Pash v. City of St. Joseph

• Citation: 165 S.W. 710,257 Mo. 332
• Parties: PASH v. CITY OF ST. JOSEPH.
• Decision Date: 10 February 1914
• Court: United States State Supreme Court of Missouri

165 S.W. 710

257 Mo. 332

PASH v. CITY OF ST. JOSEPH.

Supreme Court of Missouri.

February 10, 1914.

Rehearing Denied April 2, 1914.

EMINENT DOMAIN (§ 169) — PARKS — ESTABLISHMENT — CONDEMNATION — CONDITION PRECEDENT.

Under Rev. St. 1909, § 8725, relating to cities of the first class, and providing that the park commissioners "shall" recommend a division of territory into park districts, which shall be established by ordinance, a judgment of the circuit court, levying special assessments on real property for the establishment of parks in a city of the first class, is void, where the city was not divided into districts until nearly a year after the institution of the condemnation proceedings, and after the jury had begun to hear evidence as to special benefits, for, though the circuit court is one of general jurisdiction, it has no authority to establish park districts, and special assessments for the establishment of parks cannot be imposed until the districts have been fixed, so that the property holders can estimate the benefits.

In Banc. Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge.

Action by Mary C. Pash against the City of St. Joseph. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This suit was instituted in the circuit court of Buchanan county, June 9, 1913, by the appellant, in her own behalf and that of several hundred other property owners similarly situated, to enjoin the respondent, the city of St. Joseph, a city of the first class, from enforcing a judgment of said court, rendered January 28, 1913, making or levying special assessments on real property situate therein for the purpose of purchasing a site for a public park in said city, and to cancel said judgment as a lien upon their real estate, and to remove the cloud cast thereby upon the titles to their said property. A demurrer was filed to the petition, which was by the court sustained; and, the plaintiff declining to plead farther, judgment was rendered accordingly for the defendant. From that judgment the plaintiff duly appealed the cause to this court.

The material facts of the case, as stated in the petition and admitted by the demurrer of the city to be true, are but few, and are as follows: The city of St. Joseph is a city of the first class; and on February 1, 1911, it duly enacted special ordinance numbered 5722, condemning certain land in said city for the purposes of a public park, parkway, etc., which need not be set out. That on July 10, 1911, said city filed in the circuit court of said city a certified copy of said ordinance, as provided for by its charter. That on said day said court made an order fixing August 14, 1911, the date for impaneling a jury to assess the benefits that would result to the property by virtue of the establishment of said park. Notice of said order was duly given, and proof thereof was duly filed on said last-named date; and, on the 21st of same month, said court made an order impaneling a jury to assess the benefits. Thereafter, on November 6, 1911, and during the October term of said court, the jury was duly sworn, and the cause was submitted to it, and the taking of the evidence in the cause was begun. Thereafter, on January 16, 1912, the common council of said city duly, for the first time, enacted a special ordinance dividing the territory of said city into three park districts numbered 1, 2, and 3. Thereafter, on August 12, 1912, during the May term of said court, the jury returned its verdict into said court assessing said benefits, which was duly filed; and on January 28, 1913, during the January term thereof, said court, after hearing all objections and exceptions to the verdict of the jury, overruled the same and rendered final judgment confirming the verdict of the jury assessing the benefits complained of. And for the nullification of that judgment, as previously stated, this suit was instituted.

Thos. B. Allen, of St. Joseph, for appellant. Frank B. Fulkerson and W. B. Norris, both of St. Joseph, for respondent.

WOODSON, J. (after stating the facts as above).

I. While counsel for each party present and discuss a number of propositions, yet it is not necessary to consider but one of them, because all others are predicated upon that one, and, whichever way it is decided, they must follow.

From the statement of the case it is seen that the condemnation proceedings which resulted in assessing the special benefits against appellant's property were instituted about one year before the ordinance establishing the park districts was enacted. That is, ordinance No. 5722, condemning the property for park purposes, was enacted February 1, 1911, and was filed in the circuit court July 10th, same year, while the ordinance establishing the park district was not enacted until January 16, 1912, almost a year, as previously stated, after the condemnation proceedings had been instituted. Upon that state of facts, counsel for appellant contends that "the nonexistence of park districts at the time the condemnation suit was brought rendered the whole proceedings and the judgment therein void," and consequently its validity may be challenged in this equitable proceeding. The basis of that contention is predicated upon this insistence: "The statutes require, as a prerequisite to the proceedings to condemn land for a park, that the territory of the city be divided into park districts; and that the existence of such park districts is a jurisdictional fact in the proceeding." The presentation of this question in this form requires the consideration of the laws and ordinances of the city of St. Joseph.

The authority of the city to establish park districts is found in section 192, Laws 1909, p. 216, same as section 8725, R. S. 1909, which reads as follows: "May Create Park Districts.—Said board of park commissioners shall recommend to the city council a division of the territory within the city limits into park districts, the number, names and description of said districts to be designated by said board, and to be established by ordinance, and thereafter, when the city limits may be extended or said board shall deem it advisable for any reason, said park districts may be increased or diminished in number, and the extent and area thereof may be increased or diminished by adding to or taking away from the territory thereof; but such changes shall be made only by ordinance, as recommended by said board." The language of this section is plain and unambiguous. It provides that the park commissioners shall recommend to the city council, park districts, etc., and that they shall be established by ordinance. There can be no question but what this language is mandatory and must be obeyed by the commission and council, before the body, much less the life, of the district can be created, and is in keeping with the general laws of nations, states, counties, and municipalities which require that they shall be established, and the boundaries thereof fixed before they begin to exercise civil or political powers or may be exercised for them.

And as was held by this court in the case of Kansas City v. Mastin, 169 Mo. 80, loc. cit. 91, 68 S. W. 1037, 1039, in discussing a similar charter provision, this court said: "The pro...