Summary
In Lux v. Milwaukee Mechanics' Insurance Co., 322 Mo. 342, 5 S.W.2d 343, 344, a building was condemned under an ordinance conferring "full discretionary powers" upon the officials to declare a public nuisance any structure unsafe from fire.
Summary of this case from F G Ins. Corp. v. MondzelewskiOpinion
March 27, 1929.
1. ORDINANCES: Part of Contract. The general doctrine is that where parties contract with a subject which is hedged about by valid statutory provisions, they are presumed to have made the contract in view of such statutes, and they become a part of the contract.
2. ____: Insurance: Destruction of Property: Validity. Where all the dwelling house was destroyed by fire except the outside and the framework, ordinances which declare the remaining parts to be a public nuisance and require them to be torn down, if unconstitutional and invalid, do not become a part of the contract of fire insurance, unless it is expressly agreed that they are binding upon the insurer.
3. ____: Public Nuisance: Administrative Discretion. The general rule is that an ordinance which attempts to clothe an administrative officer with arbitrary discretion, without a definite standard or rule for his guidance, is an unwarranted attempt to delegate legislative functions to such officer, and for that reason is unconstitutional; and while there are well defined exceptions to the rule, an ordinance which clothes the superintendent of buildings with full discretionary power to declare any building which becomes unsafe from fire to be a public nuisance and authorizes him to take immediate steps to abate the nuisance by requiring the building to be torn down, does not come within any recognized exception, and is invalid and void.
4. NUISANCE: Property Rights: Emergency: Legislative Function. The owner of a building has vested property rights therein which cannot be destroyed under the guise that it is a nuisance, except in cases of great emergency; and whether the emergency exists is a legislative function; and while a valid ordinance may be enacted which fixes a standard or guide by which an administrative officer may determine when the emergency exists, an ordinance which vests an administrative officer with full discretionary power to declare any building which has been partly destroyed by fire to be a public nuisance and to require it to be torn down vests in him arbitrary legislative power and is invalid.
5. INSURANCE: Dwelling Partly Destroyed by Fire: Required to be Torn Down: Recovery. A dwelling house, covered by fire insurance, was burned in such a manner that its outside and framework were left standing. The superintendent of buildings required that the remaining parts be torn down at once, and in obedience to the order they were torn down. The superintendent acted under an ordinance which gave him "full discretionary power to declare any building to be a public nuisance which has become unsafe from fire, and to take such steps as may be necessary for the immediate abatement of all such nuisances." Another ordinance provided that any occupant of a building who failed to comply with the order of the superintendent to tear it down would be guilty of a misdemeanor. Held, that the ordinance was void, and the act of the insured in tearing down the building was voluntary, and therefore not binding upon the insurer, and the insured cannot, in a suit on the insurance policy, recover the value of the part torn down.
Appeal from Jackson Circuit Court. — Hon. Ralph S. Latshaw, Judge.
REVERSED AND REMANDED.
Fyke, Hume Hall for appellant.
(1) The ordinance is unconstitutional, unreasonable and invalid. The city could not confer upon an individual the power to determine what is or is not a nuisance. Indeed, the city, itself, could not declare that to be a nuisance which is not in fact a nuisance. Yates v. Milwaukee, 77 U.S. 497; Hays v. Poplar Bluff, 263 Mo. 516; St. Louis v. Dreisoerner, 243 Mo. 247; Allison v. Richmond, 51 Mo. App. 133; Crossman v. Galveston, 247 S.W. 810; City of Texarkana v. Reagan, 247 S.W. 816; Gouin v. Ins. Co., 259 P. 387; Mayor v. Busticke, 49 Md. 217; Commonwealth v. Malitsky, 203 Mass. 241; Chicago v. Mathis, 320 Ill. 362; Merchants Exchange v. Knott, 212 Mo. 616. (2) Under the city charter power is conferred upon the Common Council "to declare, prevent and abate nuisances on public or private property and the cause thereof." Charter, art. 3, sec. 16. This power is vested in the council only, and cannot be delegated. The court, therefore, erred in overruling defendant's objections to the introduction of the ordinance. Authorities supra; Merchants Exchange v. Knott, supra. (3) The court erred in giving plaintiff's instruction, because it assumes that under the law and the evidence the "burned building" of plaintiff was a total loss. The plaintiff introduced no evidence as to the extent of the damage to the building by fire, and the only theory upon which the court could base this peremptory instruction is that regardless of the extent of the damage done by fire, the mere fact that the building was ordered torn down by an inspector constituted a total loss. By this instruction the court assumed that the action of the building inspector was conclusive. This was error. Findley-Kehl Inv. Co. v. O'Connor, 256 S.W. 800.
Frank M. Lowe, I.M. Lux and John D. Wendorff for respondent.
(1) The ordinance assailed by appellant as unconstitutional was not a legislative function, but a proper exercise of police powers, and the action of the Superintendent of Buildings thereunder in condemning said building and notifying and ordering respondent to tear down the burned and dangerous structure that remained, and the tearing down of same by respondent, was proper and in accordance with and in obedience to said ordinance and the proper exercise of the police powers, and the trial court did not commit error in so holding. Lux v. Mechanics Ins. Co., 295 S.W. 850; St. Louis v. Nash, 260 S.W. 986; Ex parte Lerner, 281 Mo. 25; St. Louis v. Dreisoerner, 147 S.W. 1000; Gunning Co. v. St. Louis, 235 Mo. 200; Slaughter House Cases, 16 Wall. (83 U.S.) 36. (2) A constitutional question is not in this case. Appellant, being a foreign insurance company, will not be heard to complain of the constitutionality of the ordinance in question, which is merely a police regulation. Cheek v. Ins. Co., 192 S.W. 392; Daggs v. Ins. Co., 136 Mo. 382; Equitable Ins. Co. v. Vandiver, 222 Mo. 206. (3) The court did not commit any error in admitting in evidence said ordinance. Monteleone v. Ins. Co., 18 So. 472; Hamburg-Bremen Ins. Co. v. Garlington, 16 Tex. 103; Bradley v. N.W. Ins. Co., 11 Mich. 425; Larkin v. Ins. Co., 80 Minn. 527; 26 C.J. 351, sec. 448. (4) The giving of respondent's instruction which told the jury that under the law and the evidence the building in question was a total loss was proper. Lux v. Mechanics Ins. Co., 295 S.W. 847; O'Keefe v. Ins. Co., 140 Mo. 558; Stevens v. Fire Ins. Co., 120 Mo. App. 88; Stubbins v. Mut. Ins. Co., 229 S.W. 407; Rutherford v. Royal Ins. Co., 12 F.2d 880. (5) Appellant is bound by the value of the house fixed by the insurance policy. Sec. 7020, R.S. 1909, Sec. 6229, R.S. 1919; Ward v. Ins. Co., 262 S.W. 454; State ex rel. Burton v. Allen, 278 S.W. (Mo.) 774; Painter v. Ins. Co., 256 S.W. 533; Avery v. Mechanics Ins. Co., 280 S.W. 727; Joyce v. Ins. Co., 211 S.W. 390; City of Aurora v. Ins. Co., 180 Mo. App. 263. (6) Ministerial powers may be delegated. Bigelow v. Springfield, 178 Mo. App. 463; Edwards v. City of Kirksville, 147 Mo. App. 599; Barber Asphalt Paving Co. v. Thomlinson, 141 Mo. App. 422.
Plaintiff brought suit March 15, 1918, upon a fire insurance policy, for the destruction of a dwelling house. He recovered judgment for $3500, the full amount of the policy, together with interest thereon to September, 1927, the date of the trial, amounting in all to $5499.38.
Plaintiff's petition alleges that on January 30, 1918, while the policy of insurance was in force, his house located at 3604 Thompson Avenue, Kansas City, Missouri, was destroyed by fire; that it was burned in such manner that the outside and frame work remained standing after the fire; that on or about February 15th, plaintiff received a notice from the Superintendent of Buildings of Kansas City, Missouri, directing him to tear down the building at once, and in accordance with the notice he tore it down.
Plaintiff introduced in evidence Section 8 of Ordinance 38919 of Kansas City, as follows:
"The Superintendent of Buildings shall have full discretionary powers of declaring to be a public nuisance, any building, any structure or part thereof that is unsafe as to fire or for the purpose used or has become unsafe from fire, decay or other causes and shall institute such proceedings and take such steps as may be necessary for the immediate abatement of any and all such nuisances."
Defendant's objection to the introduction of the ordinance was overruled.
Ordinance No. 255 was introduced over the objection of defendant. This ordinance provides that any occupant of a building who fails to comply with a notice given him by the Superintendent of Buildings, requiring him to tear down a building, should be guilty of a misdemeanor. The notice which plaintiff received from the Superintendent of Buildings, directing him to tear down the house, was received in evidence over defendant's objection. Evidence showing what the Superintendent of Buildings found when he inspected the house was also introduced in evidence over the objection of defendant.
Defendant offered to show that the damage to the building, and the amount necessary to repair it, was $1403. This offer was rejected.
Defendant alleged in its answer that the ordinances in question were unconstitutional and void, and objected to their introduction in evidence on that ground. Hence the jurisdiction of this court.
Plaintiff's contention is that the Superintendent of Buildings was authorized to order the building torn down, and destruction of the building in pursuance to his order made it a total loss to him, whether in fact the building was entirely destroyed by fire or not.
The theory of this contention is that the ordinances in question were a part of the contract of insurance and that defendant is bound by their provisions. This claim is in accord with the general doctrine that where parties contract with reference to a subject which is hedged about by statutory provisions, they are presumed to have made the contract in view of such statutes, and the same becomes a part of their contract.
Defendant does not dispute this proposition of law, but contends that the ordinances are unconstitutional and void, and for that reason are not part of the contract of insurance and not binding on either party.
If defendant had expressly agreed that in case plaintiff's building became unsafe from fire, the Superintendent of Buildings should have full discretionary power to declare it a public nuisance and order its destruction, a different question would be presented. Defendant made no such agreement. While the law presumes that defendant had knowledge of all existing ordinances touching the subject of its contract, there is no presumption that it agreed to be bound by the provisions of an unconstitutional ordinance.
The ordinance in question clothes the Superintendent of Buildings with full discretionary power to declare any building which becomes unsafe from fire to be a public nuisance and authorizes him to take immediate steps to abate such nuisance.
There is no doubt that the Common Council of Kansas City has both express and implied power to declare what shall be a nuisance within the city limits, subject, of course, to the limitation that it has no authority or power to declare that to be a nuisance which in fact is not a nuisance (St. Louis v. Dreisoerner, 243 Mo. 217, and cases cited), but the ordinance in question does not declare what conditions or circumstances will render a building unsafe, and does not fix any standard or rule for the guidance of the Superintendent of Buildings in determining whether or not a building is unsafe and therefore a nuisance, but leaves the determining of these questions to the unbridled discretion of an administrative officer.
The general rule is that any ordinance which attempts to clothe an administrative officer with arbitrary discretion without a definite standard or rule for his guidance, is an unwarranted attempt to delegate legislative functions to such officer and for that reason is unconstitutional. [Hays v. Poplar Bluff, 263 Mo. 516; Ex parte Cavanaugh, 313 Mo. l.c. 381; City of Shreveport v. Herndon, 105 So. 244, and numerous cases cited; People v. Sholem, 294 Ill. 204, 128 N.E. 377.]
Since the ordinance under consideration falls within the prohibition of this general rule, it is unconstitutional and therefore void, unless it comes within one of the exceptions to this rule. The exceptions to the general rule are in situations and circumstances where necessity would require the vesting of discretion in the officer charged with the enforcement of an ordinance, as where it would be either impracticable or impossible to fix a definite rule or standard, or where the discretion vested in the officer related to the enforcement of a police regulation requiring prompt exercise of judgment.
The ordinance does not come within either of these exceptions.
It would have been both possible and practical for the Common Council to have fixed a standard in this ordinance for the guidance of the Superintendent of Buildings in its enforcement. If, for instance, the ordinance had provided that the Superintendent of Buildings should have discretionary power to order the destruction of a building which had been damaged by fire, where the walls were left standing, and were so situated and in such condition that they were liable to fall upon and injure persons passing by, or fall upon and damage or destroy adjacent property before the owner would have either time or opportunity to repair the house, such provision, as well as others that might have been made, would have furnished a rule or guide for the officer charged with the enforcement of the ordinance, from which he could have determined whether or not it would have been a violation of the ordinance to let the building stand. Such an ordinance would be valid. A city council has power to delegate to an administrative officer power to determine when the provisions of an ordinance are being disobeyed. [City of St. Louis v. Kellmann, 243 S.W. 134; Spiegler v. City of Chicago, 216 Ill. 114, 74 N.E. 718; People v. Robertson, 302 Ill. 422, 134 N.E. 815, 22 A.L.R. 835.]
Speaking to a like question in Crossman v. City of Galveston, 247 S.W. 811, 814, the Supreme Court of Texas said,
"We are not to be understood as holding that a municipality cannot enact a valid ordinance providing for the summary abatement, without the necessity of a judicial hearing, of certain classes of nuisances. On the contrary, we recognize the general doctrine that in the case of a public emergency — as, for example, a fire, or raging pestilence, or other threatening public calamity, presenting an imminent and controlling exigency, before which, of necessity, all private rights must immediately give way — a municipality may summarily destroy property to abate or prevent the impending injury. [Stockwell v. State, supra; Keller v. City of Corpus Christi, 50 Tex. 614, 32 Am. Rep. 613.]"
The owner of a building has vested property rights therein which cannot be summarily destroyed under the guise that the building is a nuisance, except in cases of great emergency. In Wood on Nuisances, section 7, it is said:
". . . Therefore, except in cases of great public emergency, when the emergency may safely be regarded as so strong as to justify extraordinary measures upon the ground of paramount necessity, or when the use of property complained of is so clearly a nuisance as to leave no room for doubt upon the subject, it is the better course to secure an adjudication from the courts before proceeding to abate it. . . ."
A building may become unsafe from fire, decay or other causes, and yet the danger from such unsafe condition may not be imminent or threatening. If, under such circumstances, the unsafe condition of the building could be remedied by repair, the owner of the building should be given an opportunity to make such repairs before his property is destroyed. In Crossman v. City of Galveston, supra, it is said,
"The power given municipalities to abate nuisances is not an unrestricted power. The abatement must be limited to the necessity of the case, and no wanton or unnecessary injury to the property or rights of individuals must be permitted. While a building may be destroyed under certain circumstances, or if erected in violation of a valid ordinance, yet, if lawfully erected, as in this case, it cannot be demolished if the nuisance alleged against it can in any other way — as, for example, by cleaning, disinfection or repair — be abated. [Joyce on Nuisances, Secs. 346, 349, 350; Miller v. Burch, 32 Tex. 209, 5 Am. Rep. 242; Health Dept. v. Dassori, 21 A.D. 348, 355, 47 N.Y.S. 641.] The building here involved having been lawfully erected, if the nuisance charged against it may be abated by repair, then that remedy should be first awarded."
We are not holding that a city may not provide by ordinance the circumstances and conditions which would create an emergency justifying the summary destruction of property in order to protect the lives and property of citizens from an imminent and threatening danger. We recognize that this may be done by a valid ordinance. What we do hold is that the determination of what conditions and circumstances would create such an emergency, is a legislative function, to be exercised by the council and not delegated to an administrative officer.
There is no evidence in the case tending to show that the condition of the house was such that its destruction was necessary to avoid threatened injury to either persons or property.
It is our conclusion that the ordinance under which the Superintendent of Buildings acted in ordering the house torn down, is unconstitutional and void, and that the act of plaintiff in tearing it down was voluntary and, therefore, not binding on defendant.
In event of a retrial of the case, the issue of total destruction of the house by fire so that it lost its identity and specific character as a dwelling house, should be submitted unembarrassed by any destruction under orders of the Superintendent of Buildings.
Judgment reversed and cause remanded. All concur, except Walker, J., who dissents.