exercise a police power granted to it by the State under the provisions of Article 11, Chapter 38, Revised Statutes of Missouri, 1929. [State ex rel. v. Schwartz, 82 S.W.2d 63. l.c. 66.] The ordinance was, therefore, governmental in character. Its purpose was to regulate and control future building construction in said city in the interests of fire protection and control, and to regulate the distribution of population in the interests of better police protection, to persons and property, and in the interests of the public health and general welfare. Its enforcement would not have inured to the special benefit of the corporation. The act of defendant Schwartz in refusing to issue the permit because of the provisions of the ordinance, was, therefore, of a governmental character for which the corporation is no more liable to respond in damages than would be the State because of the act of one of its officers in carrying out the provisions of an invalid statute. [Hershberg v. City of Barbourville, 142 Ky. 60, l.c. 62; Simpson v. Whatcom, 33 Wn. 392; Trammell v. Town of Russellville et al., 34 Ark. 105; Franks v. Holly Grove, 93 Ark. 250; City of Chicago v. N.Y.C. St. L.R. Co., 216 F. 735, l.c. 740; Seattle Electric Company v. City of Seattle, 206 F. 955, l.c. 959; Maxmilian v. Mayor, 62 N.Y. 160; Worley v. Columbia, 88 Mo. 106, l.c. 107; Lober v. Kansas City, 74 S.W.2d 815, l.c. 823; Butler v. Moberly, 131 Mo. App. 172, l.c. 176, 177, 178.]
This court said, speaking thru ELLISON, J., in the last above cited case:
"But it is alleged that upon his acquittal and the City's appeal from the police judge, the city's officers deterred him from continuing in the business by threatening to cause similar complaints to be filed against him and to cause him to be prosecuted thereunder for each day he should engage in the business during the appeal. Is a municipality liable in damages for one threat of its officers to prosecute for a violation of one of its ordinances? It is liable in costs for such prosecutions if they are unfounded. And if such unfounded prosecutions were to be maliciously repeated without reason, the officers might themselves become liable for some malfeasance. But we do not now see how the city is to be made liable for such threat, or upon what principle such position, if taken, could be sustained. If the threat to file complaint for a violation of an ordinance is made when there has been no violation, then it ought not to frighten or deter one from continuing on his way. If the threat is made against a guilty party, or one who would become guilty if he did the act, then the threat would not be wrong in any respect. So if plaintiff was not subject to prosecution for peddling fresh meats and the officers were engaged, in spite, in annoying him with prosecutions, or threats of prosecution, it was a wrong for which the city could not be held liable. To threaten one with repeated prosecutions is not a part of the duty which an officer should render to a municipality. In Worley v. Columbia, 88 Mo. 106, it is held that a municipality is not liable for injuries and tortious acts of its officers which are in their nature unlawful or are prohibited.
"The second count also fails to state a cause of action. It is based on the officer's wrongful refusal to issue him a peddler's license. It would be a dangerous and hazardous system of municipal government, if it were understood to be a part of it, that liability ensued for the mistake of its ministerial officers in refusing to do an act which is of such nature that the party need not acquiesce in the refusal, but who had an immediate and effective remedy at hand. Here if the city wrongfully refused to issue him a license he could have compelled the issuance by mandamus. [State ex rel. v. Ashbrook, 154 Mo. 375.] So it is not to be supposed that one shall acquiesce in the wrongful refusal of an officer to perform his duty for the purpose of lying by and building up damages. But aside from this, it was such an act as fails without the rule of respondeat superior, as applied in municipal law.
"We have given due consideration to the argument, oral and written, concerning the distinction in liability where the act of the municipality complained of is for its private gain, and where it is for its general public concern and government, but we think that branch of the law is not applicable to the facts stated in the petition."
In Worley v. Columbia, supra, it was held that a police officer, when acting in enforcing police regulartions of the town, was not acting as an agent of the corporation but in the interests of civil government and of the public.
In Lober v. Kansas City, supra, it was held that the negligent act of an employee of the city in breaking a fire hydrant used for the governmental purposes of fire protection and street sanitation, such employee then being engaged in flushing the streets, was one for which the corporation was not liable since the employee and the instrumentality were both devoted exclusively to governmental functions.
We have carefully examined Souland v. City of St. Louis, 36 Mo. 339; Hunt v. City of Boonville, 65 Mo. 620, and Dooley v. City of Kansas, 82 Mo. 444, l.c. 445, relied on strongly by plaintiff, and find that in each of said cases the corporation's agents and officers, acting with the consent and knowledge of the corporation, did certain acts which were within the scope of the authority of the corporation, as a corporation, and which acts benefited the corporation as such. Such cases have no application here.
We have also examined Rowland v. City of Gallatin, 75 Mo. 134, and Thompson v. City of Boonville, 61 Mo. 282, relied on by plaintiff, and find them not applicable because there the officers of the city acted in matters within the scope of the authority and power of the corporation as such, but with no charter or ordinance authority for their acts. In such cases the officers are liable for their tortious trespasses; but not the city.
The facts pleaded and proved failed to establish that said defendant city is liable to respond in damages and its demurrer should have been sustained.
In ruling on the demurrer filed by defendant Schwartz we are mindful that there is neither allegation nor proof that he did anything more than refuse the issuance of the permit; and that when the circuit court, by its writ of mandamus, ordered him to issue said permit, he appealed from said order. He complied with the order of the Supreme Court. It is not charged that he caused the arrest of plaintiff; that he threatened to harass him with further arrests; or that he acted with malice. So far as this record shows, Schwartz acted at all times in good faith. He merely refused to grant the permit in violation of a city ordinance until the court of last resort declared said ordinance to be void. In so doing he was within his rights. If a public official is required to judge of the validity of ordinances and statutes at his peril, and at his peril only may he resort to the courts for guidance, then he is required to know more law than half of the lawyers, and, mayhap, more than the courts themselves, exclusive of the Supreme Court. To illustrate: One ground for the attack on the validity of the ordinance in question, urged by plaintiff's counsel in the mandamus action, was the alleged unconstitutionality of the statutes authorizing defendant city to enact a zoning ordinance (Article 11, Chapter 38, Revised Statutes of Missouri. 1929). [Kramer v. Schwartz, supra.] But the Supreme Court, in that action failed to hold said statutory enactment unconstitutional. If liability be ruled against a public official, in a case similar to this, we apprehend that very many able men would refuse to accept public office, either by election or by appointment; and the public service would suffer thereby. The language used in Butler v. Moberly, supra, is to the effect that, in such cases as this, the official is not liable. That is the law as clearly stated in other jurisdictions. [Anheuser-Busch Brewing Ass'n v. Hammond (Iowa), 61 N.W. 1052; Trammell v. Town of Russellville et al., supra.] The law was so declared by the Supreme Court of Missouri in Reed v. Conway, 20 Mo. 22, l.c. 44; and was thereafter reaffirmed by that court in Edwards v. Ferguson, 73 Mo. 686, l.c. 687. It is the general rule. [46 C.J. 1043.]
The court erred in failing to sustain the demurrer offered by defendant Schwartz at the close of the case.
There are many other errors urged by defendants, which we have not considered because of our opinion as above set forth.
The judgment should be reversed. Campbell, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed. Shain, P.J., and Bland, J., concur; Kemp, J., not sitting because not a member of the court at time the cause was argued and submitted.