Union Depot Co. v. City of St. Louis

• Decision Date: 31 October 1882
• Citation: 76 Mo. 393
• Parties: THE UNION DEPOT COMPANY v. THE CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

76 Mo. 393

THE UNION DEPOT COMPANY

v.THE CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Leverett Bell for appellant.

The city charter of March 4th, 1870, was in force in February, 1874, and continued in force until October 21st, 1876, when it was superseded by the present charter of the city. Under the charter of March 4th, 1870, the city council was not authorized to vacate or abolish a street or highway, nor to do any act, nor to grant any privilege, which would operate as such vacation or abolition. Laws of 1870, p. 464, § 1, art. 3. The power to vacate streets in the city of St. Louis, in the year 1874, was vested in the county court of St. Louis county. 2 Wag. Stat., p. 1321, § 45. Ordinance 9,081, in so far as it attempted to vacate Eleventh street, was absolutely void, because the mayor and council were not, under the charter, possessed of any power to legislate in that direction. This feature in the ordinance being ultra vires, it cannot be supported as against the city under the doctrine of estoppel. It is not the case of a defective or faulty execution of a power, but it is one where the city had no power to act in the premises, and hence it is not estopped from setting up its own want of power. Dill. Munic. Corp., (3 Ed.) §§ 457, 935; 5 Abb. New cases, p. 48, note. The phrase “proper authorities of the city,” it is clear, included in its terms in 1874, the county court as well as the city council, because to the former body alone was confided the power to vacate streets. 2 Wag. Stat., § 45, p. 1321.

S. M. Breckenridge for respondent.

HENRY, J.

This is a proceeding to restrain defendants from interfering with the construction of certain buildings by plaintiff, and from removing and demolishing certain buildings erected by plaintiff, south of Poplar street in the city of St. Louis, upon what was formally dedicated and used as Eleventh street, as alleged by defendants, which the defendant, the city of St. Louis, proposes to re-open for use by the public as a street. A temporary injunction was, on the hearing in the circuit court, made perpetual, and defendants appealed to the St. Louis court of appeals, which affirmed the judgment, from which defendants have appealed to this court

There was a conflict of evidence, as to whether Eleventh street had ever been established and opened, pursuant to law; but conceding that, as contended by defendant, the street was so opened and established, yet by ordinance No. 9,081, adopted by the city, July 10th, 1874, the plaintiff was authorized, on certain conditions therein contained, which have been complied with by the plaintiff, to use and occupy so much of the street in question as has been used and occupied, and in the manner used and occupied by plaintiff, and the only question is whether the authority given by the city was ultra vires.

1. MUNICIPAL CORPORATION: consent to use streets: “proper authorities.”

When the ordinance was passed, the power to vacate streets in the city of St. Louis, was by general law vested in the county court of St. Louis county, but the law under which plaintiff organized, section 67, Wagner's Statutes, 315d, provides that, with the consent of the proper authorities of the city, the corporation shall “have the right to lay the necessary track over, upon or under such streets of said city, as may be necessary in order...