City of St. Louis v. Gleason

• Decision Date: 15 January 1884
• Citation: 15 Mo.App. 25
• Parties: CITY OF ST. LOUIS, Respondent, v. DORA GLEASON ET AL., Appellants.
• Court: Missouri Court of Appeals

15 Mo.App. 25

CITY OF ST. LOUIS, Respondent,

v.DORA GLEASON ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 15, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.W. C. MARSHALL, for the appellants: These proceedings being in invitum, no presumptions of jurisdiction are made. Every fact necessary to jurisdiction must affirmatively appear.-- Kansas City R. R. v. Campbell, 62 Mo. 585; Cole v. Cole, 3 Mo. App. 571; In re Burmeister, 56 How. Pr. 416. 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.--City Charter, Art. VI., sect. 2 (p.162, Rev. Ord.); Reynolds v. Schweinefus, 1 Sup. Ct. (Cin.) 113; Perkinson v. Partridge, 3 Mo. App. 60; Dillon Mun. Corp. (2d ed.), sect. 245, and cases there cited; The State v. City, 56 Mo. 277. That these omissions render these whole proceedings void for want of jurisdiction of the subject-matter, see The State v. St. Louis, 67 Mo. 403; Ellis v. Railroad Co., 51 Mo. 200. The amendment abandoned all former pleadings, and even where defendant has been personally served, no judgment can be rendered on an amendment pleading, without new service after such amendment.-- Janney v. Spedden, 38 Mo. 395; Ticknor v. Voorhis, 46 Mo. 110; Young v. Woolfolk, 33 Mo. 110; Hagood v. Hutton, 33 Mo. 244; Basye v. Ambrose, 28 Mo. 39; Neidenberger v. Campbell, 11 Mo. 359. This would be true even if the defendants had appeared generally to the original petition, and a fortiori, is it true as to defendants who had not appeared, even if they had been served.-- Huff v. Shepard, 58 Mo. 242; Ellison v. Martin, 53 Mo. 575.

LEVERETT BELL, for the respondent, cited City of St. Louis v. Richeson, 76 Mo. 470.

THOMPSON, J., delivered the opinion of the court.

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, judgment entered accordingly, and an appeal has been taken to this court.

I. The petition fails to show that the ordinance on which the proceeding is based was passed on the unanimous recommendation of the board of public improvements or on the petition of the owners of the major part of property fronting on the proposed street, as required by section 2, of Article VI., of the charter. Rev. Stats. 1606. This section reads as follows: “Whenever the assembly shall provide by ordinance for establishing, opening, widening, or altering any street, avenue, alley, wharf, market-place, or public square, or route, or sewer, or water-pipe, either on the unanimous recommendation of the board of public improvements, or on the petition of the owners of a major portion of the ground fronting thereon, and it becomes necessary for that purpose to appropriate private property, the city counsellor, in the name of the city of St. Louis, shall apply to the circuit court of the eighth judicial circuit, or to any one of the judges in vacation, by petition,” etc. Unquestionably the proper reading of the above language is, that it is only upon an ordinance so passed that condemnation proceedings can be entertained by the circuit court. The question then is, whether, in order to give jurisdiction to the circuit court, to entertain a proceeding thereunder, it is necessary for the petition to show that the ordinance was passed, either on the unanimous recommendation of the board of public improvements or on the petition of the owners of a major portion of the ground fronting on the proposed street. It is a proceeding in which the circuit court exercises a special jurisdiction conferred by statute, in the exercise of which it does not proceed according to the course of the common law; and the rule in such cases is that the facts showing jurisdiction must affirmatively appear. Kansas City, etc., R. Co. v. Campbell, 62 Mo. 585; Cole v. Cole, 3 Mo. App. 571; Johnson v. Beazley, 65 Mo. 250, 255; Werz v. Werz, 11 Mo. App. 26, 31; Ells v. Pacific Railroad, 51 Mo. 200. The ordinance recited in the petition as the foundation of the proceeding, does not state that it was passed “either on the unanimous recommendation of the board of public improvements, or on the petition of the owners of a major portion of the ground fronting on the proposed street; nor does the petition state that such was the fact. If, therefore, the question were an open one, I should be disposed to think, as counsel for the appellants argue, that, in order to give the circuit court jurisdiction to condemn land in this summary mode, the city counsellor would have to exhibit in his petition an ordinance passed in pursuance of the charter provision above quoted. But the settled doctrine in this state is, that municipal ordinances, like acts of the legislature, are presumptively valid until the contrary appear; that in legal proceedings where rights are asserted under an ordinance which, in order to be valid, must have been passed in a certain way, or the passage of which must have been preceded by certain prescribed conditions, it is not necessary for the plaintiff to show affirmatively that the ordinance was passed in the prescribed way, or that the conditions precedent to its validity had taken place. Young v. St. Louis, 47 Mo. 492; St. Louis v. Foster, 52 Mo. 513; St. Louis v. Meyer, 13 Mo. App. 367. If the ordinance was not so passed, and if the conditions precedent did not exist, that is special matter of defence to be pleaded and proved by the defendant. Where the objection to the validity of the ordinance relates to matter which is formal, and as to which the charter provision which may have been disregarded, is directory merely, such objection constitutes no defence; but where the charter provision is a limitation upon the exercise of power, then it is not doubted that such an objection, pleaded and proved, would constitute a good defence to a proceeding in which the city attempts the execution of the ordinance. Perkinson v. Partridge, 3 Mo. App. 60. In this case the objection was not pleaded as matter of defence, and, therefore, we must hold that it was not well taken.

II. The next objection is that, after the original petition had been filed and commissioners appointed thereunder, the court, on motion of the plaintiff, set aside the order appointing the commissioners, and allowed the plaintiff ten days' time in which to file an amended petition, which was done; and that there was thereafter no new...