City of St. Joseph v. Georgetown Lodge No. 627, I. O. O. F.

• Decision Date: 30 July 1928
• Docket Number: No. 26862.,26862.
• Citation: 8 S.W.2d 979
• Parties: CITY OF ST. JOSEPH v. GEORGETOWN LODGE NO. 627, I. O. O. F., OF ST. JOSEPH et al.
• Court: Missouri Supreme Court

8 S.W.2d 979

CITY OF ST. JOSEPH v. GEORGETOWN LODGE NO. 627, I. O. O. F., OF ST. JOSEPH et al.

No. 26862.

Supreme Court of Missouri, Division No. 1.

July 30, 1928.

Error to Circuit Court, Buchanan County; L. A. Vories, Judge.

Action in equity by the City of St. Joseph against Georgetown Lodge No. 627, I. O. O. F., of St. Joseph, Mo., and others. Judgment for defendants, and plaintiff brings error. Cause transferred to the Kansas City Court of Appeals.

R. M. Duncan, City Counselor, of St. Joseph (Lindsay & King, of St. Joseph, of counsel), for plaintiff in error.

C. W. Meyer, of St. Joseph, for defendants in error.

SEDDON, C.

Plaintiff, city of St. Joseph, a municipal corporation and a city of the first class commenced this action in equity in the circuit court of Buchanan county, seeking to perpetually enjoin the defendants, an incorporated lodge of the fraternal order of Odd Fellows and certain named officers of said lodge, from establishing or maintaining a cemetery within one mile of the corporate limits of the city of St. Joseph in alleged violation of an ordinance of said city, No. 965, enacted on March 5, 1906, which ordinance provides that:

"It shall be unlawful for any person, persons, associations, or corporation hereafter to locate and establish any cemetery within the city of St. Joseph, or within one mile of the limits thereof, or to maintain any such cemetery hereafter located and established."

Said ordinance, by its terms, defines and declares any such cemetery to be a nuisance, and prescribes a fine or penalty of $100 for each and every offense in violation of said ordinance, and provides that "each day any such cemetery shall be maintained shall be deemed to be, and shall constitute, a separate and new offense."

The petition pleads said ordinance in hæc verba; alleges that defendants, on March 6, 1923, purchased a ten-acre tract of land, specifically described by metes and bounds, which tract is located within one mile of the corporate limits of St. Joseph; that, since acquiring said land, defendants have graded and laid out said land into lots, and have platted the same for cemetery purposes, and purpose to, and will, unless restrained from so doing, cause the dead to be buried therein, and that defendants, although advised thereof, refuse to comply with said ordinance; wherefore, plaintiff prays that defendants, and each of them, be restrained and enjoined from using said property for cemetery purposes and from violating the terms and conditions of said ordinance, and for general equitable relief.

The answer admits the incorporation of said lodge, its ownership of the described tract of land, and that defendants have graded and laid out said land into lots and platted the same for cemetery purposes; furthermore, the answer avers that:

"The pretended ordinance set out in plaintiff's petition is unconstitutional and void, arbitrary, oppressive, and without any legal force whatever; that the city of St. Joseph, through its common council and mayor, had no authority or power to pass said ordinance, and had not, at the time such ordinance was pretended to be passed, and has not now, the authority or power to declare that to be a nuisance which is not a nuisance, either in fact or in law; that said ordinance is unreasonable and exceeded, and now exceeds, the authority and the power vested in said city, and its common council and mayor; that said pretended ordinance is an unlawful and arbitrary restriction of the rights of the defendants herein, and is a violation of the Constitution and statutes of the state of Missouri."

The reply is a general denial of the averments of the answer.

The trial chancellor heard testimony upon a trial of the action and thereupon took the cause under advisement. Subsequently, the trial court entered a decree or judgment, finding that "approximately 600 feet of the west end of said tract of land is within one mile of the city limits of said city; that said ordinance is invalid and void on its face, being beyond the powers conferred upon the plaintiff city in its charter, and for the reason that it includes a vast amount of territority of which the court takes judicial knowledge could not all be so situated as to affect the inhabitants of said city by reason of being a nuisance, and is therefore unreasonable and beyond the power of the city to pass said ordinance." Wherefore, it is adjudged and decreed that plaintiff take nothing by said suit or action, and that defendants have judgment for their costs.

After unsuccessful procedural steps for a new trial, plaintiff, in due time, obtained a writ of error in this court directed to said circuit court, pursuant to which writ the record below has been certified to this court.

We have closely and scrutinously examined the record herein, and we are unable to determine therefrom the pecuniary amount in dispute herein. It has been repeatedly held by this court, in determining our appellate jurisdiction in actions seeking only injunctive or other purely equitable relief, or wherein relief other than a money judgment is sought, that "the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa should the relief be denied." Gast Bank Note & Lithograph Co. v. Fennimore Ass'n, 147 Mo. 557, 49 S. W. 511; Kitchell v. Railway Co., 146 Mo. 455, 48 S. W. 448; Gary Realty Co. v. Kelly, 284 Mo. 418, 224 S. W. 410; Cambest v. Hydro Electric Co., 292 Mo. 570, 239 S. W. 477; Handlan v. Stifel (Mo. Sup.) 219 S. W. 616; State ex rel. v. Mid-State Serum Co. (Mo. Sup.) 264 S. W. 878. The latest case in which we have discussed and ruled the question of our pecuniary jurisdiction in an injunction action is Aufderheide v. Ice & Fuel Co. (Mo. Sup. en Banc) 4 S.W.(2d) 776, 783, et seq., wherein it clearly, indisputably, and conclusively appeared, upon an examination of the whole record therein, and from the written admissions of the respondent parties (filed in this court) as to what said record showed respecting the pecuniary amount in...