58 Mo. 175 (Mo. 1874), The County Court of St. Louis County v. Griswold

Citation58 Mo. 175
Opinion JudgeWAGNER, Judge.
Party NameTHE COUNTY COURT OF ST. LOUIS COUNTY, Appellant, v. WILLIAM D. GRISWOLD, et al., Respondents.
AttorneyThomas C. Reynolds, for Appellant. John M. Krum, for Appellant. Glover & Shepley and T. T. Gantt, for Respondents.
CourtSupreme Court of Missouri

Page 175

58 Mo. 175 (Mo. 1874)

THE COUNTY COURT OF ST. LOUIS COUNTY, Appellant,

v.

WILLIAM D. GRISWOLD, et al., Respondents.

Supreme Court of Missouri.

October Term, 1874

Thomas C. Reynolds, for Appellant.

I. As to the park's being of " public use" . The whole attempt of respondents' counsel as to this point, is to prove by their own assertions and reasoning, that this law is unjust and oppressive upon a portion of the people of the county and that should it be sanctioned, other similar laws may hereafter be passed. There is no pretense, nor the slightest allusion made in their long argument on this point, to the violation of any specific provision of the constitution. But there is no power in the court to remedy injustice or oppression in a legislative body unless some constitutional provision is violated. ( Hamilton vs. St. Louis County, 15 Mo. 3; State vs. State Line Railroad, 48 Mo. 471; Cooley Con. Lim., pp. 159, 162, 167, 2 Ed.) It necessarily follows that this court must clearly see that the act manifestly conflicts with some " specific provision of the constitution" before it has any authority to declare it void, however unjust or oppressive it may be.

" The necessity for appropriating private property for the use of the public, or of the government is not a judicial question. * * * The necessity of taking private property for public use is to be determined by the legislature, and it may, by statute, directly and at once, designate the property to be appropriated, and the purpose of the appropriation, or delegate the power to officers or corporations." ( People vs. Smith, 21 N.Y. 597; Vareigne vs. Fox, 2 Blatchf. 95; Dickey vs. Tennison, 27 Mo. 376; Township Board vs. Hackmann, 48 Mo. 245; Cool. Con. Lim., 537; Id., 530, Title " Purpose." )

The right of eminent domain is not conferred by the constitution. It exists as a necessary attribute of sovereignty in every government. (Cool. Con. Lim., 424, and note 1 and authorities there cited; Bonaparte vs. Camden & Amboy R. R., Bald., 205; Barringer vs. Edman, 14 Har. [Pa.] 129; E. St. Louis vs. St. John, 47 Ill. 463.)

The constitutional provisions confining the exercise of the right to a public use, and upon paying compensation, are restrictions upon the right.

We are, therefore, to see whether there is any express provision of the constitution which restricts and forbids the legislature to authorize counties to establish public parks when, in the judgment of the general assembly, the number of people in the county, that is, the whole county, renders it useful or beneficial to the people thereof, and as it is not pretended there is any such restriction, the power exists.

" The incompatibility must not be speculative, argumentative, or to be found only in hypothetical cases or supposed consequences. It must be clear, decided and inevitable, such as presents a contradiction at once to the mind, without straining either by forced meanings or consequences too remote. It is the constitution that must be violated, and not any man's opinions of right or wrong, or his principles of natural justice. These are uncertain standards of legislative power, and must be referred to the discretion of those to whom the people have given that power, and to whom they must answer for an abuse of it." (Livingstone vs. Moore, 7 Pet. 663, 4; Brooklyn Park vs. Armstrong, 45 N.Y. 236; Owners vs. Albany 15 Weed 376-7.)

The legislature and the governor, by establishing Forest Park for the people of St. Louis county, decided that it was of " public use" to the whole people of the county, as a body; and this decision of the two other branches of the State government is not subject to review by the third co-ordinate branch, the judiciary.

Even were it subject to such review, the facts, of which the court will take judicial notice without testimony of witnesses, clearly establish that that park is of public use, beneficial to the whole people of that county.

II. The Forest Park act is not contrary to section 14 of article XI. of the State constitution, which says that " the general assembly shall not authorize any county, city or town to become a stockholder in, or to loan its credit to, any company, association or corporation, unless two-thirds of the qualified voters of such county, city or town, at a regular or special election to be held therein, shall assent thereto."

The first question to be considered, is whether that board is a company, association or corporation.

Three of its members are nominated by the County Court, and confirmed by the Circuit Court; three are nominated by the Mayor of the city of St. Louis, and confirmed by its City Council; and the seventh is the presiding justice, for the time being, of the County Court. Thus a majority of the board is dependent for appointment on the County Court, or (in the case of its presiding justice) on the direct choice of the voters of the county; and the minority is appointed by the Mayor of the City of St. Louis, which contains nine-tenths of the population of the county.

The board of Forest Park commissioners is destitute of every ear-mark denoting a company, association or corporation. It has no perpetual succession, but may, at any time, be abolished by the legislature. It possesses no property and holds no money; for the park itself belongs to the people of the county, even the possession of it remains with the County Court, (§ 3 of act) and all park moneys are to be deposited with the county treasurer. (§ 6 of act.) They cannot touch a cent of those moneys without the approval of the County Court, and they must semi-annually report all their proceedings to that body. The act does not give them even a power " to sue and be sued," an indispensable attribute of every company, association or corporation, as distinguished from officers, agents or employees of the government. In the act, the legislature evidently does not regard the board as a corporation, for there is not the slightest provision that, before it may act, it must be duly organized under the general corporation law.

III. The opposing counsel contend that the park act is unconstitutional, because it provides for taking private property, not at its just value, but solely at the valuation placed on it in the tax assessment of 1873.

The words of the act: " In all cases, the assessment of the county assessor for the year 1873, shall be taken as a guide in fixing the value of property to be condemned or appraised," simply mean that the assessment was to be taken as one guide, or some guide, but not as the only or conclusive guide.

This construction is still clearer, from an examination of the whole act. The appointment of appraisers, who are to be sworn to fix the value of the property themselves; the provisions, that either party might require a jury in lieu of the appraisers, that the owner might move the court to exercise its discretion in setting aside the appraisement or verdict, prove beyond cavil that the assessment was not to be the conclusive and only guide.

But even were the act susceptible of the forced construction put upon it by the opposing counsel, the only result would be that so much of it as made the assessment of 1873 conclusive as to the value of property would be void, and the remainder of the act, perfect in itself, could be carried into effect.

It makes no difference whether the supposed unconstitutional provision is in a separate section, or forms part of a section otherwise constitutional. Judge Cooley says (p. 178), " The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall." Strike out the proviso from the end of § 2 of the Forest Park act and yet the remainder is " complete in itself and capable of being executed, in accordance with the apparent legislative intent."

IV. The Forest Park act is not inoperative because it directs the title to the land composing the park to be vested in the " people of the county of St. Louis," and not in the county of St. Louis, the ordinary legal designation of the political sub-division in which the park is located.

Taking for argument's sake, the position that the expression " people of the county of St. Louis" was inadvertently placed in the act, and that the name of the county alone should have been used, it is nevertheless clear that a conveyance to its people would enure to the benefit of the county as a quasi corporation. (Carder vs. The Com'rs of Fayette county, 16 Ohio St. 351; State vs. Piatt, 15 Ohio 23?? The Trustees of Green Township in Scioto County vs. John Campbell, 16 Ohio St. 11; Hornbeck's Ex. vs. The American Bible Society, 2 Paige's Chancery, 133; Potter vs. Chapin, 6 Paige 649.)

Our own legislature has recognized by statute in respect to county contracts, the principle sustained in the above decisions. It enacted, (Wagn. Stat., 407) and the law has been for very many years among our statutes, that " all notes, bonds, bills, etc., whereby any person shall be bound to any county, or the inhabitants thereof," shall vest title in the county itself.

Moreover, it is a well known doctrine of equity jurisprudence, that no trust shall fail for want of a trustee, and the court, in such a case, will appoint one. Now it is beyond question that a title to Forest Park might be made to the people, or public, of St. Louis county, by the intermediation of a trustee. The park act, on its face, declares the park to be established for the use and benefit of the people of St. Louis county. Therefore, if so much of the act as gives the St. Louis County Court possession of the park, and appoints commissioners to facilitate the use of it by its...

To continue reading

Request your trial
29 practice notes
  • 60 Mo. 591 (Mo. 1875), Schmidt v. Hess
    • United States
    • Missouri Supreme Court of Missouri
    • Invalid date
    ...(2 Sto. Eq. Jur., § 1165-6, and cases cited; Potter vs. Chapin, 6 Paige 639, and cases cited; St. Louis County Court vs. Griswold, 58 Mo. 175.) In conclusion, the plaintiffs were clearly entitled to the relief sought. And, under the circumstances of the case, it was the only measure of comp......
  • 82 Mo. 388 (Mo. 1884), Rutherford v. Heddens
    • United States
    • Missouri Supreme Court of Missouri
    • Invalid date
    ...the act in question clearly conflicts with the provisions of the constitution, it cannot be declared void. St. Louis Co. v. Griswold, 58 Mo. 175; State v. Able, 65 Mo. 357. Ramey & Brown, Strong & Mosman, Spencer & Hall for respondent. The act in question is a special and local ......
  • 22 S.W. 350 (Mo. 1893), The State v. Loomis
    • United States
    • Missouri Supreme Court of Missouri
    • March 25, 1893
    ...general assembly has not previously prevailed in Missouri. It is in conflict with several precedents. In County Court v. Griswold (1874), 58 Mo. 175, it was declared: "That the law is unjust, or impolitic, or oppressive, will not authorize a court to declare it illegal, unless it viola......
  • 147 U.S. 282 (1892), 1197, Shoemaker v. United States
    • United States
    • Federal Cases United States Supreme Court
    • January 16, 1893
    ...Holt v. Somerville, 127 Mass. 408; Foster v. Boston Park Commissioners, 131 Mass. 225, 133 Mass. 321; St. Louis County Court v. Griswold, 58 Mo. 175; Cook v. South Park Commissioners, 61 Ill. 115; Kerr v. South Park Commissioners, 117 U.S. 379. In these and many other cases, it was either d......
  • Request a trial to view additional results
29 cases
  • 60 Mo. 591 (Mo. 1875), Schmidt v. Hess
    • United States
    • Missouri Supreme Court of Missouri
    • Invalid date
    ...(2 Sto. Eq. Jur., § 1165-6, and cases cited; Potter vs. Chapin, 6 Paige 639, and cases cited; St. Louis County Court vs. Griswold, 58 Mo. 175.) In conclusion, the plaintiffs were clearly entitled to the relief sought. And, under the circumstances of the case, it was the only measure of comp......
  • 82 Mo. 388 (Mo. 1884), Rutherford v. Heddens
    • United States
    • Missouri Supreme Court of Missouri
    • Invalid date
    ...the act in question clearly conflicts with the provisions of the constitution, it cannot be declared void. St. Louis Co. v. Griswold, 58 Mo. 175; State v. Able, 65 Mo. 357. Ramey & Brown, Strong & Mosman, Spencer & Hall for respondent. The act in question is a special and local ......
  • 22 S.W. 350 (Mo. 1893), The State v. Loomis
    • United States
    • Missouri Supreme Court of Missouri
    • March 25, 1893
    ...general assembly has not previously prevailed in Missouri. It is in conflict with several precedents. In County Court v. Griswold (1874), 58 Mo. 175, it was declared: "That the law is unjust, or impolitic, or oppressive, will not authorize a court to declare it illegal, unless it viola......
  • 147 U.S. 282 (1892), 1197, Shoemaker v. United States
    • United States
    • Federal Cases United States Supreme Court
    • January 16, 1893
    ...Holt v. Somerville, 127 Mass. 408; Foster v. Boston Park Commissioners, 131 Mass. 225, 133 Mass. 321; St. Louis County Court v. Griswold, 58 Mo. 175; Cook v. South Park Commissioners, 61 Ill. 115; Kerr v. South Park Commissioners, 117 U.S. 379. In these and many other cases, it was either d......
  • Request a trial to view additional results