Glasgow v. City of St. Louis

• Citation: 17 S.W. 743,107 Mo. 198
• Parties: Glasgow et al., Appellants, v. St. Louis et al
• Decision Date: 23 November 1891
• Court: United States State Supreme Court of Missouri

17 S.W. 743

107 Mo. 198

Glasgow et al., Appellants, v. St. Louis et al

Supreme Court of Missouri, First Division

November 23, 1891

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Affirmed.

M. L Gray and George Denison for appellants.

(1) Plaintiffs' rights in the vacated street are property and the act of the city in vacating the street without providing compensation therefor to the plaintiffs constitutes a taking within a constitutional prohibition. Pumpelly v. Green Bay Co., 13 Wall. 166; Angell on Water-Courses [6 Ed.] sec. 465a, p. 639; Hooker v. Co., 14 Conn. 146; Rowe v. Bridge Co., 21 Pick. 344; Appraisers v. People, 17 Wend. 604; Arnold v. Railroad, 55 N.Y. 661; Council v. Croas, 7 Ind. 9; Tate v. Railroad, 7 Ind. 479. (2) The city of St. Louis had no power to alien or dispose of streets so held in trust for public use, or abandon the trust, except in the lawful exercise of the right of eminent domain, granted to it under the charter. Commissioners v. Lathrop, 9 Kan. 453; Dillon, Mun. Corp. [3 Ed.] secs. 650, 651, 660 and 575; L. & M. Co. v. Mayor, 36 N. J. Law, 540; Cummings v. City, 90 Mo. 259; Warren v. Mayor, 22 Iowa 351; Sugar Co. v. Grain Co., 101 Mo. 192. (3) Equity will cause the trust in which the city holds this street to be observed, and the courts will enjoin the violation of it at the suit of parties specially injured by any attempted wrongful vacation of the street. State v. Patterson, 34 N. J. Law, 163; Spiegel v. Gansberg, 44 Ind. 418; Cummings v. St. Louis, 90 Mo. 259; Warren v. Mayor, etc., 22 Iowa 351; Williams v. Presb. Soc., 10 Ohio St. 478; Barclay v. Howell, 6 Pet. 498. (4) It is the duty of the court to determine whether the use for which property is taken is public or not, and the court must do this without any regard to a legislative assertion on the subject, the burden being on the city to allege and prove that the use is public; and evidence is admissible to prove what the use really is. Railroad v. City, 85 Mo. 674; City of Savannah v. Hancock, 91 Mo. 54; Trans. Co. v. Railroad, 94 Mo. 535; County Court v. Griswold, 58 Mo. 193; St. Louis v. Frank, 78 Mo. 41; Aldridge v. Spears, 101 Mo. 400. (5) The dedication, as made by the dedicators, and the acceptance of the same by the city, constitute a contract, the obligation of which cannot be impaired by the enactment of the ordinance in question. Warren v. Mayor, 22 Iowa 351; Watertown v. Cowen, 4 Paige, 510; Cooley on Const. Lim. [6 Ed.] p. 291; Railroad v. Springfield, 85 Mo. 674. (6) A general naked power to vacate streets, given by the legislature to a municipal corporation, must be supplemented by municipal legislation, protecting parties affected by such vacation, or the general statutory method provided for accomplishing the same result must be followed. It cannot be done arbitrarily. James v. Darlington, 71 Wis. 173; Bruce v. Saline Co., 26 Mo. 262; State v. Wells, 70 Mo. 635; Williams v. Carey, 34 N. Y. Rep. 813; Building Ass'n v. Tel. Co., 88 Mo. 258; City of Savannah v. Hancock, 91 Mo. 54. (7) Proceedings to vacate streets in the city of St. Louis should be the converse or reciprocal of proceedings for opening them. Under article 6 of city charter the cost of opening may be assessed against parties specially benefited thereby, and this provision of the charter has been sustained by numerous decisions of this court. State v. St. Louis, 62 Mo. 244; St. Louis v. Speck, 67 Mo. 403; City v. Richeson, 76 Mo. 470; Brown v. Bridges, 36 Iowa 279; Dougherty v. Brown, 91 Mo. 26.

T. A. Post and Leverett Bell for respondents.

(1) Plaintiffs' injunction was properly dismissed. (2) Under the Glasgow dedication the tract relinquished became part of a public street and subject to the charter power of vacation in the city of St. Louis. Glasgow v. City, 15 Mo.App. 120; 87 Mo. 682; Kimball v. Kenosha, 4 Wis. 321; Aldridge v. Spears, 101 Mo. 406; St. Joe Terminal Co. v. Railroad, 94 Mo. 536. (3) Since the municipal power to vacate streets is derived directly from the state and is not an implied or incidental one, but is given in express and specific terms, the question whether the ordinance is expedient and beneficial to the public or otherwise is not one to be determined by the courts. Dillon on Mun. Corp. [4 Ed.] 328; Neier v. Railroad, 12 Mo.App. 34; Sargent v. Railroad, 1 Handy, 62; Fisher v. Harrisburg, 2 Grant Cases, 296; Railroad v. Springfield, 85 Mo. 676; State v. Clark, 54 Mo. 36; Plum v. Coal Co., 10 N.J.Eq. 200; McCormick v. Patchen, 53 Mo. 357. (4) If the members of the municipal assembly have acted corruptly, or have been guilty of malfeasance, they may be proceeded against in the courts. But this court cannot in this proceeding go behind their acts regularly passed in the exercise of an unquestioned power, and ascertain from testimony in pais and dehors the ordinance that the municipal assembly acted wrong in passing the measure. Such a course would be an assumption by the judiciary of a right in a collateral proceeding to try the municipal assembly. Certainly when the untrammeled power is given that body to do an act, the question that motives operated upon it to such lawful act is immaterial. Dill. on Mun. Corp., sec. 311; Cooley, Const. Lim. 186, 187; Pike v. Megoun, 44 Mo. 495; Freeport v. Marks, 59 Penn. St. 253; Buell v. Ball, 20 Iowa 292; 5 Dill. C. C. Rep. 444; State ex rel. v. Hayes, 49 Mo. 604. (6) Plaintiffs cannot invoke the aid of the court to do away with the work of the municipal assembly, unless it plainly appears that the ordinance is an abuse of discretion, that it is grossly unjust or oppressive, or grossly unreasonable. Neier v. Railroad, 12 Mo.App. 34; Corrigan v. Gage, 68 Mo. 544; City v. Weber, 44 Mo. 547; Hannibal v. Tel. Co., 31 Mo.App. 23; Cape Girardeau v. Riley, 72 Mo. 224; Horr & Bem. Mun. Ord., sec. 127; White v. Kent, 11 Ohio St. 550. Plaintiffs are certainly not entitled to an injunction. Their lands do not abut on the property sought to be taken, and they suffer no special damages. Polack v. Asylum 48 Cal. 490; Bailey v. Culver, 84 Mo. 531; Smith v. Boston, 7 Cush. 259; Canal Co. v. St. Louis, 2 Dill. C. C. Rep. 90; Blood v. Railroad, 2 Gray, 140, 141; 2 Stor. Eq., sec. 925; Attorney General v. Nichol, 16 Vesey, Jr., 342; Killinger v. Railroad, 50 N.Y. 206.

Black, J. Barclay, J., did not participate in the judgment in this court.

OPINION

Black, J.

William Glasgow, Ann E. Lane, W. G. Haydock and the St. Louis Paint Manufacturing Company brought this suit against the city of St. Louis, the mayor thereof, Messrs. Shickle, Harrison and Howard, and the Shickle, Harrison & Howard Iron Company, a corporation, to enjoin them from carrying into execution ordinance 14068 vacating that part of Poplar street, between Twelfth and Fourteenth streets. The circuit court dissolved the temporary injunction and dismissed the petition, and from that judgment the plaintiff appealed.

Twelfth street runs north and south, and the next parallel streets to the west are Thirteenth and Fourteenth streets. Papin street begins at Twelfth street and runs west, crossing Thirteenth and Fourteenth and other streets. Gratiot street is the first street north and Chouteau avenue the first street south of Papin, both running east and west, parallel to the last-named street.

The plaintiffs own the two blocks between Thirteenth and Fourteenth streets, one north and the other south of Papin street. They have improved, and have large manufacturing establishments on, these respective parcels, comprising in all the two blocks. The defendant iron company owns the two blocks between Twelfth and Thirteenth streets, one north and the other south of Papin street; and it is this portion of that street which the ordinance in question vacates. These two blocks are covered by buildings and sheds, and are both used in carrying on the business of manufacturing iron pipe.

In March, 1883, the municipal assembly passed an ordinance vacating and turning over to the iron company that part of Papin street now in question for a period of twenty years, for the consideration of $ 2,000, and other considerations not necessary to be mentioned. On the petition of some of the present plaintiffs, the city was enjoined from carrying that ordinance into effect. 87 Mo. 678. Subsequently two other bills were introduced before the assembly simply vacating the same part of the street, both of which failed to pass. On the 21st of June, 1887, the municipal assembly passed the ordinance now in question which is in these words: "So much of Papin street as lies between Twelfth and Thirteenth streets is hereby vacated as a public street."

It is alleged in the present petition that the officers and agents of the city combined with the defendants to wrong and injure the plaintiffs and the public by vacating the street and converting the same to private use; that is to say, to the use of the defendants, the Shickle, Harrison & Howard Iron Company, and pursuant to said combination passed the last-mentioned ordinance.

1. Considerable evidence was received by the trial court showing why and under what circumstances this vacating ordinance was passed. The rule of law is well established that the courts will not inquire into the motives of the legislature in enacting a law, even where fraud and corruption is alleged. Cooley on Const. Lim. [5 Ed.] 225. But the rule is somewhat relaxed as to municipal bodies. Speaking of such bodies it is said: "We suppose it to be a sound proposition that their acts, whether in the form of resolutions or ordinances, may be impeached for fraud at the instance of persons injured thereby." 1 Dill. Mun. Corp. [4 Ed.] sec. 311.

Members of both branches of the municipal assembly looked into the facts with care, and say they...