City of St. Louis v. Butler Co.

Decision Date11 April 1949
Docket NumberNo. 40868.,40868.
Citation219 S.W.2d 372
PartiesThe CITY OF ST. LOUIS, a Municipal Corporation, Appellant, v. BUTLER COMPANY, a Corporation, ET AL., Defendants; TRINIDAD ASPHALT MANUFACTURING COMPANY, a Corporation, Respondents.
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis. Hon. James F. Nangle, Judge.

TRANSFERRED TO ST. LOUIS COURT OF APPEALS.

George L. Stemmler, James B. Steiner, and Oliver T. Johnson for appellant.

Greensfelder, Hemker & Wiese, Kent Chappelow, and Mark Gale for respondent.

ELLISON, J.

This is a condemnation suit brought by the appellant City of St. Louis to condemn for use as an alleged public street a strip of land forming a cul-de-sac and known as Edward Street, from the south line of Market Street to the north line of the right of way of the Wabash Railroad Company. On the defendants' side of the case only the Asphalt Company appears here. At the outset it must be determined whether this court has appellate jurisdiction of the cause under Art. V, Sec. 3, Const. Mo. 1945, on one or another of three theories, or whether that jurisdiction is in the St. Louis Court of Appeals. These questions are:

(1) whether the City was acting merely as a municipal corporation in bringing and prosecuting the suit, or was acting in its capacity as a county under Art. VI, Sec. 31;

(2) whether the title to real estate is involved within the meaning of Art. V, Sec. 3;

(3) whether a constitutional question was raised below and kept alive, so as to make this court the appellate forum under Art. V, Sec. 3. Appellant maintains such a question was raised by its contention that the contemplated condemnation is for public use [which can be done, under Art. 1, Sec. 26] as opposed to the respondent's contention that it is for a private use [which cannot be done, with specified exceptions, under Art. 1, Sec. 28, and Art. XIV, Sec. 1, Const. U.S.]

This appeal was first lodged here in Division 2, and an opinion by Tipton, P.J. was adopted holding this court did not have appellate jurisdiction on either the first or second ground stated above. As to the third ground, the opinion held that assuming but not deciding a constitutional question had been properly raised in the trial court, nevertheless it had not been preserved in appellant's motion for new trial or in the briefs here, in consequence of which it was not before this court. But inasmuch as the opinion conflicted with certain decisions of Division 1 and the court en banc as to the second ground, supra, the case was transferred to the court en banc to resolve these conflicting views. The appellant's brief here stresses the third ground of jurisdiction, and since the opinion of Division 2 did not decide it, the cause was reassigned for a new opinion to cover it, if justified.

[1] As to the first ground, supra, we think it is clear that the City is acting as a municipal corporation and not as a county, in maintaining this suit. Art. VI, Sec. 31, Const. 1945 recognized St. Louis both as a city and as a county. But this suit is based on its charter powers as a city. Art. V, Sec. 3, gives this court appellate jurisdiction in civil cases only when the City is a party in its character as a county. We therefore hold that we have no appellate jurisdiction on this first ground, and that the divisional opinion was properly ruled on that point. Superior Press Brick Co. v. City of St. Louis (Mo. Div. 1) 152 SW. (2d) 178, 179(2); Lovins v. City of St. Louis, 336 Mo. 1194, 84 SW. (2d) 127.

[2] As to the second ground, supra, we hold the title to real estate is not involved, though it may be affected by the outcome of the instant condemnation suit; and that the divisional opinion was properly ruled on that point under Art. V, Sec. 3, supra. That ruling was based on Nettleton Bank v. Estate of McGauhey, 318 Mo. 948, 952, 2 SW. (2d) 771, 774-5(7, 8, 12), decided in Division 1, and Mo. P. & L. Co. v. Creed, 325 Mo. 1194, 1196(2), a unanimous decision of the court en banc. The latter adjudicated the exact point and overruled four prior decisions1 of this court to the contrary. The reason given in one of these overruled decisions, the Moberly case, where an easement over land was condemned, was that the landowner's right to the use and exclusive possession of the land was either lessened or taken away, and his interest thereby affected.

The Creed case, supra, has been followed in three decisions.2 One of them, the Day case, held a condemnation suit prosecuted for the purpose of determining the amount of damages due the landowner, does not involve the title to real estate except incidentally, unless the question of public use be drawn into the proceeding. And since shortly thereafter a line of eleven decisions3 has been rendered, holding that if the plaintiff's power to make the condemnation is challenged in the suit, title to real estate is involved in a constitutional sense, and appellate jurisdiction will be in this court. The first of these decisions3 was the Gordon case, written by Ragland, C.J., who had also written the Day case just a month earlier. But the Gordon case cited no precedent.

The Richter case was not based on the Gordon case, but on the Tarkio case,1 which had been overruled in the Creed case. The Mitchell, Thomas, Franklin Bank, School District and Kirkwood cases, all followed the Gordon case, and held if the right to establish a public road is challenged [not necessarily on constitutional, but even on statutory grounds] title is involved and appellate jurisdiction is in this court. The Palmer case held the condemnation of a highway easement over land would directly take from the owner that much of his title, and therefore involve title, thus following (but not citing) the overruled Moberly case.1 The Hall and Welch cases followed the Palmer case. In the Union Electric case that company claimed an award of $3150 damages in a condemnation proceeding on the theory that it owned the fee title to the land condemned, and the court ruled it was not entitled to the money because it did not have any interest in the land. Held: title to real estate was involved, and this court had appellate jurisdiction.

All these decisions3 are wrong and should be overruled on the jurisdictional point, in the opinion of the writer. As held in the Creed case, quoting from the Nettleton Bank case, the title to real estate is not involved in any case in a constitutional sense under Art. V, Sec. 3, Const. Mo. 1945, and Art. VI, Sec. 12, Const. 1875, unless it be directly, and not collaterally, in issue. In a condemnation suit the plaintiff does not dispute the landowner's antecedent title. On the contrary he affirms it. That is the reason the owner is made a defendant. The object of the suit is to subject the land as his to a public use by condemnation under our Constitution and statutes. True, a condemnation suit does take part (or sometimes all) of the landowner's title and gives it to the condemnor for just compensation. But it does not follow that the title is in issue. It was always subject to that paramount right emanating from the Government. The issue is on the right to take all or a part of a conceded title in the particular case and on the compensation to be paid. It is analogous to the enforcement of a lien.

We have consistently held, ever since the adoption of the Constitution of 1875, that suits to foreclose mortgage, tax, mechanics' and other similar liens, voluntary or involuntary, do not involve title in a constitutional sense, even though the foreclosure there also may culminate in the taking of a part or all of the landowner's title. And it would not be asserted by anyone that if the lienholder's right or power to foreclose his lien is disputed and made an issue in the case, title would be "involved" in such sense as to give this court appellate jurisdiction.

The third ground for the appellant City's contention that this court has appellate jurisdiction under Art. V, Sec. 3, Const. 1945, necessitates the decision of two questions: whether a construction of the Federal and State Constitutions is involved; and whether the point has been sufficiently preserved for review. Before discussing them further facts must be stated.

The City's petition for the condemnation alleged the strip of land would be taken for use as a public street, pursuant to an ordinance. On the return date of the summons the respondent contemporaneously filed an answer and a motion to dismiss on the ground that the petition failed to state a claim upon which relief could be granted. The filing of both at once was permissible under Sec's 62 and 66 of the Civil Code. The answer alleged the strip of land was not subject to condemnation and that the condemnation would be null and void, as shown on the face of the petition and attached plat, because the proposed street would be a cul-de-sac solely for private use, "in violation of its constitutional rights under the Constitution of the United States and the State of Missouri." The motion said it would be null and void "under the applicable provisions of the Constitutions of the United States, State of Missouri" and the City Charter, which latter also provided for the condemnation of private property for public use. Neither the answer nor the motion cited any article or section of either Constitution.

Under Sec. 69 of the Civil Code the trial court held a hearing on the motion, at which the respondent introduced oral testimony and documentary evidence verifying respondent's contention that the strip of land would be a cul-de-sac terminating at the north property line of the Wabash Railroad; and that part of the strip had formerly been a private road and had been abandoned as such. The railroad land was shut off by a gate and there were tracks on it, but no buildings. The City did not dispute this evidence, but objected that it was immaterial.

The trial court sustained the motion to dismiss by a...

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