City of St. Louis v. Christian Brothers College
| Decision Date | 13 April 1914 |
| Citation | 165 S.W. 1057,257 Mo. 541 |
| Parties | CITY OF ST. LOUIS, Appellant, v. CHRISTIAN BROTHERS COLLEGE et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. C. C. Allen Judge.
Reversed and remanded.
William B. Baird and E. E. Pearcy for appellant.
(1) The passage of the ordinance authorizing the city counselor to cause Kingshighway to be established as a boulevard, is not a condemnation of the property described in the ordinance. Mining Co. v. City of Joplin, 124 Mo. 138; City v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. 485; 3 Dillon on Municipal Corporations (5 Ed.), p. 1640 sec. 1036; 2 Lewis on Eminent Domain (3 Ed.), p. 911, sec 505, and p. 913, sec. 506; Secs. 1 and 2, art. 6, Charter of St. Louis. (2) Whatever the English rule may be, the well established American rule is that no contractual relation is established by the mere passage of an ordinance authorizing the condemnation of property by a municipal corporation for public use and that the proceeding may be dismissed before the property is condemned and paid for. Kansas City v. Railroad, 189 Mo. 245; Simpson v. Kansas City, 111 Mo. 242; Brewing Assn. v. St. Louis, 168 Mo. 44; Real Estate Co. v. St. Louis, 170 Mo. 31; Eyssell v. St. Louis, 168 Mo. 607; District of Columbia v. Hess, 35 App. D. C. 38; 28 L.R.A. (N.S.) 91 and note; Nixon v. Marr, 190 F. 915; 2 Lewis on Eminent Domain (3 Ed.), p. 1669-83, secs. 954-955; Charter of St. Louis, art. 6, secs. 1, 2, 9 and 10; 3 Dillon on Municipal Corporations (5 Ed.), p. 1651, sec. 1044, and note 1; Art. 2, sec. 21, Constitution; Sec. 9762, R. S. 1909. (3) As the boulevard authorized to be established by the ordinance had not been established by law, the provision of the charter requiring the consent in writing of the owners of at least two-thirds in frontage thereon did not apply. Charter of St. Louis, art. 6, secs. 1 to 11; Authorities cited above.
W. B. & Ford W. Thompson for respondent W. B. Thompson.
(1) Ordinance No. 22946 was a partial performance of a contract made with the taxpayers of St. Louis to establish, open, and construct Kingshighway boulevard, which contract is both express and implied: (a) Under section 1 of article 6 of the amendment to the charter of the city of St. Louis authorizing the construction of boulevards. (b) Under section 12 of article 10 of the amendment to the Constitution of the State adopted at an election held November 4, 1902, authorizing the issuance of additional bonds by St. Louis. (c) By the terms and provisions of paragraph 1 of section 26 of article 3 of the charter, as amended on June 12, 1903, providing for the issuance of negotiable bonds within the limits prescribed by the above amendment of the Constitution of the State. (d) By the provisions of sections 6350-6354, R. S. 1899, and the amendments thereto. (e) Under the provisions of Ordinance No. 22,366, entitled, "An ordinance authorizing the issue of bonds of the city of St. Louis, not exceeding, in aggregate, $ 11,200,000 in the respective amounts and for the respective purposes herein specifically stated, upon two-thirds of the voters of the city of St. Louis voting thereon and assenting thereto, and the holding of an election for the purpose of submitting said proposition to the voters," approved April 3, 1906, and in pursuance of the election held by the voters of the city on June 12, 1906, in which nine separate propositions for increasing the indebtedness of said city, as set forth in said ordinance were ratified by more than two-thirds of the qualified voters of the city. (f) By the provisions of Ordinance No. 22,674, declaring the result of a special election called by Ordinance No. 22,366, held on June 12, 1906, and directing the issue of the bonds of the city of St. Louis in the sum of $ 11,200,000, as authorized by the vote at said election. (g) By the construction placed upon all of these acts by the State and by the city of St. Louis, in the case of Haeussler v. St. Louis, 205 Mo. 656. (h) By the assessment of taxes by the city of St. Louis to pay the interest on said bonds. (2) The ordinance in terms provides for the establishment, opening and construction of said Kingshighway boulevard, in accordance with section 1 of article 6 of the charter of the city of St. Louis, in this (a) By its name; (b) by its boundaries; (c) by its construction; (d) by its restrictions as to structures to be erected thereon, together with its restrictions of its building lines; (e) by the exclusion of any business house; (f) by the penalties for any violation of the provisions of the ordinance; (g) it gives authority to the city counselor to proceed for condemnation in any manner authorized by law. (3) The repealing ordinance is by its terms in violation of the provisions of section 1 of article 6 of the charter, because: (a) Section 1 is an attempt to repeal the boulevard ordinance, without complying with the provisions of section 1 of article 6 of the charter. (b) Section 2, on its face, shows that Kingshighway boulevard, from Easton avenue to Penrose street, was established, and that said section recites that it is an effort to change a boulevard that was established into a street. (c) Section 3 is an attempt to define the lines of a public highway that was already established as a boulevard, but does not refer to any public highway that existed before the adoption of the boulevard ordinance. (d) Section 4 is simply a provision authorizing the city counselor to cause Kingshighway street to be opened according to law. (4) It appears affirmatively by the recitals of the Ordinance No. 22,946, known as the "Boulevard Ordinance," that the highway was already established between Easton avenue and Penrose street, and that such highway was changed by that ordinance into a boulevard, in compliance with section 1 of article 6 of the charter, and that Ordinance No. 24,220 did not, by repealing Ordinance No. 22,946, affect in any manner the highway that was already established before the passage of the boulevard ordinance: (a) because said ordinance on its face does nothing but repeal the boulevard ordinance; (b) it establishes a highway and does not in any manner attempt to change the former highway that existed before the adoption of the boulevard ordinance, and does not create a new highway. (c) If it does anything, it creates another highway where one is already established, without repealing the ordinance creating the first highway. (5) Section 1 of article 6 of the charter provides a right to the property holder to insist upon the assessment of damages for the repeal of the ordinance, and which, if denied, is a breach of the provisions of the charter, and entitles him to damages in the manner provided for in the charter: (a) for the loss of the boulevard; (b) for the delay of the city in proceeding with the boulevard; (c) for the loss of the use of his property before the repeal of the ordinance; (d) for the damages resulting from the restrictions of building on his property; (e) for the damages for the taking of his property up to the building lines; (f) for the procedure of condemnation by the city to ascertain the damage. (6) The right created in section 1 of article 6 of the charter in favor of abutting property whenever a boulevard ordinance is repealed, is analogous to the situation of a vendor and vendee of property as established in the English rule on this subject, where public authorities have announced their intention to take private property for public use. 3 Dillon (5 Ed.), sec. 1014, note 1, on page 1652; King v. Market Commrs., 1 B. & Ad. 335; King v. Market Commrs., Id., 327-332; Stone v. Railroad, 4 M. &. C. 124; Towney v. Railroad, 16 L. J. (N.S.) Eq. 282; Walker v. Eastern Counties Co., 6 Hare, 594; Haynes v. Eastern Counties Co., 1 Drew & S. M. 426; In re Park Commrs., 56 N.Y. 148. (7) In every decision in this State construing the power of cities to exercise the right of eminent domain in opening streets, the general rule is that the project may be abandoned and the proceedings discontinued at any time before vested rights in others have attached. Such general rule does not apply where there is an express legislative enactment limiting the city's power to abandon. Charter of St. Louis, art. 6, secs. 4, 5, 8, 9, 11, 14; Nixon v. Marr, 190 F. 913; 3 Dillon (5 Ed.), sec. 1044; 2 Lewis on Eminent Domain (3 Ed.), secs. 954-955, pp. 1669, 1683; Kansas City v. Railroad, 189 Mo. 258; D. C. v. Hess, 35 App. D. C. 38, 28 L.R.A. (N.S.) 91. (8) It is an elemental rule of law that all grants by the government must be strictly construed. This is especially true of the power of eminent domain, which is more harsh and peremptory in its exercise and operation than any other. 1 Lewis on Eminent Domain (3 Ed.), sec. 388; Belcher v. St. Louis Grain Co., 82 Mo. 121; Railroad v. Davis, 197 Mo. 669; Cox v. Tifton, 18 Mo.App. 430; Chandler v. Reading, 129 Mo.App. 63; Note in Woerner's Revised Code, p. 386. And courts cannot dispense with the forms and conditions prescribed by law, on the notion that they are not essential. The very fact that they are prescribed makes them matters of substance. 1 Lewis on Eminent Domain, 397. And "if there remains a doubt as to the extent of the power, after all reasonable intendment in its favor, the doubt should be received adversely to the claim of power." 1 Lewis on Eminent Domain, sec. 388; Parker v. Adams, 55 N. J. L. 334.
Eliot, Chaplin, Blayney & Bedal for respondent Hydraulic Press Brick Co.
OPINION
In Banc
-- Action to widen street. From a judgment for defendants plaintiff appeals.
In the city of St. Louis there has existed for many years a thoroughfare...
To continue reading
Request your trial