8 S.W. 348 (Mo. 1887), City of St. Louis v. Gleason

• Citation: 8 S.W. 348,93 Mo. 33
• Date: Invalid date
• Docket Number: .
• Parties: The City of St. Louis v. Gleason et al., Appellants. [*]
• Court: Missouri Supreme Court

Page 348

8 S.W. 348 (Mo. 1887)

93 Mo. 33

The City of St. Louis

v.

Gleason et al., Appellants. ^[*]

Supreme Court of Missouri

October Term 1887

Appeal from St. Louis Court of Appeals.

Reversed and remanded.

W. C. Marshall for appellants.

(1) These proceedings being in invitum, no presumptions of jurisdiction are made. Every fact necessary to jurisdiction must affirmatively appear. The circuit court (in such proceedings as these) is regarded as a court of special and limited jurisdiction. The petition must hence disclose all the facts which the city charter or public law renders necessary as preliminary to this proceeding. Railroad v. Campbell, 62 Mo. 585; Cole v. Cole, 3 Mo.App. 571; In re Burmeister, 56 How. Pr. 416. (2) The petition in this cause fails to show that the ordinance (on which this whole proceeding rests) was passed on the unanimous recommendation of the board of public improvements, or on the petition of the owners of the major part of the property fronting on the proposed street. Without such initiative, the ordinance is utterly void. Where facts preliminary to an ordinance are required, their absence renders the ordinance void. And there is no "prima-facie evidence" law to help this defect. That the omission of necessary preliminary facts makes the ordinance void, see City Charter, art. 6, sec. 2, p. 162, Rev. Ord.; Reynolds v. Schweinefus, 1 S.Ct. [Cin.] 114; Perkinson v. Partridge, 3 Mo.App. 60; Dillon Mun. Corp. [2d Ed.] sec. 245, and cases there cited; State v. City 56 Mo. 177. Those omissions render these whole proceedings void for want of jurisdiction of the subjectmatter. State v. St. Louis, 67 Mo. 403; Ellis v. Railroad, 51 Mo. 200.

Leverett Bell for respondent.

(1) The main questions herein have been determined against the appellants by this court in the case of St. Louis v. Richeson, 76 Mo. 470. (2) The point made, that the commissioners were not duly qualified, is based on the record entry, that the oath of one of the commissioners, John F. Grady, was filed, by leave of court, on July 13, 1881. The commissioners' report was filed Dec. 18, 1879, and it was sworn to by the three commissioners, Priest, Green, and Grady. The commissioners were appointed July 7, 1879, and on July 31, 1879, two of them, Priest and Green, filed their oaths. There is no provision in the law governing street openings in St. Louis, requiring the commissioners to take and file an oath. See secs. 2, 3, 4, 5, 6, 7, 8, 9, 10, of article 6 of the City Charter; 2 R. S., p. 1606. The report is required, by section 6, to be made under oath, and this feature was complied with. A further conclusive answer to this objection is, that in proceedings of this character, the action of two commissioners is sufficient. Quayle v. Railroad, 63 Mo. 465.

OPINION

[93 Mo. 35] Henry, C. J.

The following is the statement of the case made by the court of appeals (15 Mo.App. 26), which we adopt:

"This is a proceeding instituted by the city of St. Louis, under the provisions of its charter, and of an ordinance purporting to be passed in pursuance thereof, to establish and open Benton street, in said city, from Jefferson avenue to Garrison avenue. Commissioners were appointed, who made a report to the court; exceptions were filed by certain property owners to the same; these exceptions were overruled, the report confirmed, [93 Mo. 36] judgment entered accordingly, and an appeal has

Page 349

been taken to this court.

"The petition fails to show that the...