Anderson v. City of St. Louis

• Decision Date: 31 March 1871
• Citation: 47 Mo. 479
• Parties: CHARLES R. ANDERSON et al., Respondents, v. THE CITY OF ST. LOUIS et al., Appellants.
• Court: Missouri Supreme Court

47 Mo. 479

CHARLES R. ANDERSON et al., Respondents,

v.THE CITY OF ST. LOUIS et al., Appellants.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

S. Reber, for appellants.

There is no equity in plaintiffs' bill; their remedy was in the forum of the law court, and they had a perfect and adequate remedy at law. If the proceedings are in a court of record, according to the course of the common law, a writ of error is the proper remedy to reverse and vacate the erroneous judgment; otherwise the remedy is by certiorari. (Wales v. Willard, 2 Mass. 120; Sumner v. Parker, 7 Mass. 79; Cushing v. Longfellow, 26 Me. 306; In the matter of Negus, 10 Wend. 38.)

Apparent validity and total invalidity in fact, which can only be established by proof aliunde, is the necessary ground of chancery jurisdiction. If partial invalidity only is established, no cause is made for the interposition of equity to remove a cloud. (Ewing v. The City of St. Louis, 5 Wall. 413; Heywood v. Buffalo, 14 N. Y. 534; Nichols v. Sutton, 22 Ga 369; Myers v. Simms, 4 Iowa, 500; Longfellow v. Quimby, 29 Me. 196; Moers v. Smedley, 6 Johns. Ch. 28; Brooklyn v. Meserole, 26 Wend. 132; Van Doren v. New York, 9 Paige, 388; Ball v. Humphreys, Iowa, 1854.)

In Ewing v. City of St. Louis it was held that with the proceedings and determinations of inferior boards or tribunals of special jurisdiction, courts of equity will not interfere unless it should become necessary to prevent a multiplicity of suits or irreparable injury, or when the proceeding sought to be annulled or corrected is valid upon its face, and the alleged invalidity consists in the matters to be established by extrinsic evidence. In other cases the review and correction of the proceedings must be obtained by the writ of certiorari. In Moers v. Smedley et al., supra, it was held that the review and correction of all errors, mistakes and abuses in the exercise of the powers of inferior and subordinate jurisdictions, and in the official acts of public officers, belong exclusively to the Supreme Court. In Van Doren et al. v. New York, 9 Paige, 388, it was held that where a valid legal objection appears upon the face of the proceedings, through which the adverse party can alone claim title to the complainant's land, there is not in law such a cloud upon the complainant's title as to authorize him to apply to a court of chancery to set aside such a proceeding.

In England it is well settled that error does not lie when the court whose judgment is complained of acts in a summary manner, or in a new course different from the common law. In the matter of Negus, 10 Wend. 38, it was held that in such a case the writ of certiorari is the appropriate remedy. In Ruhlman v. The Commonwealth, 5 Binn. 26-7, it was held to be a general rule of law that where a new jurisdiction is created by statute, and the court exercising it proceeds in a summary method or in a course different from the common law, a certiorari is the only proper remedy. To the same effect see Savage v. Gulliver, 4 Mass. 178; Conn v. Ellis, 11 Mass. 465; Edgar v. Dodge, id. 670; Ball v. Brigham, 5 Mass. 406; Bob, a slave, v. The State, 2 Yerg. 173; 1 Yerg. 92; Wildy v. Washburn, 16 Johns. 49; Sheet v. Francis, 3 Ohio, 277; see also Conn v. Coombs, 2 Mass. 489; Pratt v. Hall, 4 Mass. 239; The People ex rel. Loomis & Bronson v. Wilkinson, 13 Ill. 660.

The Circuit Court has power to award a writ of certiorari at common law to all inferior tribunals and jurisdictions, whenever it is shown either that they have exceeded the limits of their jurisdiction, or in cases where they have proceeded illegally and no appeal is allowed and no other mode of directly reviewing their proceedings is provided. (The People v. The Mayor, 2 Hill, 9; In the matter of Mt. Morris Square, id. 14; Birdsall v. Phillips, 17 Wend. 464; Prindle v. Anderson, 19 Wend. 391; Simpson v. Rhinelanders, 20 Wend. 103; Johnson v. Moss, id. 145; Ex parte Mayor of Albany, 23 Wend. 277; Nichols v. Sutton, 22 Ga. 369; Myers v. Simms, 4 Iowa, 500; Longfellow v. Quimby, 29 Me. 196; Brooklyn v. Meserole, 26 Wend. 132.)

II. That no attempt was made to come to an agreement with the plaintiffs as owners of the premises, before proceeding to condemn, was wholly immaterial.

H. A. Clover, for appellants.

It is not compulsory on the city to attempt to obtain the right of way by agreement as a necessary condition precedent to the power to condemn and fix the compensation through a jury.

All the prior charters of the city, and the practice under them, must be considered in connection with the charter of 1867, in order to ascertain its true construction. The repeated re-enactment of the terms of the law of February 26, 1835, must be presumed to have been made with a knowledge of the interpretation which had been put upon it by the city in its practical administration. And it must be taken as re-enacted in the sense in which it had uniformly been interpreted in practice. This rule of interpretation is analogous to, if not identical with, that adopted in the construction of the statutes borrowed from foreign States or countries, the rule in such cases being to adopt the construction made by the courts of the country by whose Legislature the statute was enacted. (Cathcart v. Robinson, 5 Pet. 280.) The seventh section of article VIII of the charter of 1867 seems also to give aid to our construction of the statute.

Why give the statute an interpretation that puts upon the city the necessity of going through the child's play of offering terms the owner could not accept, or of inviting terms merely for the sake of rejecting them? The agreement must be satisfactory to the city council. It can therefore make its own terms or refuse any agreement at all. The object of the statute was to enforce the constitutional duty of making just compensation for property taken for public use, and to authorize the city to make such compensation by agreement, and in default or absence of such agreement, no matter for what cause, to fix the compensation by a jury of freeholders. Why can not a jury do justice in one case as well as another? Finally, if the city's construction of this statute has been wrong for now more than thirty-five years (which we do not admit), we say communis error, communa lex. The case of Lynd v. Clemens is not controlling in this case, because it was not on a statute the same in terms as this, though much like it in some of its chief features.

I. Z. Smith, for respondents.

I. No attempt at an agreement with the land-owners was made. (See Lynd v. Clemens, 44 Mo. 540.)

II. After the jury had been impaneled and had heard the evidence and the cause was submitted, another jury was impaneled without notice to the land-owners, and only two of the jurors of this last panel were sworn.

III. The small number of witnesses and the flagrantly slight examination made by the second jury shows that they must have relied upon the evidence produced before the previous jury.

IV. The land attempted to be condemned was not needed by the city, and the whole foundation of the city's right is necessity. Plaintiffs' land can not be taken away from them by mere caprice. Nothing but public necessity can deprive them of it. Judge Leonard says, in giving the opinion in the case of Newby v. Platte County: “As to eminent domain, * * all writers on public law agree that the State can not rightfully exercise it except in cases of public necessity.”

This is a case where a municipality, through mere whim, not impelled by any necessity, nor even by public utility, wantonly and arbitrarily seeks to take private property, not for public use--because the city has no use for it--but merely to transfer the title from the private holder, to whom it is useful, to the city, to whom it is useless. Corporations have become so aggressive, under the liberal grants of the Legislature, that there is nothing left but the courts to shield the citizens from the rapacity of these corporations.

WAGNER, Judge, delivered the opinion of the court.

The relief prayed for in this case was to restrain by injunction the defendants from taking possession of or in any manner disturbing the plaintiffs in the peaceable enjoyment of their land, which was claimed to be condemned for a wharf under certain proceedings before the land commissioner. There was also a prayer to restrain the commissioner from issuing certain executions and the marshal from collecting them, and to set...