City of St. Louis v. Gleason

• Decision Date: 01 April 1886
• Citation: 89 Mo. 67,14 S.W. 768
• Court: Missouri Supreme Court
• Parties: CITY OF ST. LOUIS v. GLEASON et al.<SMALL><SUP>1</SUP></SMALL>

14 S.W. 768

89 Mo. 67

CITY OF ST. LOUIS v. GLEASON et al.¹

Supreme Court of Missouri.

April Term, 1886.

OPENING STREETS — PROCEDURE.

A petition to appropriate private property for opening a street, filed by the city of St. Louis, under Rev. St. Mo. 1879, p. 1606, § 2, must show that the ordinance opening the street was passed on the unanimous recommendation of the board of public improvements, or on a petition of the owners of a major portion of the ground fronting on the street; said section 2 providing that, whenever the assembly shall provide for opening a street by an ordinance so passed, the city may proceed to appropriate private property by petition to the circuit court.

Appeal from St. Louis court of appeals.

W. C. Marshall, for appellants. Leverett Bell, for respondent.

HENRY, C. J.

The following is the statement of the case made by the court of appeals, (15 Mo. App. 25,) which we adopt: "This is a proceeding instituted by the city of St. Louis, under the provisions of its charter, and of an ordinance purporting to be passed in pursuance thereof, to establish and open Benton street in said city, from Jefferson avenue to Garrison avenue. Commissioners were appointed, who made a report to the court. Exceptions were filed by certain property owners to the same. These exceptions were overruled; the report confirmed; judgment entered accordingly; and an appeal has been taken to this court. The petition fails to show that the ordinance on which the proceeding is based was passed on the unanimous recommendation of the board of public improvements, or on the petition of the owner of the major part of the property fronting on the proposed street, as required by section 2 of article 6 of the charter. 2 Rev. St. p. 1606. This section reads as follows: `Whenever the assembly shall provide by ordinance for establishing, opening, widening, or altering any street, avenue, alley, wharf, market place, or public square, or route for sewer or water-pipe, either on the unanimous recommendation of the board of public improvements, or on the petition of the owners of the major portion of the ground fronting thereon, and it becomes necessary for that purpose to appropriate private property, the city counselor, in the name of the city of St. Louis, shall apply to the circuit court of the eighth judicial district, or to any one of the judges in vacation, by petition,' etc. The question, then, is [say the court of appeals] whether, in order to give jurisdiction to the circuit court to entertain a proceeding thereunder, it is necessary for the petition to show that the ordinance was passed either on the unanimous recommendation of the board of public improvements, or on the petition of the owners of a major portion of the ground fronting on the proposed street. It is a proceeding in which the circuit court exercises a special jurisdiction conferred by statute; and the rule in such cases is that the facts showing jurisdiction must affirmatively appear, [citing cases which abundantly support the proposition.] The ordinance recited in the...